The european court of justice and its relations with the european court of human rights: The quest for enhanced reliance, coherence and legitimacy

Common Market Law Review

Volumn 46, Issue 1, 2009, Pages 105-141

  Harpaz, Guy ^a,b  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

^b Israeli Association for the Study of European Integration   (Israel)

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EID: 60349097114     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (326)

1. See Lebeck, "The European Court of Human Rights on the Relation between ECHR and EC law: The Limits of Constitutionalisation of Public International Law", 62 Zor (2007), 195, at 196. Human rights are also regulated to a lesser extent under the EFTA process, by other Council of Europe treaties and by the work of the Organization for Security and Co-operation in Europe.
2. Haltern, "Pathos and Patina: The Failure and Promise of Constitutionalism in the European Imagination", 9 ELJ (2003), 14, at 15.
3. For selective literature on the EU human rights order, see, in particular von Bogdandy, "The European Union as a Human Rights Organization? Human Rights and the Core of the European Union", 37 CML Rev. (2000), 1307;
4. Douglas-Scott, "A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis", 43 CML Rev. (2006), 629;
5. Ahmed and de Jesus Butler, "The European Union and Human Rights: An International Law Perspective", 17 EJIL (2006), 771;
6. Alston and Weiler, "An 'Ever Closer Union' in Need of a Human Rights Policy" in Alston (Ed.), The EU and Human Rights (OUP, 1999);
7. Weiler, "Does Europe Need a Constitution? Reflections on Demos, Telos and the German Maastricht Decision", 1 ELJ (1995), 219;
8. Weiler and Lockhart, '"Taking Rights Seriously' Seriously: The European Court and its Fundamental Rights Jurisprudence", 32 CML Rev. (1995), 51 and 32, 579 (part II).
9. For support and further analysis, see Heifer, "Consensus, Coherence and the European Convention on Human Rights", 26 Cornell International Law Journal (1993), 133.
10. Heifer and Slaughter, "Towards a Theory of Effective Supranational Adjudication", 107 Yale Law Journal (1997-1998), 273, at 276 and 298.
11. For a survey of the references by the ECJ to the ECHR, see Guild and Lesieur, The European Court of Justice on the European Convention on Human Rights (Kluwer Law International, 1998).
12. For further analysis of the interface between them, see Douglas-Scott, op. cit. supra note 3;
13. Lebeck, op. cit. supra note 1;
14. Canor, "Primus Inter Pares - Who is the Ultimate Guardian of Fundamental Rights in Europe?", 25 EL Rev. (2000), 3;
15. Rosas, "Fundamental Rights in the Luxembourg and Strasbourg Courts" in Baudenbacher, Tresselt and Orlygsson (Eds.), The EFTA Court: Ten Years On (Hart Publishing, Oxford and Portland, Oregon, 2005), p. 163, at 168-169;
16. Jacobs, "Judicial Dialogue and the Cross-Fertilization of Legal Systems: The European Court of Justice", 38 Texas International Law Journal (2003), 547, at 556;
17. Bronckers, "The Relationship of the EC Courts with other International Tribunals: Non-Committal, Respectful or Submissive?", 44 CML Rev. (2007), 601;
18. Editorial Comments, "Relations between International Courts and Community Courts: Mutual Deference or Subordination?", 42 CML Rev. (2005), 581;
19. Wetzel, "Improving Fundamental Rights Protection in the European Union: Resolving the Conflict and Confusion between the Luxembourg and Strasbourg Courts", 71 Fordham Law Review (2003), 2823;
20. Janis, "Fashioning a Mechanism for Judicial Cooperation in European Human Rights Law among Europe's Regional Courts", in Lawson and de Blois (Eds.), The Dynamics of the Protection of Human Rights in Europe - Essays in Honour of Henry G.S. Schermers (Volume III) (Martinus Nijhoff, Dordrecht, 1994), p. 211;
21. Lawson, "Confusion and Conflict? Diverging Interpretations of the European Convention on Human Rights in Strasbourg and Luxembourg" in Lawson and de Blois, ibid., at p. 220.
22. See also Slaughter, "A Typology of Transjudicial Communication", 29 U. Rich. L. Rev (1994-1995), 99 who examines the interface between the two Courts in the wider context of transjudicial communication.
23. See Weiler, "Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights within the Legal Order of the European Communities", 61 Wash. L. Rev. (1986), 1103, at 1110, for an analysis of the historical reasons why the EC does not have a written Bill of Rights.
24. Case 29/69, Stauder v. Ulm, [1969] ECR 419, para 7;
25. Case 11-70, Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, [1970] ECR 1125, para 4.
26. For analysis, see Weiler, op. cit. supra note 7, at 1103.
27. Ahmed and de Jesús Butler, op. cit. supra note 3, at 775.
28. For support, see Weiler, "Fundamental Rights and Fundamental Boundaries: On Standards and Values in the Protection of Human Rights" in Neuwahl and Rosas (Eds.), The European Union and Human Rights (Martinus Nijhoff, the Hague/Boston/London, 1995), p. 51, at 60.
29. See also Weiler, op. cit. supra note 7, at 1122-23 who argued that had the ECJ bowed to the specificity of a legal order of any given Member State, that would have destroyed "the cardinal principle" of the supremacy of EU law.
30. Ahmed and de Jesús Butler, op. cit. supra note 3, at 774.
31. See e.g. von Bogdandy, op. cit. supra note 3, at 1330 et seq.
32. See also Allot in his Memorandum presented to the House of Lords Select Committee on the European Communities, quoted in Lawson, op. cit. supra note 6, at p. 228: The ECJ human rights jurisprudence has "virtually no legal certainty at all. It is hard to believe that they have any conditioning effect whatsoever on public authorities in the Community".
33. See Coppel and O'Neill, "The European Court of Justice: Taking Rights Seriously?", 31 CML Rev. (1992), 669 who argue that the ECJ was not so much concerned with defending human rights but with accelerating European integration and increasing the EC's competences at the expense of the Member States' competences, concluding that "The Court refuses to take the discourse of fundamental rights seriously. It thereby both devalues the notion of fundamental right[s] and brings its own standing into dispute."
34. Ibid., at 692.
35. See Section 3 below.
36. Douglas-Scott, op. cit. supra note 3, at 630.
37. Case 4/73, Nold v. Commission, [1974] ECR 491.
38. Case 36/75, Roland Rutili v. Minister for the Interior, [1975] ECR 1219.
39. For support and analysis, see Alston and Weiler, op. cit. supra note 3, 30.
40. For extensive analysis of the ECJ references to the Strasbourg jurisprudence and references to these cases, see Douglas-Scott, op. cit supra note 3.
