Volume 24, Issue 1 (1-2017)                   EEBL 2017, 24(1): 10-1 | Back to browse issues page

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Buonamano D R. Towards a common law of human rights: the hermeneutics of deference in Strasbourg jurisprudence. EEBL. 2017; 24 (1) :10-1
URL: http://europeansp.org/article-18-79-en.html
Faculty of Law, University of Technology Sydney, NSW 2000 Australia
Abstract:   (48 Views)
The paper examines the scope for a common law of human rights through the jurisprudence of the European Court of Human Rights. It analyses the conceptual difficulties with the interplay of constitutional and supranational approaches to human rights violations. While supranational jurisdiction has constitutional features, it does not necessarily interact with national legal systems in a pluralistic way. Rather than equal jurisdiction, the subsidiarity principle dictates its function as one of guidance, a last resort. However, the Court’s perceived need to balance judicial rights protection with the democratic self-governance of the member states creates problems with compatibility and legal precedent. While there is a disjunction between the supranational human rights interpretive model, whose focus is on achieving consensus and serving communitarian interests, and the national-constitutional interpretive model, which is particularist and framed in the autochthonous language of that legal system, there is an increasingly functional juridical dialogue between Strasbourg and the national authorities. On the one hand, the European Court’s harmonisation practice of determining minimum legal standards can serve as a catalyst for the development of human rights norms; on the other, national constitutional courts engaged in legal interpretation in the context of adjudication must negotiate a course that reflects domestic methods and concerns while giving effect to the authoritative nature of Strasbourg jurisprudence.
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Received: 2019/08/7 | Accepted: 2019/08/7 | Published: 2019/08/7

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