Legal Nationalism and European Judicial Review

Abstract

In Western Europe, judicial review means review by international courts. EU member states are subject to the jurisdiction of the Court of Justice of the European Union, which has expanded with the Treaty of Lisbon’s Charter of Fundamental Rights, as well as potential EU accession to the European Convention on Human Rights (ECHR). They are also members of the Council of Europe, and parties to the ECHR. Acceding to the ECHR and allowing individual petition to the European Court of Human Rights (ECrtHR) in Strasbourg brought significant changes to both substantive rights and legal institutions throughout Europe. One of the most fundamental is the adoption of ex post judicial review, not only at the international level, but within countries that have been traditionally hostile to rights review as well. Several old European democracies, including the United Kingdom and France have now adopted forms of constitutional review their jurists once vehemently opposed. These reforms are a measure of both the unease and the embeddedness of parliaments in a European rights system. In contrast to the essentially internal factors usually discussed in relation to the choice of constitutional review in a liberal democracy, I argue that the recent rise of judicial review in Western Europe seems to be driven by the need to respond to external developments, namely EU integration and the expansion of ECHR-related jurisprudence. The growing importance of the Strasbourg Court, the use of the ECHR by national judges, and the EU’s upcoming accession to that Convention have been accompanied by renewed calls for national bills of rights, and by an expanded domestic rights protection mandate for national courts. Although they offered various and conflicting rationales for the changes, many politicians argued that their national constitutions should be the primary instrument for preserving citizens’ rights. Transnational review displaces the control that national parliaments once had over a core part of their constitutions: the relationship between the state and its citizens. By harnessing this opposition to judicial review under transnational law, long-time supporters of national judicial review were able to put the issue on the national agenda, and in several countries, to convince parliaments to adopt it. The new judicial review will certainly not defend against the encroaching European judicial review, but it creates a space for national jurisdictions within the European order. Given these countries’ position in the EU, domestic law-based rights review is unlikely to be an effective alternative to review under the ECHR by either domestic or international courts. Doing so would require significant changes to ECrtHR jurisdiction and such changes are not forthcoming. Despite the strikingly nationalist rhetoric accompanying them, the reforms thus represent a conciliatory stance towards integration.