Published online by Cambridge University Press: 07 March 2019
The purpose of the present article is threefold. First, my ambition is to improve the analytical framework that is used to assess the legitimacy of the European Court of Human Rights. The Court’s authority can neither be established nor refuted by a single master-argument. Instead, what we need is a careful balancing exercise and this piece aims to set out the main elements of the justificatory equation. Second, using this framework, I intend to put forward the outline of a coherent critique of the European human rights regime. Third, I hope that my article is able to shed light on why it is natural to expect more vocal criticism from the United Kingdom than from most other member states of the Council of Europe.
2 Izmir Declaration, para 15, adopted at the High Level Conference on the Future of the European Court of Human Rights, Izmir (2011).
3 Brighton Declaration, section G, adopted at the High Level Conference on the Future of the European Court of Human Rights, Brighton (2012).
4 See also The Brussels Declaration, adopted at the High-level Conference on the ‘Implementation of the European Convention on Human Rights, Our Shared Responsibility’, Brussels (2015) and the Copenhagen Declaration, adopted at High-Level Conference on Reform of the Convention System, Copenhagen (2018). The individual justice versus constitutional justice debate does not tackle the issue of legitimacy head on. This debate is extensively discussed in Greer, S and Wildhaber, L, ‘Revisiting the Debate about “constitutionalising” the European Court of Human Rights’ (2012) 12 Human Rights Law Review 655.Google Scholar Additionally, the question of how international courts can be more effective is different from the one of why we need them. See Helfer, LR and Slaughter, AM, ‘Toward a Theory of Effective Supranational Adjudication’ (1997) 107 Yale Law Journal 273.Google Scholar Nevertheless some commentators argue for reopening the debate on legitimacy. For such an example, see Christoffersen, J, ‘Individual and Constitutional Justice: Can the Power Balance of Adjudication Be Reversed?’ in Christoffersen, J and Madsen, MR (eds), The European Court of Human Rights between Law and Politics (Oxford University Press, Oxford 2011) 181.CrossRefGoogle Scholar ‘It is now time to look beyond the horizon and reconsider the power balance between national and international authorities.’ Ibid 181.
5 Spano, R, ‘Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity’ (2014) 14 Human Rights Law Review 487.Google Scholar This criticism culminated in the Draft Brighton Declaration that was leaked by the Guardian on 28 February 2012. According to this draft, the Court should override a state’s interpretation only if the ‘national court clearly erred in its interpretation or application of the Convention rights’.
6 O’Boyle, M, ‘The Future of the European Court of Human Rights’ (2011) 12 German Law Journal 1862, 1867.Google Scholar
7 Spano (n 5) 488.
8 Gearty, C, On Fantasy Island: Britain, Europe, and Human Rights (Oxford University Press, Oxford, 2016).Google Scholar Tom Zwart makes the general point that ‘the only way in which Court insiders can explain the criticism is to frame it in terms of the ignorance and narrow-mindedness of those who express it’. Zwart, T, ‘More Human Rights than Court: Why the Legitimacy of the European Court of Human Rights Is in Need of Repair and How It Can Be Done’ in Flogaitis, S, Zwart, T and Fraser, J (eds), The European Court of Human Rights and Its Discontents: Turning Criticism into Strength (Edward Elgar, London, 2013) 77.Google Scholar
9 I have elaborated a conceptual framework for assessing the justification of domestic constitutional review in Gyorfi, T, Against the New Constitutionalism (Edward Elgar, Cheltenham, 2016).CrossRefGoogle Scholar The present article is, to some extent, the extension of this conceptual framework to international human rights adjudication.
10 Andreas Follesdal’s balancing approach is perhaps the closest to my position. See Follesdal, A, ‘Subsidiarity and International Human-Rights Courts: Respecting Self-Governance and Protecting Human Rights—Or Neither?’ (2016) 79 Law & Contemporary Problems 147.Google Scholar However, by balancing similar considerations, we end up with very different conclusions. See also Follesdal, A, ‘The Legitimacy of International Human Rights Review: The Case of the European Court of Human Rights’ (2009) 40 Journal of Social Philosophy 595;CrossRefGoogle Scholar Follesdal, A, ‘The Legitimacy Deficits of the Human Rights Judiciary: Elements and Implications of a Normative Theory’ (2013) 14 Theoretical Inquiries in Law 339.Google Scholar
11 As to the empirical or de facto legitimacy of international courts, see Helfer, LR and Alter, KJ, ‘Legitimacy and Lawmaking: A Tale of Three International Courts’ (2013) 14 Theoretical Inquiries in Law 479.Google Scholar
12 Goodman, R and Jinks, D, ‘How to Influence States: Socialization and International Human Rights Law’ (2004) 54 Duke Law Journal 621, 622.Google Scholar
13 G Letsas, ‘In Defense of the European Court of Human Rights’ available at: <http://www.heritagescience.ac.uk/human-rights/news/documents/prisoners-vote.pdf>.