41. Cases 46/87 & 222/88, Hoechst AG v. Commission, [1989] ECR 2859, para 13;
42. Case C-260/89, ERT v. DEP, [1991] ECR 1-2925, para 41, reaffirmed in Opinion 2/94, Re the Accession of the Community to the European Human Rights Convention, [1996] ECR-I-1759, para 33. Rosas provides the following chronology of that "gradual rapprochement" of the ECJ towards the Strasbourg Court: (i) 1950-1969 - no reference by the ECJ to human rights; (ii) 1969 - fundamental rights are granted by the ECJ the status of a General Principle of Community law; (iii) 1975 onwards - the human rights jurisprudence develops based explicitly on the ECHR; (iv) 1989 - the ECHR is granted "special significance" within the EC legal order; (v) 1990s - increasing references to individual judgments of the Strasbourg Court, Rosas, "Fundamental Rights in the Luxembourg and Strasbourg Courts" in Baudenbacher et. al, op. cit. supra note 6, p. 163, at 168-169.
43. See Douglas-Scott, op. cit. supra note 3.
44. Helfer and Slaughter, op. cit. supra note 5, at 324-325.
45. See Douglas-Scott, op. cit. supra note 3;
46. Helfer and Slaughter, op. cit. supra note 5, at 325.
47. See Douglas-Scott, op. cit. supra note 3, at 650.
48. Jacobs, op. cit. supra note 6, at 556.
49. See also Bronckers, op. cit. supra note 6, who argues that the EC Courts have difficulties with the WTO dispute settlement system because the latter is perceived as a form of diplomacy. Such assessment must be contrasted with the more deferential approach the EC courts have taken towards the ECHR.
50. See Douglas-Scott, op. cit. supra note 3, at 644-652.
51. Coppel and O'Neill, op. cit. supra note 12, at 678.
52. Ibid.
53. See Douglas-Scott, op. cit. supra note 3, at 656.
54. See Weiler, op. cit. supra note 7, at 1130 who analyses the verdict in Hauer as an example of the ECJ's failure to make a particular effort to analyse the ECHR.
55. See Douglas-Scott, op. cit. supra note 3, at 650;
56. Bronckers, op. cit. supra note 6.
57. Coppel and O'Neill, op. cit. supra note 12. Compare with Rosas, op. cit. supra note 6, at 170-171 who provides the following account: As the EU/EC is not a Contracting Party to the ECHR, the Convention is not, per se, part of Community law. Instead the Convention plays its role as an authoritative guideline for determining the general principles of Community law which the Court applies. While the ECHR and the Strasbourg case law thus do not have the same legal force for the EU and its institutions as for the ECHR Contracting Parties, there seems to be a need "to take the Strasbourg jurisprudence fully into account in Luxembourg as well as in Brussels".
58. See, for example, Lebeck, op. cit. supra note 1, at 207.
59. See Ahmed and de Jesus Butler, op. cit. supra note 3, at 784-788, who advance the following line of argument: Community law, by virtue of Art. 307 EC, cannot be considered to override any human rights obligations incurred by Member States before they accede to the EU. It may thus be argued that although the EU has not acceded to the ECHR, the obligations incurred by its Member States by virtue of their ECHR membership impose obligations on the EU per se. But cf. de Witte, "The Past and Future Role of the European Court of Justice in the Protection of Human Rights" in Alston, op. cit. supra note 3, p. 859, at 878: International human rights treaties and national constitutions and their respective case law do not bind the ECJ.
60. For support, see, for example, Lebeck, op. cit. supra note 1, at 207;
61. Lawson, op. cit. supra note 6, at 231.
62. Wetzel, op. cit. supra note 6, at 2839: By acknowledging the rights found within the ECHR without allowing the EC to sign the Convention, the ECJ reassured those concerned that fundamental rights protection at the Community level would fail to meet the minimum standard in the ECHR without making itself subservient to the Strasbourg Court.
63. See Spielmann, "Human Rights Case Law in the Strasbourg and Luxembourg Courts -Conflicts, Inconsistencies, and Complementarities" in Alston, op. cit. supra note 3, p. 757, at 764-766 for an analysis of cases in which the ECJ has either ignored human rights issues, ignored the Strasbourg Regime and/or the jurisprudence of the Strasbourg Court or ruled differently or even in conflict with that jurisprudence.
64. See also Douglas-Scott, op. cit. supra note 3, at 648-650;
65. Wetzel, op. cit. supra note 6, at 2843.
66. See Weiler, op. cit. supra note 7, at 1126: "This mélange of imperative and facultative language is a reflection of a deeper duality of discourse by the Court. The imperative discourse is an attempt to assuage the fears of Member State courts and other interested parties that the jurisdictional claim will bring about a reduction of protection. The facultative discourse is an attempt by the Court not to tie its own hands".
67. See, for example, the arguments of Kadi according to which the re-examination procedure before the UN Sanctions Committee, based on diplomatic protection, does not afford protection of human rights equivalent to that guaranteed by the ECHR as construed by the case law cited.
68. Opinion of A.G. Poiares Maduro of 16 Jan. 2008 in Case C-402/05 P, Yassin Abdullah Kadi v. Council and Commission, especially paras. 36-37, available curia.europa.eu.
69. See in particular paras. 210, 234 and 287 of the CFI Ruling in Kadi, Case T-315/01, Yassin Abdullah Kadi v. Council and Commission, [2005] ECR 11-3649 and Case T-306, Yusuf and Al Barakaat International Foundation v. Council and Commission, [2005] ECR II-3533.
70. Joined Cases C-402/05 P & C-415/05 P, Kadi and Al Barakaat International Foundation v. Council and Commission, judgment of the 3 Sept. 2008, nyr.
71. For a first comment, see Tridimas and Gutierrez-Fons, "EU Law, International Law and Economic Sanctions against Terrorism: The Judiciary in Distress?" (forthcoming), Fordham International Law Journal.
72. See further on Kadi, in this Review, the articles by Halberstam and Stein, and by Kunoy and Dawes, and the case note by Gattini.
73. See also Harpaz, "Judicial review by the European Court of Justice of UN Smart Sanctions against terror in the Kadi dispute", 14 EFA Rev. (forthcoming).
74. Judgment, ibid., at paras. 310-314.
75. Ibid., para 283.
76. Ibid., para 335.
77. Ibid., para 356.
78. Ibid., para 344.
79. Ibid., paras. 360, 363 and 368.
80. Ibid.
81. See Douglas-Scott, op. cit. supra note 3, at 650.
82. The ECHR is a classic international agreement (see para 37 of the Opinion), while as the ECJ indicated in Kadi, cited supra note 40, paras. 315-316: ". . .the question of the Court's jurisdiction to rule on the lawfulness of the contested regulation has arisen in fundamentally different circumstances....the review by the Court of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement".
