A Constitutionalist Approach to the European Convention on Human Rights The Legitimacy of Evolutive and Static Interpretation 1st Edition by Lisa Sonnleitner 150994687X 9781509946877

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ISBN 10: 150994687X

ISBN 13: 9781509946877

Author: Lisa Sonnleitner

This book presents a new constitutional argument for the legitimacy of evolutive interpretation of the ECHR. It constructs a model, in which evolutive and static constitutional principles are balanced with each other. The author argues that there are three possible interpretive approaches in time-sensitive interpretations of the ECHR, but that only one of them is justifiable by reference to the constitutional principles of the ECHR in every single case. The ECHR’s constitutional principles either require an evolutive or static interpretation or they do not establish a preference relation at all, which leads to a margin of appreciation of the member states in the interpretation of the Convention. The balancing model requires the determination of the weights of the competing evolutive and static constitutional principles. For this purpose, the author defines weighting factors for determining the importance of evolutive or static interpretation in a concrete case.

A Constitutionalist Approach to the European Convention on Human Rights The Legitimacy of Evolutive and Static Interpretation 1stTable of contents:

Part I. Fundamentals

1. On the Concepts of Law and Human Rights

I. The Dual Nature of Law

II. The Concept of Human Rights

2. A New Concept of Evolutive and Static Interpretation

I. Evolutive Interpretation Within a Normative Theory of Interpretation

II. Evolutive Interpretation as an Element of the Time Dimension of Interpretation

III. Static Interpretation as the Parameter for Evolutive Interpretation

3. The Legitimacy of Evolutive Interpretation Revisited

I. Evolutive Interpretation and the ECHR

II. Evolutive Interpretation and the Vienna Convention on the Law of Treaties

III. Evolutive Interpretation and General Principles of International Law

4. The Criticism against Evolutive Interpretation Revisited

I. Democratic Legitimacy of Evolutive Interpretation

II. Sovereignty

III. Rule of Law

PART II. THE ECHR CONSTITUTION

5. The Argument of Constitutionalism

I. Constitutionalism in the International Realm

II. Cosmopolitan Constitutionalism

III. Deliberative or Discursive Constitutionalism

6. The Constitutional Nature of the ECHR

I. The Constitutional Status of the ECHR’s Judicial Review Mechanism

II. Locating the ECHR in the International Constitutionalism Debate

7. Three Basic Constitutional Principles of the ECHR

I. The Three Pillars of the Council of Europe as Constitutional Principles

II. The Ideal and Real Dimension in the ECHR

III. Time Dimension of Interpretation and the Dual Nature of the ECHR

Part III. Balanced Legitimacy Model

8. Setting the Scene for Balancing at the Interpretation Stage

I. The Distinction Between Rules and Principles

II. Connecting Static and Evolutive Interpretation to Formal and Material Principles

III. Balancing in the Different Stages of Law Application

IV. Balancing of Interpretive Canons

9. The Balancing Model for Evolutive and Static Interpretation

I. Basic Ideas on the Balancing Model

II. Critical Aspects of Balancing in Human Rights Interpretation

III. Internal Structure of the Balancing Model

IV. Weight Formula

10. External Justification

I. How to Accord Weights in the ECHR?

II. Weighting Rules in the Time Dimension of Interpretation

III. The Epistemic Reliability of the Underlying Premises

Part IV. The Balanced Legitimacy Model Applied

11. The Right to Divorce

I. Facts of the Case

II. Time Dimension of Interpretation

III. The ECtHR’s Reasoning

IV. The Balancing of Static and Evolutive Interpretation

V. The Legitimacy of the Evolutive Approach to Interpretation

12. The Right to Assisted Suicide

I. Facts of the Case

II. Time Dimension of Interpretation

III. The ECtHR’s Reasoning

IV. The Balancing of Static and Evolutive Interpretation

V. The Legitimacy of the Static Approach to Interpretation

13. The Right to Preservation of the Environment

I. Facts of the Case

II. Time Dimension of Interpretation

III. The ECtHR’s Reasoning

IV. The Balancing of Static and Evolutive Interpretation

V. A Stalemate Case

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