Edited by Eva Brems and Saïla Ouald-Chaib
Chapter 6: Between assimilation and exclusion: is there room for an ‘integrated’ approach towards constitutional and international protection of human rights?
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).
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