14 This does not imply the claim that there is no European public sphere or that some elements of a European-wide political community do not exist.
16 I borrow the term from Moravcsik, A, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’ (2000) 54 International Organization 217, 227.Google Scholar
17 Madsen, MR, ‘The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash’ (2016) 79 Law & Contemporary Problems 141, 145.Google Scholar
18 Ibid 151.
19 Ibid 166.
21 But see, for instance, art 94 of the Dutch Constitution that declares that treaty provisions override conflicting national statutes.
22 Krisch, N, ‘The Open Architecture of European Human Rights Law’ (2008) 71 The Modern Law Review 183, 184.Google Scholar
23 Bjorge, E, Domestic Application of the ECHR: Courts as Faithful Trustees (Oxford University Press, Oxford, 2015);CrossRefGoogle Scholar Gerards, J and Fleuren, J (eds), Implementation of the European Convention on Human Rights and of the Judgments of the ECtHR in National Case-Law: A Comparative Analysis (Intersentia, Cambridge, 2014).Google Scholar
24 Art 149(1) of the Austrian constitution refers back to the general rights of nationals enshrined in the Basic Law of 21 December 1867.
25 Constitution of Spain, art 10(2); Constitution of Portugal, art 16(2).
26 As the Görgülü decision of the German Constitutional Court (FCC) states, ‘the guarantees of the Convention influence the interpretation of the fundamental rights and constitutional principles of the Basic Law. The text of the Convention and the case-law of the European Court of Human Rights serve, on the level of constitutional law, as guides to interpretation in determining the content and scope of fundamental rights and constitutional principles of the Basic Law, provided that this does not lead to a restriction or reduction of protection of the individual’s fundamental rights under the Basic Law – and this the Convention itself does not desire.’ 111 BVerfGE 307, 317. In a later decision, the FCC seems to give even stronger status to the jurisprudence of the Strasbourg court. 128 BVerfGE, 326, 370-371.
28 R v Horncastle  UKSC 14,  2 AC 373, para 11; Manchester City Council v Pinnock  UKSC 45,  2 AC 104, para 48.
30 See, for instance, 120 BVerfGE, 180 (Caroline III) or R (on the Application of Chester) v Secretary of State for Justice  UKSC 63,  AC 271.
31 Secretary of the State for the Home Department v AF (No3)  UKHL 28,  2 AC 269, para 98.
32 Dworkin, R, Freedom’s Law: The Moral Reading of the American Constitution (Harvard University Press, Cambridge, MA, 1996) 1–38.Google Scholar
33 Hoffmann, Lord, ‘The Universality of Human Rights’ (2009) 125 Law Quarterly Review 416, 422.Google Scholar
34 Sadurski, W, ‘Rights and Moral Reasoning: An Unstated Assumption—A Comment on Jeremy Waldron’s “Judges as Moral Reasoners”’ (2009) 7 International Journal of Constitutional Law 25, 27.Google Scholar
35 Pretty v the United Kingdom, App No 2346/02, Merits (29 April 2002) para 67.
36 Gaus, GF, Contemporary Theories of Liberalism: Public Reason as a Post-Enlightenment Project (Sage, London, 2003) 3.Google Scholar
37 The distinction between the Enlightenment View of Reason and Reasonable Pluralism is, therefore, fundamentally different from the distinction between universalism and relativism. For an overview of the universalism versus relativism debate in the context of human rights, see Donoho, DL, ‘Autonomy, Self-Governance, and the Margin of Appreciation: Developing a Jurisprudence of Diversity within Universal Human Rights’ (2001) 15 Emory International Law Review 391.Google Scholar For reasons explained below, it is simply wrong to argue that the margin of appreciation doctrine assumes moral relativism. For such an argument, see Benvenisti, E, ‘Margin of Appreciation, Consensus, and Universal Standards’ (1998) 31 New York University Journal of International Law and Politics 843, 844.Google Scholar
