This chapter develops the book’s conceptual and terminological basis. It proposes to re-discover supranationality as a relative and general concept which can serve as a valuable descriptive-analytical tool for the study of international regimes and law beyond the state. Supranationality is defined by adopting a functional perspective: The chapter argues that elements usually denoted supranational seek a form of legal integration, either horizontally, through international institutions bypassing states in their ability to determine the legal position of individuals, or vertically, in that law beyond the state is entrenched in the domestic legal order in a way that allows individuals to rely on it directly. As a thin conceptual theory renouncing any broader normative vision, the proposed framework may complement and inform more fully-fledged theories such as legal pluralism, global constitutionalism or federalism. The chapter also explores the nexus between the notions of supranationality and community. Drawing on constructivist insights, it demonstrates that the constitution of a (legal) community in the sense of an intersubjective sense of belonging can be regarded both the (social) precondition and product of legal integration.

The introduction lays out the book’s aim as providing an investigation into the emancipation of the ECHR from an international agreement with a relatively weak enforcement structure into a sophisticated legal system. The introduction argues that researching supranationality under the Convention offers a fresh descriptive-analytical perspective on the ECHR as well as a deconstruction of the ECtHR’s authority. Carrying forward legal-institutional scholarship and studies on the domestification of the ECHR, it also introduces the idea of reviving the notion of Convention community. Lastly, the introduction provides an overview of the book’s structure and presents the line of argument and the methodology adopted in the different chapters.

This chapter explores the origins and evolution of supranationality. It contrasts different conceptualizations across various (legal) disciplines by singling out four important contexts which have informed the notion: the turn to modern international law, the establishment of the European Communities, EU law scholarship and the law of IOs. The chapter demonstrates how supranationality is construed through both international law and EU law, which is one of the very reasons its meaning is difficult to pin down. Supranationality, as a doctrinal concept, appears to be trapped by the unresolved quandary of whether EU law is still to be conceived of as being part of international law.

This chapter examines the ECtHR’s supranational authority in detail analyzing the Court’s classical function of providing judicial review, its remedial practice as well as the new advisory jurisdiction as introduced by Protocol 16. Acknowledging that the ECHR system cannot be connected to a larger autonomous political unit, the claim is put forward is that the ECtHR nonetheless provides for a complementary layer of public authority which directly operates on individuals alongside that of domestic legal systems. The ECtHR enjoys a broad measure of autonomy over states and may circumvent the state veil by placing individuals under international protection or responsibilizing domestic authorities. The direct interaction with domestic actors not only represents part of the Court’s supranational authority but informs, at the same time, its legitimacy as the Convention community feeds on domestic actors, individuals especially, directly submitting their arguments to the Court.

The conclusion summarizes the supranational aspects of the ECHR and reflects on the wider narrative of supranationalization of the ECHR, including its driving factors and countertrends. It further demonstrates that growing resistance towards the ECtHR, as far as it goes beyond system inherent criticism, may partly be the result of increased openness and integration in the first place and could in fact lead to a refinement of Convention law. The ECHR’s supranational aspects also lend themselves to a communitarian perspective. The conclusion therefore argues that the findings of the study allow to give meaning to the notion of Convention community which is characterized by Convention rights as community interest norms, for the protection of which the ECtHR enjoys an inalienable core of autonomy, membership of domestic authorities and natural and legal persons as well as subsidiarity and moderated supremacy of Convention law as ordering principles.

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.

This chapter provides an introduction to investigating supranational aspects of the ECHR. It examines how the ECtHR gradually transformed from an international into a supranational court. A legal-historical perspective is adopted to analyze the (institutional) developments and reforms of the Convention system and re-visit some of the well-known classics of (early) Strasbourg case-law. While tracing the transformation from international to supranational adjudication overlaps with and confirms existing narratives of incremental de-politization, judicialization and individualization of the ECHR system, this chapter connects existing accounts on the institutional evolution of the Convention system to an overall narrative and a broader conceptual framework. It submits that, although supranational adjudication is primarily the result of Protocol 11 and thus rests on a formal choice and commitment of contracting states, the special nature of the Convention as a human rights treaty exercised a particular pull towards supranational adjudication. As a result, the Court and the Commission early on distinguished the collective protection system under the Convention from interstate and state-controlled adjudication by conceiving of themselves as adjudicators of a community.

This chapter tests the assumption that by virtue of the strong supranational adjudication and lawmaking by the Court, the ECHR could be considered supranational law in terms of its effect in domestic legal systems. The hypothesis of vertical integration is verified by adopting a two-fold approach analyzing both the perspective of the Court and the point of view of national legal orders. The first part of the chapter challenges the notion of implementation freedom. Taking a closer look at the Convention level reveals how the ECtHR developed a subtle yet sophisticated framework requiring domestic integration of the Convention’s substance and national courts to uphold and protect ECHR rights. The second part of the chapter looks at how domestic legal orders have received Convention law. Surveying existing studies demonstrates that Convention law may be considered de-facto supranational law, because it is, by and large, directly invocable by individuals vis-à-vis domestic authorities and effectively enforceable within national legal systems. Domestic resistance against the ECtHR, in its current form, must not necessarily be understood as an antithesis to integration, but can equally be regarded epiphenomenal.