Turning Criticism into Strength
Edited by Spyridon Flogaitis, Tom Zwart and Julie Fraser
Chapter 1: Introduction: The need for both international and national protection of human rights – the European challenge
In opening a major international conference on judicial protection against the executive in 1968, the president of the German Federal Constitutional Court defined the constitutional state as ‘a state in which the system of government is, at least in principle, understood as a system ruled by law’. In such a system of government, the essential features are ‘the subjection of the supreme power to the law, the separation of powers and the respect for the general, fundamental rights of man’. Since 1968 the legal world has changed in many ways. Today, it is impossible to consider issues of the rule of law and the protection of fundamental rights simply in terms of national constitutions. In relation to the protection of human rights, national sovereignty must now be appraised in the light of international norms. As the great British judge Lord Bingham said in his book The Rule of Law, written in the last months of his life, ‘The interrelationship of national law and international law, substantively and procedurally, is such that the rule of law cannot plausibly be regarded as applicable on one plane but not on the other.’ This transformation in the rule of law in Europe has largely been effected by the European Court of Human Rights. During half a century this body has been the foremost regional mechanism in the world for enabling disputed questions of fundamental rights to be decided in a judicial forum.