83. For extensive analysis, see Douglas-Scott, op. cit. supra note 3, at 645-647.
84. Ibid.
85. Cited supra note 38.
86. See also the European Parliament, the Council and the Commission Joint Declaration on Human Rights (5 April 1977) who declared themselves bound in their actions by the general principles contained in the constitutions of the EC Member States and in the ECHR, see O.J. 1977, C 103/1.
87. See the Single European Act 1986 (HMSO, Cmnd 9758) which stipulated that the Member States are "determined to work together to promote democracy on the basis of the fundamental rights recognized in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice".
88. Opinion 2/94, cited supra note 18.
89. See Art. F(2) of the Common Provisions of the Treaty on European Political Union 1992.
90. Art. 6 provides: "1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law... 2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms...and as they result in the constitutional traditions common to the Member States, as general principles of community law".
91. For analysis, see Wetzel, op. cit. supra note 6, at 2839.
92. See consolidated versions of the Treaty on European Union.
93. Charter of Fundamental Human Rights of the European Union (O.J. 2000, C 363/01), 18 Dec. 2000.
94. See the preamble of the Charter which attempts to create a normative bridge between the two Regimes and the two Courts: "This Charter reaffirms.. .the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights" (italics added, G.H.).
95. For further analysis, see Wetzel, op. cit. supra note 6, at 2825, who argues that the Charter affirms a strong fundamental rights protection standard and harmonizes the ECHR's interpretations by the two Courts.
96. See also Sacerdoti, "The European Charter of Fundamental Rights: From a National State Europe to a Citizen's Europe", 8 Colum. J. Eur. L. (2002), 37, at 49 et seq. for further analysis of the Charter's legal status.
97. See Landau, "The Future of the EU Charter of Fundamental Rights" in Neuwahl and Haack (Eds.), Unresolved Issues of the Constitution for Europe - Rethinking the Crisis (Les Edition Thémis, Montréal, Canada, 2007), pp. 333-357, who analyses the various overlapping rights between the two Regimes.
98. Charter of Fundamental Human Rights of the European Union, cited supra note 59.
99. See Treaty establishing a Constitution for Europe, O.J. 2004, C 310/01.
100. See Art. 6 TEU as amended by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 Dec. 2007, O.J. 2007, C 306/01.
101. See Douglas-Scott, op. cit. supra note 3, at 640-644.
102. See Editorial Comments, cited supra note 6, at 582: As long as the ECJ succeeds in maintaining a broadly effective protection of human rights, the Strasbourg Court will not look too closely at individual cases.
103. See Douglas-Scott, op. cit. supra note 3, at 630 and 637-639, who analyses this theme in light of the judgment in Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland [2006] 42 EHRR 1, available at www.echr.coe.int/eng/Press/2005/June/GrandChamber judgmentBosphorusAirwaysvIreland300605.htm.
104. Jacobs, op. cit. supra note 6, at 550-553.
105. See, for example, Lebeck, op. cit. supra note 1, at 213.
106. Douglas-Scott, op. cit. supra note 3, at 631-632 and 639.
107. For analysis, see Shany, The Competing Jurisdictions of International Courts and Tribunals (Oxford University Press, 2003), at pp. 278-279.
108. For support, see Douglas-Scott, op. cit. supra note 3, at 630: Human rights protection in Europe is still unsatisfactory, especially in the field of Justice and Home Affairs, in which a balance has been struck in favour of security over justice.
109. See de Witte, op. cit. supra note 32, at 878;
110. Toth, "The European Union and Human Rights: The Way Forward", 34 CML Rev. (1997), 491, at 494;
111. See also Alston and Weiler, op. cit. supra note 3, at p. 30 and Wetzel, op. cit. supra note 6, at, 2851, who argues that the integrationist motives of the ECJ cause it to afford less human rights protection than that of the Strasbourg Court.
112. But see Weiler, op. cit. supra note 7, at 1130 who analyses instances in which the ECJ itself provided protection which in substance is superior to that afforded by the ECHR.
113. Martinez, "Towards an International Judicial System", 56 Stanford Law Review (2003-2004), 429, at 481.
114. For support, see, for example, Lebeck, op. cit. supra note 1, at 233.
115. For support, see von Bogdandy, op. cit. supra note 3, at 1331.
116. Alston and Weiler, op. cit. supra note 3, at 19.
117. See Wetzel, op. cit. supra note 6, at 2846 who goes as far as arguing that the integrity of the European fundamental rights protection project rests on the uniform interpretation of European human rights law.
118. Ibid., at 2859-2860. Wetzel contends that the incorporation of the Charter into the EU legal order would entail the proclamation of a legally binding commitment to harmonized ECHR jurisprudences. That would, according to him, reduce if not eliminate the possibility of diverging interpretations of the rights afforded by the Convention that would result in an EU standard less protective than that of the ECHR.
119. See, for example, von Bogdandy, op. cit. supra note 3, at 1337.
120. For general support, see Martinez, op. cit. supra note 74, at 487: Decisions of specialized international courts in their area of expertise should receive greater deference from other international courts than decisions of a general international court with a broad jurisdiction.
121. For further support and analysis, see Merrilis, The Development of International Law by the European Court of Human Rights, 2nd ed. (1993), p. 18, who analyses the means by which the Strasbourg Regime can be useful in construing other human rights treaties.
122. Slaughter, op. cit. supra note 6, at 111 and 120-121;
123. See Janis, op. cit. supra note 6, at 215-216 for the impact of the ECHR on other regional human rights regimes.
124. See also Lord Slynn in Alconbury: ". . .in the absence of special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights", R (on the application of Alconbury Developments Ltd) v. Secretary of State for the Environment Transport and the Regions, [2003] 2 AC 295, para 26.
125. See, by analogy, Masterman, "Taking the Strasbourg Jurisprudence into Account: Developing a 'Municipal Law of Human Rights' under The Human Rights Act", 54 ICLQ (2005), 907, at 925, for the use of the Strasbourg Regime to bolster human rights protection in the United Kingdom.
126. For support and further analysis, see Leben, "Is there a European Approach to Human Rights?" in Alston, op. cit. supra note 3, p. 69, at 76.
