The new Kosovo constitution and its relationship with the European Convention on human rights

Constitutionalization "without" ratification in post-conflict societies

Paul de Hert, F. Korenica

Research output: Contribution to journalArticleScientificpeer-review

Abstract

This article analyses the incorporation (‘constitutionalization’) of the ECHR and ECtHR case law in the new Constitution of Kosovo, deconstructing a novel form of integration of international instruments into a domestic system of constitutional human rights protection. The combination and merger of the national and international, without the presumed prerequisites of statehood and ratification are remarkable and uncommon. The authors examine the mechanics of the new legal system integrating the ECHR and ECtHR case law into domestic law, considering issues such as rank, applicability, effect and function of the Convention and the ECtHR case law in a system based on constitutionalization without ratification. Whilst this is a fascinating theme–as the interaction between international and domestic instruments is closely linked to the success of the reconstruction of the institutions of the fledgling Kosovan state and a unique concept of the use and combination of national and domestic systems of protection is put to a test –it remains scarcely considered in legal or academic literature.
Original languageEnglish
Pages (from-to)143-166
Number of pages24
JournalZeitschrift für ausländisches öffentliches Recht und Völkerrecht
Volume76
Issue number1
Publication statusPublished - 2016

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ECHR
ratification
Kosovo
case law
constitution
society
statehood
merger
legal system
mechanic
human rights
reconstruction
Law
interaction

Keywords

  • Fundamental rights

Cite this

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abstract = "This article analyses the incorporation (‘constitutionalization’) of the ECHR and ECtHR case law in the new Constitution of Kosovo, deconstructing a novel form of integration of international instruments into a domestic system of constitutional human rights protection. The combination and merger of the national and international, without the presumed prerequisites of statehood and ratification are remarkable and uncommon. The authors examine the mechanics of the new legal system integrating the ECHR and ECtHR case law into domestic law, considering issues such as rank, applicability, effect and function of the Convention and the ECtHR case law in a system based on constitutionalization without ratification. Whilst this is a fascinating theme–as the interaction between international and domestic instruments is closely linked to the success of the reconstruction of the institutions of the fledgling Kosovan state and a unique concept of the use and combination of national and domestic systems of protection is put to a test –it remains scarcely considered in legal or academic literature.",
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