Apart from the treaties which constitute the European Communities and the Union, it is also important to consider the European Conven- tion on Human Rights from a constitutional perspective, especially be- cause the European Charter of Fundamental Rights promulgated for the Union still lacks legally binding force, as has been explained above.
Constitutional terms have already been used by many authors to de- scribe the character of the Convention: it has been named a “comple- mentary constitution”,68 a “part of the ordre public européen”,69 a
“European human rights constitution”70 and a “process of constitution- alization”.71 The European Court of Human Rights itself calls it a “con- stitutional instrument of European public order”.72 And its contents are
67 Cf. F. Balaguer Callejún, Die Europọische Verfassung auf dem Weg zum europọischen Verfassungsrecht, in: P. Họberle, Jahrbuch des ửffentlichen Rechts der Gegenwart 53 (2005), 401, at 407.
68 T. Lọufer, Zur kỹnftigen Verfassung der Europọischen Union – Notwen- digkeit einer offenen Debatte, in: R. Hrbek/M. Jopp/B. Lippert/W. Wessels:
Die Europọische Union als Prozeò, 1998, 564, at 567 speaks of the European system as a complementary constitutional order that integrates the common elements of the constitutions of the member states – a method that the Euro- pean Convention on Human Rights uses as well; cf. I. Pernice, Kompetenzab- grenzung im Europọischen Verfassungsverbund, JZ 2000, 866, at 871.
69 P. Họberle, Gemeineuropọisches Verfassungsrecht, EuGRZ 1991, 261 et seq.
70 Cf. C. Grabenwarter, Europọisches und nationales Verfassungsrecht, VVDStRL 60 (2001), 290, at 327.
71 C. Walter, Die Europọische Menschenrechtskonvention als Konstitutio- nalisierungsprozeò, ZaửRV 1999, 961 et seq.
72 ECHR, 04 March 1991 (Chrysostomos, Papachrysostomou, Loizidou / Turkey), no. 21.
of a constitutional character indeed, albeit limited to the field of basic rights and the rule of law whose provisions, as stated above, perform only one of the most essential constitutional functions;73 it establishes the cornerstones of a democratic state under the rule of law and en- dowed with mechanisms for the protection of minorities according to the best European traditions. Since on the one hand it is lacking the na- tional peculiarities that form part of all domestic constitutional cata- logues of basic rights, while on the other hand it embodies specific common traits of the European constitutional development in general which are not necessarily spelled out in every national constitution, it has been able to set up a Europe-wide minimum standard of human rights guarantees74 that is binding on all its member states like, for in- stance, the basic rights in the German Basic Law are binding on all or- gans of the states which make up the Federal Republic of Germany. In- sofar it very much resembles the corresponding parts of the national constitutions.
It might therefore be most appropriate to speak of the European Con- vention on Human Rights as an “accessory constitution”75 under public international law. For it is and remains a treaty under public interna- tional law but a special one: because it is able to have a direct impact on the constitutional orders of its member states.76 This impact becomes most obvious through the fact that the interpretation of national basic rights guarantees by the courts of the member states is meanwhile heav- ily influenced by the understanding which the European Court of Hu- man Rights gives to corresponding guarantees in the Convention.
Moreover, the provisions of the Convention are at least partially able to set aside or invalidate national laws, and even where this is not a formal consequence of its application, it often prompts national legislatures as well as domestic courts to adjust their legislative and adjudicative mea- sures accordingly. Through all these mechanisms, the constitutional or- ders of all member states have been more or less opened for the applica- tion of the norms of the Convention. In particular, the Convention
73 P. Huber (note 22), 202 et seq.; P.-C. Mỹller-Graff (note 1), 25; M. Mửstl (note 21), 19.
74 C. Grabenwarter (note 70), 327; R. Uerpmann, Vửlkerrechtliche Neben- verfassungen, in: A. von Bogdandy, Europọisches Verfassungsrecht, 2003, 339, at 341.
75 R. Uerpmann (note 74), 341.
76 Cf. C. Grabenwarter (note 70), 317 et seq.;C. Koenig/A. Haratsch (note 2), no. 23.
takes on the task of filling gaps in the national constitutional systems for the protection of basic rights.77 But in order to fulfil this function, it must be treated and interpreted in a manner that comes at least close to the way national constitutions are dealt with. As a consequence, there are no longer any decisive differences as to the quality of its guarantees in comparison with those of the national constitutions.
At the level of the European Union, the Convention moreover allows to largely forego comparative constitutional analyses since, as its pre- amble clearly expresses, it is itself an expression of common constitu- tional traditions of its member states. That brings us to the especially interesting relationship between the Convention and the law of the Union. Art. 6 Par. 2 of the Treaty on European Union which states that the Union shall respect the rights contained in the Convention as “gen- eral principles of Community law”, is perhaps the most important ex- ample of the autonomous incorporation of a public international law instrument into a different legal order.78 However, its precise reach has so far stayed in a legal twilight zone. It obligates the Union to steer a kind of middle course: on the one hand, it clearly establishes that the Union shall consider itself bound to the contents of the Convention, but on the other hand, it keeps the Union free from being subject to any kind of external conditions, including review of its actions by the European Court of Human Rights. The potential tensions between this Court and the European Court of Justice that have already arisen in this regard cannot be discussed in detail here – they might explain, though, why the Court of Justice still hesitates to call the Convention a “consti- tutional instrument”: it rather prefers to talk about its “special rele- vance” for Community law79 in a more neutral fashion.
Nevertheless, in the context of the Union the term “accessory constitu- tion” is probably an even more adequate characterization of the Con- vention than in its connection with the national constitutional systems.
For unlike these systems, the Union, as stated above, does not yet have a written catalogue of basic rights that would enjoy legally binding force although the Constitutional Treaty aimed at changing that situa- tion. For the time being, however, Art. 6 Par. 2 of the Treaty on Euro-
77 C. Grabenwarter (note 70), 344; R. Uerpmann (note 74), 341; R. Streinz (note 3), no. 57d.
78 R. Uerpmann (note 74), 365; cf. C. Grabenwarter (note 70), 325 et seq.
79 ECJ, 17 October 1989 (97-99/87, Dow Chemical Ibérica / Commission), no. 10: “particular relevance”; ECJ, 29 May 1997 (C-299/95, Kremzow / Aus- tria), no. 14: “special significance”.
pean Union and the general principles of law which the Court of Justice has derived from the Convention and the constitutional systems of the member states is all that exists. Under the fundamental assumption of this article that the European Treaties in general perform constitutional functions, the codified basis of the important function to protect the citizens of the Union against encroachments upon their personal liber- ties thus seems to be particularly weak and far less autonomous than those of the other functions. Here the Convention is even more re- quired than elsewhere to fill a gap in the constitutional order of the Union and therefore to perform “accessory” constitutional tasks.80