Historical and Contemporary Perspectives
The issue of European constitutionalism paradigmatically illustrates the conceptual, political and legal difficulties that confront us when we try to define the EU and imagine its possible developments and transformations. It emphasizes one of the paradoxes of the European project: it is unable to develop without constitutionalizing the European legal framework but also unable to find the appropriate manner in which to do so, or gain the support of the European peoples. These difficulties are caused by a variety of historical, conceptual and legal factors, which the present volume attempts to identify and discuss.
Europeanization of Constitutional Standards of Freedom of Association Restrictions (Tanasije Marinkovic)
Contemporary development of human rights law is marked by two mutually stimulating and ever growing trends. One is the interplay between the international and national legal systems leading to the internationalization of constitutionally entrenched fundamental rights and constitutionalization of international human rights law. The other trend is the judicialization of human rights law both on the international and national scale, as manifested by the existence of the international human rights courts and by the expansion of constitutional courts’ jurisdiction in the field of fundamental rights protection. The end result of these processes has been the general emboldening of the courts as decision-makers, on both levels, and the emergence of a judge-made human rights law. These trends have been particularly prominent under the jurisdiction of the European Court of Human Rights (ECtHR), where, through a vertical and horizontal cooperation between the Strasbourg court on the one side, and the national supreme/constitutional courts, on the other, European human rights law is being developed.
This paper discusses the creation of the ECtHR case-law on the freedom of association restrictions demonstrating not only how the European human rights law is judge-made and legitimized, but also how far-reaching these changes are substantially, i.e. how much they challenge the long standing constitutional concepts. The case of the praetorian refinement of the conditions for the dissolution of political organizations is all the more pertinent, in terms of the aforementioned structural processes, when taking into account that the ECtHR has considered that...
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