The constitutional principle of friendliness towards international law cannot fully avoid competition between the protection of fundamental rights under the Basic Law and the protection of human rights under the European Convention on Human Rights (ECHR). The primary reason for this is that there is no conflict rule that is able to resolve the rivalry potential between the Federal Constitutional Court (FCC) and the European Court of Human Rights (ECtHR). While the domestic requirement that the Basic Law takes precedence over the Convention is irrelevant under international law, the ECHR’s claim to be respected does not directly affect domestic law. This is a consequence of the moderate dualism of the Basic Law. The constitutional principle of friendliness towards international law does mitigate, but not eliminate, the potential for conflict between the domestic and the European human rights levels.
Manageable solutions to avoid hardened lines of confrontation are therefore to be sought with the help of a functional and legal-sociological perspective. In this respect, it is crucial that the ECHR, in contrast to the Basic Law, does not establish its own sovereignty, but is exclusively called upon to limit the sovereignty of its contracting States for the benefit of the individuals concerned. The added value of an external human rights control compared to a national control of fundamental rights lies in its neutrality in terms of legal culture. However, insofar as it carefully deals with the precedents of the ECtHR, the FCC can retain its own leeway and influence the process of interpreting the Convention. Understood in this way, the principle of friendliness towards international law can contribute to the development of a common European legal culture.
