The European Court of Human Rights faces a potentially fatal case overload crisis. But this is not the only problem confronting the European Convention on Human Rights. The underlying difficulty is the reluctance of the Strasbourg institutions, and others, to acknowledge that the Convention's main function is not to provide remedies for each deserving applicant. It is, rather, to promote convergence in the operation of public institutions at all levels of governance in Europe by articulating an abstract constitutional model which member states should then apply in their own domestic constitutional systems. This article seeks to make the case for "constitutionalization" and to explore the policy implications.The same issue of the Quarterly contains another article on a highly topical issue in the ECHR context: Jill Marshall, Conditions for Freedom?: European Human Rights Law and the Islamic Headscarf Debate. Here is the abstract:
This article investigates women's choices and personal freedom by reference to the European Court of Human Rights' jurisprudence on national laws banning the wearing of the Islamic headscarf by adult women. The article focuses on how ECHR law is used and misused to shape women's autonomy rights, with specific emphasis on how women's rights to develop and express their own individual identities are impacted under this legal regime. The reasoning of the case law is criticized: no evidence was produced that the wearing of the headscarf was anything other than the women's choice; furthermore, preventing them from wearing it restricts their autonomy in a way inconsistent with other jurisprudence of the same court.