127. For general support, see Carozza, "Uses and Misuses of Comparative Law in International Human Rights: Some Reflections on the Jurisprudence of the European Court of Human Rights", 73 Notre Dame L. Rev. (1997-1998), 1217, at 1235: "Rooted in the transcendent value of human dignity, the idea of human rights necessarily contains within it an aspiration to the universal. Rooted in the specificity of religious, moral, linguistic, and political communities, the concrete instantiation of that idea necessarily results in particularity and pluralism. The perennial challenge...is to mediate between these poles, seeking the universal through the particular and giving meaning to the transcendent in the concrete". For further analysis, see Weiler, op. cit. supra note 9, 51, 74.
128. See Case C-145/04, Spain v. United Kingdom, [2006] ECR 1-7917 and Case C-300/04, Eman and Sevinger, [2006] ECR I-8055 as analysed by Besselink, in 45 CML Rev. (2008), 787.
129. See also Weiler, op. cit. supra note 7, at 1130.
130. For analysis, see Shany, "Toward a General Margin of Appreciation Doctrine in International Law?", 16 EJIL (2006), 907, at 919.
131. For support, see Masterman, op. cit. supra note 84, at 915 and 924: (i) the Convention is not an exhaustive statement of fundamental rights; (ii) The Convention is rather a weak statement of positive rights; (iii) The Strasbourg Court displays a tendency towards paucity in respect of actually defining the content of the rights it protects; (iv) There is the application of the margin of appreciation.
132. See also Harris, O'Boyle and Warbrick, Law of the European Convention of Human Rights, (Butterworths London 1995), p. 26, who refer to the Strasbourg verdicts as "essentially declaratory".
133. For general analysis of this theme, see Slaughter, op. cit. supra note 6, at 119 et seq. For general analysis of the merits of comparative analysis, see McCrudden, "A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights," 20 Oxford Journal of Legal Studies (2000), 499, at 514.
134. Shany, op. cit. supra note 71, at p. 68 et seq.
135. See also Slaughter, op. cit. supra note 6, at 103 who defines such judicial course of action as "Horizontal Communication".
136. For analysis, see Ahmed and de Jesus Butler, op. cit. supra note 3, at 781-783;
137. See also Canor, op. cit. supra note 6, who analyses the Strasbourg ruling in Matthews, judgment of 18 Feb. 1999, 28 E.H.R.R. 361, and reaches the conclusion that that judgment manifests a departure from the deferring approach towards the ECJ in favour of a more vertical, dominance approach.
138. For analysis, see Canor, op. cit. supra note 6.
139. Shany, op. cit. supra note 71, at p. 69.
140. See Canor, op. cit. supra note 6, at 20: Concurrent jurisdiction might reinforce the protection of individuals against infringement of their human rights, contributing to the evolution of the ECJ's human rights jurisprudence. Such concurrent jurisdiction may also urge the ECJ to synchronize its case law with that of the Strasbourg Court, resulting in an integrated and harmonized implementation of the Convention in the Community.
141. See Jacobs, op. cit. supra note 6, at 551 and Canor, op. cit. supra note 6, at 20, who analyse the risk of divergent interpretations which is inherent in the existence of any two independent judicial systems.
142. Douglas-Scott, op. cit. supra note 3, at 639.
143. For analysis of the promotion of normative harmonization, see Shany, op. cit. supra note 71, at pp. 279-280.
144. Gibson and Caldeira, "The Legitimacy of Transnational Legal Institutions: Compliance, Support, and the European Court of Justice", 39 American Journal of Political Science (1995), 459: Legitimacy provides courts with authority and with the required latitude to adopt just verdicts that are contrary to the perceived immediate interests of their constituents.
145. See Weiler and Lockhart, op. cit. supra note 3, at 625 who argue that the ECJ "does not have quite the same rootedness in the social fabric of European society as its national counterparts. In Europe the demos is still national".
146. Shany, op. cit. supra note 71, at p. 108 lists the coordinated allocation of jurisdictions, specific rules regulating jurisdictional competition and hierarchic structures as features that grant coherence to a national judicial system.
147. See the observations of the UK Government in Watson and Belmann, defending its position according to which the ECJ should not review measures of EU Member States for their compliance with human rights standards, as quoted in and analysed by Lawson, op. cit. supra note 6, at 250: "Any exercise of overlapping jurisdiction by the institutions established by the Convention and by the Court of Justice of the European Communities could give rise to confusion and conflict. The generalized and somewhat imprecise language of the Convention and of the exceptions... can give rise to questions of construction which fall with the ultimate jurisdiction of the institutions created by the Convention. Similarly, it is for those institutions alone to make a ruling on a national measure which is contrary to the Convention but compatible with Community law".
148. Shany, op. cit. supra note 71, at pp. 284-285.
149. For further support and analysis, see Slaughter, op. cit. supra note 6, at 114-115, who contends that supranational tribunals can use trans-judicial communication to bolster their effectiveness by convincing national courts to follow their lead.
150. See also the words of Justice La Forest of the Canadian Supreme Court: "The greater use of foreign material affords another source, another tool for the construction of better judgments... The greater use of foreign materials by courts and counsel in all countries can, I think, only enhance their effectiveness and sophistication", La Forest, "The Use of American Precedents in Canadian Court", 46 Maine L. Rev (1994), 211 at 216.
151. See also, by analogy, Shany, op. cit. supra note 71, at p. 119.
152. See also Shany, Regulating Jurisdictional Relations between National and International Courts (OUP, 2007), at pp. 174-175 and 181 who argues that when two proceedings are rooted in international law, normative systemization considerations add further support for dialogue, cooperation and reliance. Rulings of international law courts usually carry a higher authoritative force: "international courts possesses, as a rule, greater international law expertise, they typically transcend narrow national interest and escape the potentially distorting national law prism through which national courts perceive international law. Hence, international courts' pronouncements on the contents of international law are likely to attract more comity-inspired compliance".
153. For further analysis, see Martinez, op. cit. supra note 74, at 448.
154. Helfer and Slaughter, op. cit. supra note 5, at 323-325.
155. Ibid., at 326.
156. For further analysis, see Slaughter, op. cit. supra note 6, at 118 who analyses situations in which courts draw on opinions of foreign courts without attribution.
157. For further support and analysis, see de Witte, op. cit. supra note 32, at 890.
158. See also Weiler and Lockhart, op. cit. supra note 3, at 81 who express a bias in favour of human rights judicial review by courts that are not directly part of the polity the measures of which come under review.
159. For example, see Heifer and Slaughter, op. cit. supra note 5, at 323-325 who argue that the success of the two Courts may be attributed to their legal reasoning.
