5 - Supranational Lawmaking

Summary

Although any act of (international) judicial interpretation can be conceived of as lawmaking, judicial lawmaking under the Convention system is particularly extensive both in quality and quantity. Today, the text of the ECHR and its Protocols is merely the basis of a much larger notion of Convention law. This chapter discusses lawmaking understood as the general effect of Strasbourg case-law beyond the individual case. It analyzes the Court’s extensive lawmaking function from a Convention perspective and argues that ECHR lawmaking is uniquely supranational and integrative. The ECtHR resorts to a majoritarian approach to set a human rights standard, which may be (re-)imposed on states by virtue of the Court’s interpretative authority and states’ primary duty to secure Convention rights. The possibility of third-party interventions can be viewed as both an expression and justification of the Court’s lawmaking power and interpretative authority.