Dynamic and Evolutive Interpretation of the ECHR by Domestic Courts? An Inquiry into the Judicial Architecture of Europe
|Published in:||Aust, H., Nolte, G. (Eds.), The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence (pp. 175-198). Oxford: Oxford University Press.|
|Type:||Book contributions and chapters|
Book chapter from the publication "The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence". Can national courts change the meaning of the terms of the ECHR through interpretation? The purpose of this contribution is to expand on this innovative and interesting idea and to inquire into it in an empirical (heuristic) as well as in an analytical manner. To do so, it will be necessary to have a basic understanding of what evolutive interpretation actually means in the context of the ECHR (subsection 2). We will then look into how a judicial system comprising European and national elements can be constructed. On this basis, possible models of international and national judiciaries working together will be developed. Those models represent the judicial architecture (subsection 3). Based on the models, the practice of domestic courts in three member states will be reviewed in an in- depth analysis, namely in Germany, Ireland, and the United Kingdom (Section II). Following this, we will look at the problem from the European perspective (Section III) and think about the legal (subsection 1), institutional (subsection 2) and normative (subsection 3) aspects of the question. In conclusion (Section IV), the insights will be summarized by five themes.