160. See e.g. von Bogdandy, op. cit. supra note 3, at 1329 et seq.
161. For general analysis of this theme, see Alexy, "Style of Judgments" in MacCormick and Summers (Eds.), Interpreting Precedents: A Comparative Study (Ashgate Dartmouth, 1997).
162. Douglas-Scott, op. cit. supra note 3, at 655-660.
163. For support, see Heifer and Slaughter, op. cit. supra note 5, at 323.
164. See also Kentridge, "Parliamentary Supremacy and the Judiciary Under a Bill of Rights: Some Lessons from the Commonwealth", (1991) Public Law, 96 at 101 who acknowledges that the verdicts of the Strasbourg Court are often well reasoned and persuasive.
165. See, by analogy, Shany, op. cit. supra note 104, at p. 187: The application of the doctrine of margin of appreciation by the Strasbourg Court is dependent on the comparative advantage of local authorities - broader margins are afforded to local authorities with respect to questions they are better situated to assess.
166. For general analysis, see Shany, op. cit. supra note 88, at 919.
167. For support, see by analogy, Higgins, "A Babel of Judicial Voices? Ruminations from the Bench", 55 ICLQ (2006), 791, at 799 who finds "ironic" the situation in which "the proponents of "unity" in international law should think it possible for a specialist tribunal to retain full powers in "specialist" areas of law while referring to the ICJ issues of "general" international law. Are the particular and the general so easy to distinguish and slice up?
168. Shany, op. cit. supranote 104, at pp. 108-121.
169. See Shany, op. cit. supra note 71, especially at pp. 11, 118 and 284 and the references upon which he relies.
170. Skouris, "The ECJ and the EFTA Court under the EEA Agreement: A Paradigm for International Cooperation between Judicial Institutions" in Baudenbacher et al., op. cit. supra note 6, p. 123, at 127.
171. Gibson and Caldeira, op. cit. supra note 99, at 484-485 who argue that when the ECJ adjudicates cases in the area of commercial law, acceptance and compliance are problematical. Other areas of law, including human rights, generate more controversy, and as such may give rise to problems of acceptance and compliance.
172. Gibson and Caldeira argue that the ECJ is becoming more visible, emerging from an era of technical-legal policy-making into a period of more explicitly political policy. This, coupled with judicial activism, threatens its institutional legitimacy, see Gibson and Caldeira, op. cit. supra note 99, at 465. They further conclude, based on statistical study, that the ECJ has only limited legitimacy.
173. See also Weiler and Lockhart, op. cit. supra note 3, at 624: The visibility of the Court is likely to increase, and with it so are attacks on the ECJ.
174. For support see Heifer and Slaughter, op. cit. supra note 5, at 371: "An increase injudicial dialogue can reinforce the concept of a global sphere of law that is at least partially protected from direct political interference... Judge s who look to the decisions of their fellow judges in other countries or regions are acknowledging engagement in a common enterprise in which the power of reason and the advantage of prior experience with a particular problem create a presumption of persuasion. In referring to and reinforcing one another, they create a space that is insulated, but not isolated, from politics, economics, and society".
175. For support, see Carozza, op. cit. supra note 86: by displacing the source of the developing norms from the judges on the Court to the other States of the European region, the comparative exercise protects the Court from charges of excessive judicial activism.
176. For further support and analysis, see Gibson and Caldeira, op. cit. supra note 99, at 464.
177. Douglas-Scott, op. cit. supra note 3;
178. Bronckers, op. cit. supra note 6.
179. Bronckers, op. cit. supra note 6.
180. See Douglas-Scott, op. cit. supra note 3, at 648-650 and Bronckers, op. cit. supra note 6, analysing, in particular, Opinion 1/91, Draft Agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area, [1991] ECR I-6079.
181. For analysis and examples, see Bronckers, op. cit. supra note 6;
182. de Witte, op. cit. supra note 32, at 890-891, who argues that there is no loss of prestige for the ECJ in acceding to the ECHR.
183. See also Spielmann, op. cit. supra note 35, at 779: The Luxembourg Court and the Strasbourg Court are courts of equal dignity, important institutions responsible for judicial functions in two international legal systems.
184. Masterman, op. cit. supranote 84.
185. For general analysis, see Shany, op. cit. supra note 104, at p. 7: Hierarchy might serve as a justification for the lack of judicial coordination as it reduces the relevance of the other set of proceedings and offers courts a clear and simple method to resolve potential jurisdictional conflicts, thereby confirming the "self-contained" nature of their respective regimes.
186. But see Shany, ibid., at p. 88.
187. For support, see note 89 supra.
188. See the position of Lord Irvine who proposed that "our courts must be free.. .to give a lead to Europe as well as to be led" (HL Deb vol 583 col 515, 18 Nov. 1997) and that "The courts will often be faced with cases that involve factors perhaps specific to the United Kingdom which distinguish them from cases considered by the European Court ..it is important that our courts have the scope to apply that discretion so as to aid the development of human rights law" (HL Deb vol. 584 cols 1270-1 19 Jan 1998).
189. Masterman, op. cit. supra note 84, at 916.
190. See Vienna Convention on the Law of Treaties, Art. 31(1), opened for signature 23 May, 1969, 1155 U.N.T.S. 331, 34, according to which the tribunal should construe an international treaty according to its "object and purpose".
191. See, by analogy, McCrudden, op. cit. supra note 90, at 518: An essential condition for comparative analysis for inspiration purposes is that the legal institutions are based on common fundamental assumptions and aim at common goals.
192. See the analysis of Shany, op. cit. supra note 104, at p. 187: The application of the doctrine of margin of appreciation by the Strasbourg Court is dependent on the indeterminacy of the applicable standard; broader margins are granted over issues lacking a European consensus.
193. See para 44 of the Opinion, cited supra note 38.
194. For the relevant reference of the ECJ to this theme, see note 49.
195. For analysis, see Canor, op. cit. supra note 6, at 13.
196. For general analysis, see Shany, op. cit. supra note 71, at p. 34.
197. For European-focused analysis, Heifer and Slaughter, op. cit. supra note 5, at 297;
198. Douglas-Scott argues that key differences exist between these courts. The Strasbourg Court was set up as a freestanding human rights court to protect individuals against human rights abuses by Member States of the ECHR. The ECJ was established with a much broader jurisdiction.
199. See paras. 36-37 and 44 of the Opinion, cited supra note 38.
200. For the relevant reference of the ECJ to this theme, see note 49 supra.
201. For analysis, see Douglas-Scott, op. cit. supra note 3, at 648-650 who analyses the areas where the Luxembourg Court departs from the jurisprudence of the Strasbourg Court and vice versa and the pronouncements of A.G. in that regard.