38 Rawls, J, Political Liberalism (Columbia University Press, New York, NY, 1993) 54–8.Google Scholar
39 Gaus (n 36) 14.
40 However, a belief that is justifiable in A’s belief system is not neccessarily the one that is presently held by A.
41 Helfer and Slaughter (n 4) 368. For a similar position, see Benvenisti (n 37) 843.
42 Rawls (n 38) 144.
43 For a detailed justification of this requirement, see Gaus, GF, Justificatory Liberalism: An Essay on Epistemology and Political Theory (Oxford University Press, Oxford, 1996) 215–45.Google Scholar
45 The UK Supreme Court (and its predecessor, the House of Lords) has also been referring to foreign law extensively. See Gyorfi, T, ‘The Supreme Court (House of Lords) of the United Kingdom’ in Jakab, A, Dyevre, A and Itzcovich, G (eds), Comparative Constitutional Reasoning (Cambridge University Press, Cambridge, 2017) 679–722.CrossRefGoogle Scholar Richard Clayton makes the interesting point that since the HRA came into force, the highest court of the UK pays less attention to Commonwealth jurisdictions. Clayton, R, ‘Should the English Courts under the HRA Mirror the Strasbourg Case Law?’ in Ziegler, KS, Wicks, E and Hodson, L (eds), The UK and European Human Rights: A Strained Relationship? (Hart Publishing, Oxford, 2015) 107–8.Google Scholar If that is true, UK judges have not become more cosmopolitan, but have simply reoriented their comparative approach.
46 Spano (n 5) 492.
47 For a summary of this new approach, see Gerards and Fleuren (n 23) 52–71.
48 Copenhagen Declaration, adopted at High-Level Conference on Reform of the Convention System, Copenhagen (2018) 28(c).
49 Spano (n 5).
50 P Mahoney, ‘The Relationship between the Strasbourg Court and the National Courts – As Seen from Strasbourg’ in Ziegler, Wicks and Hodson (n 45) 25.
51 J Gerards, ‘The European Court of Human Rights’ in Jakab, Dyevre and Itzcovich (n 45).
52 Wildhaber, L, ‘Rethinking the European Court of Human Rights’ in Christoffersen, J and Madsen, MR (eds), The European Court of Human Rights between Law and Politics (Oxford University Press, Oxford, 2011) 210.Google Scholar
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54 A Kavanagh, ‘What’s So Weak about “Weak-Form Review”? The Case of the UK Human Rights Act 1998’ (2015) 13 International Journal of Constitutional Law 1008, 1024.
55 Hickman, T, Public Law after the Human Rights Act (Hart Publishing, Oxford, 2010) 2.Google Scholar
56 J Rackow, ‘From Conflict to Cooperation: The Relationship between Karlsruhe and Strasbourg’ in Ziegler, Wicks and Hodson (n 45) 387.
57 I am aware that this is not the conventional meaning of authentic interpretation.
58 The three qualifications I made about the primacy of the Strasbourg court above also apply to this claim.
59 Kavanagh (n 54) 1024.
61 However, some commentators jump from the need to protect minority rights directly to the legitimacy of ECtHR without even trying to establish that domestic courts are unable to fulfil this function. See Benvenisti (n 37) 848–50.
62 Hedigan, J, ‘The European Court of Human Rights: Yesterday, Today and Tomorrow’ (2011) 12 German Law Journal 1716, 1716.Google Scholar
66 C Hillebrecht, ‘The Power of Human Rights Tribunals: Compliance with the European Court of Human Rights and Domestic Policy Change’ (2014) 20 European Journal of International Relations 1100, 1114.
67 Madsen (n 17) 169–70. It is worth mentioning that some of the Russian criticisms come from the Constitutional Court of Russia. See A Burkov: ‘How to Improve the Results of a Reluctant Player: The Case of Russia and the European Convention on Human Rights’ in Flogaitis et al. (n 8)
68 ‘Britain Could Become Belarus If It Abandons Human Rights Legislation, Warns Attorney General’ The Telegraph (9 October 2012).
