Principles of National Constitutionalism limiting Individual Claims in Human Rights Law
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Paul De Hert
Professor at the VUB (Free University of Brussels) and Head of the Department of Interdisciplinary Studies of Law. He is also Associated-Professor at Tilburg Unversity.
and
Stefan Somers
Working in the Research Group Fundamental Rights & Constitutionalism (FRC) at the VUB (Free University of Brussels).
Abstract
The scope of the fundamental right to freedom of religion has been broadly discussed in recent jurisprudence and doctrine. Doctrine has however paid little attention to the role of constitutionalism and its principles such as this of the separation of church and state and the division of power. These principles are often not mentioned as such in international human rights treaties. Does this mean that they are irrelevant in human rights adjudication?
This article addresses the proper function of constitutionalism in human rights jurisprudence and in settling religious conflicts more in general. The Lautsi judgment of the European Court of Human Rights is used as a trigger to look at the relationship between religion, constitutionalism and human rights, and at the legitimacy of supranational courts. The article argues that international human rights jurisprudence must take national constitutionalism and its principles into account when dealing with the freedom of religion, even when those principles are not explicitly enshrined in human rights treaties. For this the use of the margin of appreciation seems to be appropriate.
About the authors
Professor at the VUB (Free University of Brussels) and Head of the Department of Interdisciplinary Studies of Law. He is also Associated-Professor at Tilburg Unversity.
Working in the Research Group Fundamental Rights & Constitutionalism (FRC) at the VUB (Free University of Brussels).
© 2017 by Walter de Gruyter Berlin/Boston
Articles in the same Issue
- Inhalt
- Table of Contents
- Editorial
- Articles
- Principles of National Constitutionalism limiting Individual Claims in Human Rights Law
- Some Major Themes in the Study of Constitutionalism and Democracy in Africa
- A Constitutional Tradition in the Making: The Presidents’ Cases and the Role of Kosovo’s Constitutional Court in the Process of Democratic Consolidation
- Notes
- Constitutional Comparison and Legislation
- Developments Austria
- Focus: The Charter of Fundamental Rights of the European Union in the Austrian Constitutional Court’s case law
- EU-Law Infringements in Austria: Constitutional Review Restricted
- Failure to refer a preliminary question to the ECJ and the right to a lawful Judge
- The Charter of Fundamental Rights of the European Union to be treated like Constitutional Law
- The Charter of Fundamental Rights of the European Union as review standard in proceedings before the Constitutional Court
- Wording and Determinateness – Indeterminately Worded
- Rights of the Charter of Fundamental Rights as constitutionally guaranteed rights – VfSlg 14.886/1997 revisited?
- Can the constitutionality of omitting a public hearing in the Austrian Constitutional Court’s CFREU decision legitimately be based on the jurisdiction on Art 6 ECHR?
- The Austrian approach towards European Human Rights
- An Austrian enthusiasm towards European human rights protection
- Developments CEE
- Hungarian Constitutional Court: New Media Regulation partly under Constitutional Scrutiny
- Croatian Constitutional Court: The electoral procedure for voters/members of national minorities for representatives to the Croatian Parliament
- Book Reviews
- Said Amir Arjomand (ed), Constitutional Politics in the Middle East: With special reference to Turkey, Iraq, Iran and Afghanistan, Hart Publishing, 2008, ISBN 978-1-841-13774-2, xii + 210 pp0
Articles in the same Issue
- Inhalt
- Table of Contents
- Editorial
- Articles
- Principles of National Constitutionalism limiting Individual Claims in Human Rights Law
- Some Major Themes in the Study of Constitutionalism and Democracy in Africa
- A Constitutional Tradition in the Making: The Presidents’ Cases and the Role of Kosovo’s Constitutional Court in the Process of Democratic Consolidation
- Notes
- Constitutional Comparison and Legislation
- Developments Austria
- Focus: The Charter of Fundamental Rights of the European Union in the Austrian Constitutional Court’s case law
- EU-Law Infringements in Austria: Constitutional Review Restricted
- Failure to refer a preliminary question to the ECJ and the right to a lawful Judge
- The Charter of Fundamental Rights of the European Union to be treated like Constitutional Law
- The Charter of Fundamental Rights of the European Union as review standard in proceedings before the Constitutional Court
- Wording and Determinateness – Indeterminately Worded
- Rights of the Charter of Fundamental Rights as constitutionally guaranteed rights – VfSlg 14.886/1997 revisited?
- Can the constitutionality of omitting a public hearing in the Austrian Constitutional Court’s CFREU decision legitimately be based on the jurisdiction on Art 6 ECHR?
- The Austrian approach towards European Human Rights
- An Austrian enthusiasm towards European human rights protection
- Developments CEE
- Hungarian Constitutional Court: New Media Regulation partly under Constitutional Scrutiny
- Croatian Constitutional Court: The electoral procedure for voters/members of national minorities for representatives to the Croatian Parliament
- Book Reviews
- Said Amir Arjomand (ed), Constitutional Politics in the Middle East: With special reference to Turkey, Iraq, Iran and Afghanistan, Hart Publishing, 2008, ISBN 978-1-841-13774-2, xii + 210 pp0