202. See, for example, Douglas-Scott, op. cit. supra note 3, at 653: Such persuasive authority carries more weight than an authority drawn from a more distant legal system, such as the US.
203. See Toth, op. cit. supra note 73, at 499: The two Courts interpret their constitutive legal documents according to their own objectives, while the two sets of objectives do not necessarily coincide. The aim of the Strasbourg Regime is to protect the individual as a human being, while the aim of the Luxembourg Regime is to further economic and social integration.
204. Delmas-Marty, The Richness of Underlying Legal Reasoning, in Delmas-Marty (Ed.), The European Convention for the Protection of Human Rights: International Protection Versus National Restrictions (1992), p. 319, at 322, as quoted in Carozza, op. cit. supra note 86, at 1227.
205. Martinez, op. cit. supra note 74, at 463;
206. Heifer and Slaughter, op. cit. supra note 5, at 277 and 294;
207. Carozza, op. cit. supra note 86, at 1227.
208. Martinez, op. cit. supra note 74, at 463;
209. Heifer and Slaughter, op. cit. supra note 5, at 277 and 294.
210. For further support, see Arévelo, "Adjudication of International Disputes in Europe: The Role of the European Court of Justice and the European Court of Human Rights", University of Illinois EUC Working Paper, No. 6 (2006), at 2 who contends that the two Regimes are committed to a common objective: to secure peace and prosperity in Europe and to achieve an ever closer union among its peoples. In support of his line of argument, Arévelo compares the wording of the Preamble of the Treaty establishing the European Community, 25 March, 1957, O.J. 2002, C 325, with Art. 1, para (a), of the Treaty of London establishing the Council of Europe, 5 May 1949, E.T.S. No. 1.
211. For further support, see McCrudden, op. cit. supra note 90, at 522.
212. Helfer and Slaughter, op. cit. supra note 5, at 276 and 298.
213. Martin Estebanez, "The Protection of National or Ethnic, Religious and Linguistic Minorities" in Neuwahl and Rosas, op. cit. supra note 9, p. 133, at 158-159.
214. For support, see Jacobs, op. cit. supra note 6, at 552.
215. See also Bronckers, op. cit. supra note 6, who analyses ECJ rulings which acknowledge that the ECJ is being strongly influenced by rulings of the EFTA Court.
216. For further analysis, see Skouris, op. cit. supra note 118, at 125-128. It must be remembered, however, that the EEA was designed to provide for a common EU-EFTA homogeneous economic regime. Skouris argues (p. 128 of his contribution) that the ECJ-EFTA Court model of cooperation cannot be applied on a larger scale: The rapport between the ECJ and the EFTA Court is essentially on a bilateral level, both courts have similar areas of competence within their respective legal orders and there are specific treaty provisions aimed at achieving the harmonization of the case law of the two Courts.
217. For support, see Kentridge, op. cit. supra note 112, at 101-103.
218. See de Wet, "The International Constitutional Order", 55 ICLQ (2006), 51, for the debate pertaining to European constitutionalization.
219. See Lebeck, op. cit. supra note 1, at 201.
220. Loizidou v. Turkey, 310 Eur Ct. H. R. (ser A) at 27 (1995).
221. For analysis, see Lebeck, op. cit. supra note 1, at 202.
222. Alston and Weiler, op. cit. supra note 3, at 30.
223. Report of the Court of Justice on Certain Aspects of the Application of the Treaty on European Union, submitted to the European Council in preparation of the IGC (May 1995) at 4;
224. de Witte, op. cit. supra note 32, at 869.
225. Opinion of A.G., op. cit. supra note 126, as analysed by Helfer and Slaughter, op. cit. supra note 5, at 293.
226. Shany, op. cit. supra note 71, at p. 106.
227. See also Slaughter, op. cit. supra note 6, at 102 who argues that certain unifying features exist in relation to courts that conduct transnational communication, namely an emphasis on judicial autonomy, reliance on persuasive authority and a sense of common judicial identity and enterprise.
228. Douglas-Scott, op. cit. supra note 3, at 662-663.
229. Ibid.
230. Heifer and Slaughter, op. cit. supra note 5, at 277.
231. See Weiler, op. cit. supra note 9, at 74.
232. See Kentridge, op. cit. supra note 112, at 101-103 who argues with respect to the opinion of the British public about the Strasbourg Court that the "decisions of a court with this enlarged membership are unlikely to win greater respect in this country for the principles embodied in the Convention".
233. Eva Brems, quoted in Carozza, op. cit. supra note 86, at 1227.
234. Quoted in Heifer and Slaughter, op. cit. supra note 5, at 276.
235. See also Judge Martens: "...To the extent that the number of Member States increases, this side of the Court's mandate gains in weight, for in such a larger, diversified community the development of common standards may well prove the best, if not the only way of . . . ensuring that the Convention remains a living instrument..", Cossey v. United Kingdom 184 Eur. Ct. H.R. (Ser. A) (1990), at 28 (Martens J., dissenting).
236. See ec. europa.eu/enlargement/countries/index-en.htm.
237. Leben, op. cit. supra note 85, at 90.
238. See Carozza, op. cit. supra note 86, at 1227 for a similar argument with respect to the Strasbourg Regime: It is because the European system is supposed to be derived from the national systems of the Member States that the comparative argument carries so much weight.
239. See McCrudden, op. cit. supra note 90, at 508 who provides the example of the Singapore courts who display particular resistance to the jurisprudence of the Strasbourg Court.
240. Douglas-Scott, op. cit. supra note 3, at 653.
241. For support, see Lebeck, op. cit. supra note 1.
242. See Leben, op. cit. supra note 85, at 94, who relies on a document adopted by the Conference of Heads of State and of Government in Copenhagen on 14 Dec. 1973, according to which the safeguarding of the principles of representative democracy, the rule of law and social justice, the aim of economic progress and respect for human rights are fundamental components of a European identity.
243. See e.g. von Bogdandy, op. cit. supra note 3, at 1337;
244. Douglas-Scott, op. cit. supra note 3, at 630 and 651.
245. For support see Weiler, op. cit. supra note 7, at 1108 who contends that human rights may serve as an integrational instrument because basic freedoms enshrined and protected by law are among the elements which give society and its Members a sense of identity.
246. See, for example, von Bogdandy, op. cit. supra note 3, at 1328-1329;
247. Judt, Postwar (Heinemann, 2005) at p. 799, as analysed by Douglas-Scott, op. cit. supra note 3, at 631-632.
248. See von Bogdandy, op. cit. supra note 3, at 1328-1329 who refers to the first Consideration of the Charter, which stipulates a "peaceful future based on common values", and the function of the Union and therefore the ECJ to "contribute(s) to the development of these common values".
