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Proportionality Balancing and Constitutional GovernanceA Comparative and Global Approach$
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Alec Stone Sweet and Jud Mathews

Print publication date: 2019

Print ISBN-13: 9780198841395

Published to Oxford Scholarship Online: July 2019

DOI: 10.1093/oso/9780198841395.001.0001

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Global Constitutionalism and Transnational Governance

Global Constitutionalism and Transnational Governance

(p.162) 6 Global Constitutionalism and Transnational Governance
Proportionality Balancing and Constitutional Governance

Alec Stone Sweet

Jud Mathews

Oxford University Press

This chapter focuses on the evolution of treaty-based human rights regimes in Europe, the Americas, and Africa. Each of the five courts under consideration insists on its own primacy with respect to the interpretation of charter rights; each considers such interpretations to be binding on all domestic judges; and each holds, or strongly implies, that states are under a duty to incorporate the regional charter as directly enforceable, domestic law with a rank at least above statute. Today, the European and the Inter-American courts take pains to portray their role and function in constitutional terms, a posture the three African regional courts appear to be following. All have adopted proportionality, which the European and Inter-American courts, in particular, have prioritized as an instrument of transnational governance. National trustee courts can and do resist transnational courts; but an increasing number have also held that international human rights—and respect for the jurisprudence of the regional court—are an integral part of their own domestic systems of justice. Today, domestic and treaty-based charters overlap, reflect, and reinforce one another. As important, trustee courts, at both levels, intensively interact with one another on the basis of shared commitment to building the effectiveness of rights protection through the enforcement of the proportionality principle. These facts support the view that, over the past three decades, a global, multi-level, and pluralistic constitutional system has emerged.

Keywords:   European Convention on Human Rights, Inter-American Convention on Human Rights, African Union Charter of Human and People’s Rights, East African Community, Economic Community of West African States, constitutional pluralism, human rights treaties, margin of appreciation, consensus analysis

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