Integrated Rights Protection in the European and International Context: Some Reflections about Limits and Consequences

Abstract

The universal claim of human rights and the cultural and political dimension of fundamental right stand in an apparent tension. The same is true for different regimes of fundamental rights that govern the same substantive situations within the same territory. An integrated rights protection must ideally be able to put these tensions at work in order to attain a justified and adequate level of protection in the European, national and international context. Different courts make claims about how the different rights regimes should relate to each other, which can be and are justified within the internal logic of their different legal orders. The protection of the individual is in this claim-making only one consideration amongst several. The claims are also strongly influenced by systematic considerations of how the particular decision fits into the specific system; in what way it may change the relationship between the different orders; and ultimately, what it may mean in terms of shifts of powers between different judicial actors or between the judiciary and the other branches of government. These system specific considerations makes it unlikely that any satisfactory answer can be found in (exclusively) studying judicial practices to questions of how the different regimes should relate to each other or whether they should integrate to reach a more justified and adequate level of protection. This paper argues that the question of how the different regimes should interrelate requires explicating and developing general theoretical considerations of who should decide what a justified and adequate level of rights protection is. In support of this central argument, the paper firstly explains why fundamental rights protection has been the area in which most tensions have arisen between the different legal orders. Secondly, it sets out the current judicial practice of pursuing rights coherence while keeping external rights regimes at an interpretational distance. Finally it develops its argument that the two central questions are ultimately questions of a theoretical nature: Who should determine the interpretation of human rights norms? How much integration of fundamental rights protection is justifiable and adequate?