THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND NATIONAL CONSTITUTIONAL REORDERING

Abstract

In The Identity of the Constitutional Subject, Michel Rosenfeld reflects on the potential for forms of robust constitutionalism to develop beyond the nation-state. International regimes, he insists, are qualitatively different from states in this regard. The former engage in functionally specific "governance," rather than in sovereignty-based "government." As important, relative to long-established nation-states, the agents of transnational constitutionalism typically confront more material, ideological, and religious diversity than do those who would seek to construct or transform national constitutional identities. In the international realm, because "there seems to be nothing akin to the bonds of the national identity," the "possibility of a transnational constitutional identity ... remains very much in question." Nonetheless, Rosenfeld argues, something akin to constitutionalism at the transnational level has appeared in Europe-at least in the rights domain. The outcome partly depends on the fortunes of "rights patriotism," an ideological movement whose force has expanded as the norms and practices of adjudicating fundamental rights have converged since the 1950s in Europe and elsewhere. Here I will argue that the European Convention on Human Rights (ECHR, or, the Convention) is, in fact, quickly evolving into a transnational constitutional regime.5 The evidence in support of this claim is partly provided by how the regime operates after its transformation through Protocol No. 11.