249. See Judge Martens who justifies the search for common European approach and standards by referring to the preamble to the ECHR, which mentions the need to achieve enhanced unity between Member States and perceives human rights as "best maintained" by a "common understanding and observance of... Human Rights" (note 162).
250. See Weiler and Lockhart, op. cit. supra note 3, at 625 who argue that fundamental human rights typically protect individuals against the establishment, general public opinion and majorities and hence judicial activism in this sphere might erode the legitimacy of the Court.
251. See Shany, op. cit. supra note 104: In cases of jurisdictional interaction judges ought to consider the interests of the disputing parties in efficient resolution of the dispute, as well as the interests of the legal regime under which their court operates and the interest of the overarching international legal system in maintaining consistency and averting conflicts.
252. See, for example, Wetzel, op. cit. supra note 6, at, 2851, who argues that the integrationist motives of the ECJ cause it to afford less protection than that of the Strasbourg Court.
253. Etzioni, "The Community Deficit", 45 JCMS (2007), 23.
254. Douglas-Scott, op. cit. supra note 3.
255. For analysis, see Maduro, "Striking the Elusive Balance between Economic Freedom and Social Rights in the EU" in Alston, op. cit. supra note 3, at pp. 449-472.
256. Toth, op. cit. supra note 73, at 514.
257. See Glendon, Rights Talk - The Impoverishment of Political Discourse (1991), p. 158 who argues that the composition of the Strasbourg Court "guarantees that the collective wisdom of a wide variety of legal systems will be brought to bear on any issue that comes before it..."
258. See Stafford v. United Kingdom, [2002] 35 EHRR 32, para 68: Where the Court reminded us that it has "regard to the changing conditions in contracting states and respond.. .to any emerging consensus as to the standards to be achieved".
259. For support, see Heifer and Slaughter, op. cit. supra note 5, at 316-317: The ECHR demonstrated an acute awareness of the tension between the preferences of national decision makers and the requirements of the European Convention. The ECHR has thus developed the concept of a "margin of appreciation," acknowledging an area of discretion for national governments when applying and interpreting the Treaty. In striking the balance between deference and independent judicial review, the ECHR searches for the adequate degree of consensus or harmony among the national laws of its contracting Members.
260. For general analysis, see Shany, op. cit. supranote 88.
261. For analysis of case law and scholarship, see Heifer and Slaughter, op. cit. supra note 5, at 325.
262. See Slaughter, op. cit. supra note 6, at 120-121: "As the European Court of Human Rights... surveys the common constitutional provisions and practices of the states under its jurisdiction and disseminates national norms from one country to another through the medium of national courts, it is effectively collaborating with these national courts on the development of a common European law of human rights".
263. For support and further analysis, see Lebeck, op. cit. supra note 1, at 206.
264. Weiler and Lockhart, op. cit. supra note 3, at 78-79.
265. For indirect support, see Mancini, "The Making of a Constitution for Europe", 26 CML Rev. (1989), 595, at 597.
266. See also Lebeck, op. cit. supra note 1, at 205: Certain national courts of some EU Member States stipulated that the standard of protection of fundamental rights under EC law has to be by and large comparable to that of their domestic legal system, and the manner in which the ECJ can meet that requirement is to adopt ECHR-compatible standards.
267. Douglas-Scott, op. cit. supranote 3.
268. ERT/DEP, cited supra note 18.
269. Case 12/86, Meryem Demirel v. Stadt Schwäbisch Gmünd, [1987] ECR 3719, 3754, para 28.
270. For analysis, see Estebanez, op. cit. supra note 146, at 160.
271. For a critique regarding such accession, see Landau, op. cit. supra note 61.
272. For an opposing view, see Weiler and Lockhart, op. cit. supra note 3, at 81.
273. See Treaty of Lisbon, cited supra note 64.
274. Toth, op. cit. supra note 73, at 499-509.
275. See Rosas, "Fundamental Rights in the Luxembourg and Strasbourg Courts" in Baudenbacher et. al, op. cit. supra note 6, p. 163, at 173;
276. Costello, "The Bosphorus Ruling of the ECrtHR: Fundamental Rights and Blurred Boundaries in Europe", 6 Human Rights Law Review (2006), 87.
277. Douglas-Scott, op. cit. supra note 3, at 630 and 637-639, analysing Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland, [2006] 42 EHRR 1.
278. See also Cameron, "The European Convention on Human Rights, Due Process and United Nations Security Council Counter-Terrorism Sanctions", www.coe.int, at 3: The principle of good faith means that Art. 103 of the UN Charter cannot be invoked by an ECHR Member, either when it is acting with the SC and/or when it is implementing a SC resolution, to avoid its obligations under the ECHR.
279. See Wetzel, op. cit. supra note 6, at 2839-2842 who analyses such eventuality and argues that such an exercise of conflicting jurisdiction might damage the legitimacy of the two Courts and hinder their ability to protect fundamental rights.
280. See Alston and Weiler, op. cit. supra note 3, at 30.
281. Shany, op. cit. supra note 71, at p. 3.
282. Per Justice Scalia, Roper v. Simmons, [2005] 543 U.S. 551 125, S.Ct. 1183 at 1226.
283. See also Scalia, "Commentary", 40 St. Louis ULJ (1996), 1119 at 1122: "...We are not some international priesthood empowered to impose upon our free and independent citizens supra-national values that contradict their own".
284. Martinez, op. cit. supra note 74, at 481.
285. See Bronckers, op. cit. supra note 6, who warns against a situation where the EC Courts will operate in clinical isolation from other international tribunals.
286. For the Luxembourg Court reliance on WTO law, see e.g. Case C-53/96, Hermès, [1998] ECR 1-3603, as analysed by Bronckers and Kuijper, "WTO law in the European Court of Justice", 42 CML Rev. (2005), 1313.
287. See the WTO Appellate Body which decided that trade agreements are "not to be read in clinical isolation from public international law," WTO Appellate Body, Report of the Appellate body in United States - Standards for Reformulated and Conventional Gasoline, WTO Doc WT/DS2/AB/R, at 16 (20 May 1996), reprinted in 35 I.L.M. 603 (1996).
288. See Judge Shahabuddeen of the ICTY and ICTR Appeals Chamber who suggested that an international court "cannot behave as if the general state of the law in the international community were not of its concern; to act on that blinkered view is to wield power divorced from responsibility". Such a court has a "legal duty" to take account of the need for coherence in the whole field in rendering its verdicts, 230. Prosecutor v. Semanza, Decision, ICTR-97-20A, (ICTR App. Ch., 31 May, 2000), 29, as placed in a general context by Martinez, op. cit. supra note 74, at 486.
