Farahat: Enhancing ‘Constitutional Justice’ by Using External References: The ECtHR's Reasoning on the Protection Against Expulsion

Anuscheh Farahat (Max Planck Institute for Comparative Public Law and International Law) has posted Enhancing ‘Constitutional Justice’ by Using External References: The ECtHR's Reasoning on the Protection Against Expulsion (Leiden Journal of International Law, Vol. 28, pp. 303-322, 2015). Here's the abstract:

This paper argues that the European Court of Human Rights significantly contributed to an important shift in migration law beginning in the late 1980s and resulting in a significantly enhanced scheme for protection against expulsion in Europe. This reflects the changing role of the ECtHR from a court primarily concerned with providing ‘individual justice’ to a court aiming at enabling ‘constitutional justice’.

The aim of the paper is to contextualize this shift with a historical view and to understand it in methodological terms. It argues that the Court supports its dynamic interpretation of the right to privacy in Article 8 of the European Convention of Human Rights in crucial judgments by reference to often non-binding documents issued by the Council of Europe. In this regard, the case of protection against expulsion illustrates a particular feature of the Court’s turn to ‘constitutional justice’, namely the increased application of the principle of systemic integration. Then, the paper will scrutinize the impact of the ECtHRs enhanced protection scheme on domestic migration law by using Germany as a case study. It claims that the ECtHR arguably became a crucial agent in transforming international human rights standards into binding domestic law. However, the paper reveals that once the substantial standard developed by the ECtHR has been formally implemented in domestic law domestic decisions are reviewed with significantly less scrutiny. This limited impact may again be explained by the ‘constitutional turn’ which results in a pragmatic tendency to proceduralisation in the jurisprudence of the ECtHR.