The European Court of Human Rights and Transnational Judicial Dialogue
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Carla M Zoethout
Associate professor of Comparative constitutional law, University of Amsterdam.
Abstract
Over the past decade, the European Court of Human Rights (ECtHR) seems more and more inclined to use foreign sources of law, that is to say, law that does not originate in the Convention itself or in one of the Member States of the Council of Europe. Unlike in the US, there is little discussion in Europe about this form of judicial dialogue in the case-law of the ECtHR. This paper seeks both to clarify transnational dialogue by the ECtHR and find ways to justify this practice, against the backdrop of the American debate on this topic. First, the concept of transnational judicial dialogue is analysed (Part II). Then judicial dialogue as it presents itself in the judgments of the ECtHR is assessed, especially when non-Convention or foreign law is being used in a substantive way (Part III). Subsequently, an attempt is made to define when and why the use of foreign law by the ECtHR can be considered a justifiable approach in judicial decision-making (Part IV). The paper rounds off with some concluding remarks (Part V).
About the author
Associate professor of Comparative constitutional law, University of Amsterdam.
© 2017 by Walter de Gruyter Berlin/Boston
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Articles in the same Issue
- Table of Contents
- Articles
- Erosion of Constitutional Rights in EU Law: A Call for ‘Substantive Co-operative Constitutionalism’
- Where’s Waldo? Looking for the Doctrine of Proportionality in Indian Free Speech Jurisprudence
- Understanding Brazilian Administrative Law, the Related Literature, and Education: A Comparison with the System in the United States
- The European Court of Human Rights and Transnational Judicial Dialogue
- Notes & Essays
- EU Law in the Czech Republic: From ultra vires of the Czech Government to ultra vires of the EU Court?
- Developments Austria
- ‘No to Meat’-March on Holy Saturday - Freedom of Assembly and the Constitutional Court’s new Standard of Review
- Blackening of Files for Hypo Committee of Inquiry illegal
- Developments CEE
- Constitutional Court of Romania: Religion in Schools
- Constitutional Court of Romania: Constitutionalization of the Obligations under International Treaties and European Union binding Acts
- Slovak Constitutional Court: Citizenship Law in the European Context
- Book Reviews
- Review Essay: Jeff King, Judging Social Rights, Cambridge University Press, 2012, ISBN 9781107 400 320, 370 pp.
