Total Constitutionalism and the Interrelated Constitutionalisation of the European Court of Human Rights through Liberal NGO-driven Litigation and Advocacy

Abstract

Our article studies the main features of a constitutionalism trend reflected in the influence of private interest groups over jurisdictional expansion and interpretative advances operated by the European Court of Human Rights. We posit that liberal interests’ litigation bears potential to reinforce the trend toward constitutionalism beyond the influence played by internal factors such as the reforms of the court and the evolution of their rules. The existing framework of supranational rights jurisprudence aligns quite well with legal mobilisation and litigation pursued by liberals backed up in their efforts by private foundations whose contribution to the constitutionalisation process has been neglected by the literature. We show in particular how strategic NGO-driven litigation can (re)shape institutional design as well as the filtering and prioritisation of cases, interpretive reasoning, landmark judgments and the execution of judgments. This phenomenon of constitutionalisation, which is fought by conservative NGOs, has been eclipsed by the academic attention given to the technicalities of reform to the neglect of NGOs reshaping the evolution of the Court’s structure and jurisprudence, and the living instrument doctrine. Conversely, the constitutionalisation of the European Court tends to favour NGO-driven litigation, as the development of European human rights law increasingly depends in part on the impetus provided by liberal NGOs.