National constitutions historically embody the first legal source of rights protection. The development of universal and regional human rights instruments does not, in principle, aim at marginalizing these constitutional catalogues, by making them less useful. Indeed, those instruments only provide for a subsidiary, minimal protection, which national constitutions are allowed to overstep. Constitutions and treaties are thus deemed to assume their common project of human rights protection under the sign of complementarity. However, the constitutional practice of some States sometimes offers a more uncertain image. In some States, like Belgium, the question arises whether domestic constitutional law really adds value to the existing supranational protection of human rights. This questioning indirectly reveals a movement aiming at – or resulting in – the complete assimilation – i.e. a loss of substantial distinctiveness – between a constitutional and an international protection of rights and freedoms (section I). At the opposite, some other States like United Kingdom contemplate the constitutional “revival” as a kind of justification for the withdrawal from the supranational protection of human rights (section II). In this context, a movement of exclusion can be observed. This chapter will examine whether there is an intermediary position between assimilation and exclusion. We will more specifically try to highlight how European courts have developed tools of reasoning which recognize a meaning, a usefulness or a “weight” to the constitutional protection of Human Rights (hereafter “HR”), without giving this protection the decisive effect postulated by the logic of exclusion, or ignoring it according to the logic of assimilation. These tools of reasoning offer the possibility of a third approach in the relationships between the legal spheres; an integration, which guarantees coherent approaches of the common object, while maintaining the distinctive features of it (section III).
Sébastien Van Drooghenbroeck and Olivier Van der Noot
Sébastien Van Drooghenbroeck, Frédéric Krenc and Olivier Van der Noot
This chapter is intended to show how the RMT judgement of the European Court of Human Rights illustrates, six years after the leading case of Demir & Baykara, the remaining uncertainties and methodological blind spots of the ‘integrated approach’, according to which the Court is led to make use of ‘external sources’. Should such an approach be legally based on the ‘letter’ of article 31, §3, c of the Vienna Convention on the Law of Treaties or on the ‘evolutive and consensual’ interpretation of the ECHR? Should the use of ‘external sources’ as means for conventional interpretation remain ‘subsidiary’? Should the Court give more ‘weight’ to external sources resulting from a ‘concrete’ review of compatibility with fundamental rights? Could or should the integrated approach lead the Court, in the name of consistency and consensus, to a ‘levelling down’ of the conventional interpretation when the level of protection of the fundamental right at stake diminishes in the normative environment of the Convention? In the following discussion, these questions are addressed in the light of the recent Brussels’ Document on the Future of the Protection of Social Rights in Europe, laid down in the context of the Belgian Chairmanship of the Committee of Ministers of the Council of Europe. The proposed rewritten judgement, on its part, holds, contrary to the original ruling, that the United Kingdom has breached article 11 of the Convention.