289. For the particular suitability of dialogue to the judicial task, see Martinez, op. cit. supra note 74, at 467 who analyses the approach of Alexander Hamilton on this issue.
290. L'Heureux-Dubé, "The importance of dialogue: Globalisation and the international impact of the Rehnquist Court", (1998) Tulsa LR, 15. Art. 38(1) (d) of the ICJ Statute lists the sources of international law, to include as a secondary source the decisions of other courts.
291. See Glendon who argues that ". . .in Australia, Canada, and New Zealand, national law is increasingly caught up in a process of cross-fertilization among legal systems," Glendon, Rights Talk- The Impoverishment of Political Discourse (1991), p. 158.
292. Through, for example, formal citation of foreign judgments.
293. See, for support, Heifer and Slaughter, op. cit. supra note 5, at 373 who refer to personal contact and professional cross-citation that may ultimately build a sense of transnational judicial solidarity.
294. See also Skouris, op. cit. supra note 118, at 127 for such informal cooperation between the two Courts;
295. Shany, op. cit. supra note 104, at pp. 100-102.
296. See McCrudden, op. cit. supra note 90, at 511, for the distinction between explicit and non-explicit reference to judicial decisions in other jurisdictions.
297. See Heifer and Slaughter, op. cit. supra note 5, at 373: The verdicts that stem from dialogue and global cooperation create a set of principles informed by and building on one another, textually and culturally differentiated as necessary but acknowledging the promise of universality.
298. Slaughter, "A Global Community of Courts", 44 Harv. Int'l L. J. (2003), 191, at 192-193.
299. See also Martinez, op. cit. supra note 74, at 436: As a sociological matter, international courts are increasingly linked by a common culture. Over time, the same people often move from one court to another as judges or lawyers, carrying with them shared notions of what courts do and a commitment to a shared ideal of the rule of law.
300. Bronckers, op. cit. supra note 6.
301. See Perpetual Peace: A Philosophical Sketch in Kant's Political Writings (1795), (Hans Reiss (Ed.),1970) pp. 93-130, as analysed by Martinez, op. cit. supra note 74, at 462-464.
302. See supra note 104.
303. For further analysis, see Higgins, op. cit. supra note 115;
304. Gibson and Caldeira, op. cit supra note 99;
305. McCrudden, op. cit. supra note 90;
306. Slaughter, op. cit. supra note 6, who classified transjudicial communication by form, degree of reciprocal engagement, and function. In another publication, Slaughter, op. cit. supra note 211, at 192-193 argues that the courts participate in a common judicial enterprise of constitutional cross-fertilization: They face common substantive and institutional problems, they learn from one another's experience and reasoning, and they cooperate directly to resolve specific disputes. Their institutional identity and the professional identity of the judges who sit on them are forged more by their common function of resolving disputes under rules of law than by the differences in the law they apply and the parties before them.
307. See also Martinez, op. cit. supra note 74 who identified an emerging judicial system, serving as the building block of the "federalism of free nations".
308. For further analysis, see de Wet who advances the case for an emerging international constitutional order consisting of an international community, an international value system and rudimentary structures for its enforcement. Under that system, different national, regional and functional (sectoral) constitutional regimes form the building blocks of the international polity that is underpinned by a core value system common to all communities and embedded in a variety of legal structures for its enforcement, see op. cit. note 149 supra.
309. For further support and analysis, see Slaughter, op. cit. supra note 6, at 132;
310. Lebeck, op. cit. supra note 1, at 233.
311. See also Douglas-Scott, op. cit. supranote 3: Courts in human rights cases are more and more frequently looking to other jurisdictions.
312. For support, see Nelken, "Disclosing/Invoking Legal Culture: An Introduction", 4 Social and Legal Studies (1995), 435, 440, who argues that in an interdependent global system marked by borrowing and lending across cultural boundaries, human rights is one of the areas of law with the greatest ability to travel.
313. For further support, see McCrudden, op. cit. supra note 90, at 501, who analyses the situation in which Bills of Rights provisions in one country increasingly affect the drafting of equivalent provisions in other countries, while most post-Second World War constitutions have a common core of human rights provisions.
314. See Weiler and Trachtman, "European Constitutionalism and its Discontents", 17 North-western Journal of International Law & Business (1996), 354, at 354: "European Community law is no nirvana, it has contributed to our worldview both as substantive demonstration of one development path and as the instrument of reformation of our perceptions of international law".
315. Harpaz, "Normative Power in Europe and the Problem of a Legitimacy Deficit: An Israeli Perspective", 12 EFA Rev. (2007), 89.
316. Ibid.
317. See Alston and Weiler, op. cit. supra note 3, at 3-8 who describe the current state of affairs as "ironic": The Union highlighted the incongruity and indefensibility of combining an active external policy stance with what in some areas comes close to an abdication of internal responsibility. In an era when universality and indivisibility are the touchstones of human rights, an external policy which is not underpinned by a comparable comprehensive and authentic internal policy can have no hope of being taken seriously.
318. See, for example, von Bogdandy, op. cit. supra note 3, at 1337.
319. Toth, op. cit. supra note 73, at 494.
320. Ibid., at 512-520. Toth argues that the absence of such a system is a result of purely historical factors.
321. See also Wetzel, op. cit. supra note 6, at 2846 who goes as far as arguing that the integrity of the European fundamental rights protection project rests on the uniform interpretation of European human rights law.
322. Opinion 2/94, cited supra note 18, at para 34.
323. Landau, op. cit. supranote 61.
324. For analysis, see Wetzel, op. cit. supra note 6, at 2859-2860 who contends that the incorporation of the Charter into the EU legal order would entail the proclamation of a legally binding commitment to harmonized ECHR jurisprudences, reducing if not eliminating the possibility of diverging interpretations of the rights afforded by the Convention that would result in an EU standard less protective than that of the ECHR.
325. Cf. A.G. Darmon in the Orkem case: "This Court may therefore adopt, with respect to provisions of the Convention, an interpretation which does not coincide exactly with that given by the Strasbourg authorities, in particular the European Court of Human Rights. It is not bound, in so far as it does not have systematically to take into account, as regards fundamental rights under Community law, the interpretation of the Convention given by the Strasbourg authorities", Case 374/87, Orkem v. Commission, [1989] ECR 3283, at 3337-3338.
326. For that purpose the ECJ should draw, once again, on the experience of the ECHR Member States. Masterman, op. cit. supra note 84.