69 Moravcsik (n 16).
70 Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge University Press, Cambridge, 2003) 25.
71 However, their attitude to compliance is fundamentally different. For a comparison between Russia and the UK, see Hillebrecht, C, ‘Implementing International Human Rights Law at Home: Domestic Politics and the European Court of Human Rights’ (2012) 13 Human Rights Review 279.CrossRefGoogle Scholar
72 Moravcsik (n 16) 229.
73 Downs, GW and Jones, MA, ‘Reputation, Compliance, and International Law’ (2002) 31 Journal of Legal Studies 95;CrossRefGoogle Scholar Guzman, AT, ‘A Compliance-Based Theory of International Law’ (2002) 90 California Law Review 1823;CrossRefGoogle Scholar Guzman, AT, ‘Reputation and International Law Symposium: The Limits of International Law’ (2005) 34 Georgia Journal of International and Comparative Law 379;Google Scholar Guzman, AT, How International Law Works: A Rational Choice Theory (2010);Google Scholar Helfer and Slaughter (n 4); Keohane, RO, ‘International Relations and International Law: Two Optics’ (1997) 38 Harvard International Law Journal 487.Google Scholar
75 Available at <www.reputationinstitute.com/research/Country-RepTrak.aspx>. (Iceland is second on the EIU’s ranking, but it is not monitored by the Reputation Institute.)
77 Ibid 25–32.
78 ibid 26–32.
79 DiMaggio, PJ and Powell, WW, ‘The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields’ (1983) 48 American Sociological Review 147.Google Scholar
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81 However, it has to be mentioned that material inducement was also an important motivating factor for many countries since ratifying the ECHR was a precondition of EU membership.
82 Guzman, How International Law Works: A Rational Choice Theory (n 73) 91.
83 E Voeten, ‘Politics, Judicial Behaviour, and Institutional Design’ in Christoffersen and Madsen (n 4) 67–9.
84 Ibid 73.
85 For recent surveys on the history of Russian identity, see Duncan, PJS, ‘Contemporary Russian Identity between East and West’ (2005) 48 The Historical Journal 277;CrossRefGoogle Scholar Likhacheva, A, Makarov, I and Makarova, E, ‘Post-Soviet Russian Identity and Its Influence on European-Russian Relations’ (2015) 3 European Journal of Futures Research 4;CrossRefGoogle Scholar Riasanovsky, NV, Russian Identities : A Historical Survey (Oxford University Press, Oxford, 2005).Google Scholar
86 ‘Prime Minister Viktor Orbán’s Speech at the 25th Bálványos Summer Free University and Student Camp’. Available at <www.kormany.hu/en/the-prime-minister/the-prime-minister-s-speeches/prime-minister-viktor-orban-s-speech-at-the-25th-balvanyos-summer-free-university-and-student-camp>.
88 Responding to the critiques of the recent attack on the judiciary, Poland’s Justice Minister, Zbigniew Ziobro’s reply is replete with references to respect (‘We expect and demand respect’, for example). ‘EU-Poland Row Gets Personal as War of Words Heats up’ Euronews (27 July 2017). Available at <www.euronews.com/2017/07/27/eu-poland-row-gets-personal-as-war-of-words-heats-up>
89 As of writing this article, Hungarian streets are full of posters declaring that ‘Hungary is a proud and strong European nation’.
91 ‘Orbán Defiant as EU Parliament Considers Sanctions on Hungary’ Guardian (11 September 2018).
92 Bryant, C, Parliament: The Biography (Volume I: Ancestral Voices) (Transworld, London, 2015) 16–17.Google Scholar
93 Lord Hoffmann (n 33) 417.
94 Luebbe-Wolff (n 20) 97–8. Of course, Brexit puts the above argument in a new and very different international context. However, at present, it would be premature to speculate on the potential effects of Brexit on the protection of human rights in the UK.
96 Luebbe-Wolff (n 20) 98.
97 O’Boyle (n 6) 1867.
98 Spano (n 5) 493.
99 Moravcsik (n 16) 237.
100 I am grateful to one of the anonymous reviewers for drawing my attention to this point.
101 In addition, the proponents of the ECtHR should also establish that we need a court to influence the behaviour of member states and ‘less drastic means’ are not available.
102 Goodman and Jinks (n 12) 629.
103 Madsen (n 17) 173.
104 Alter, KJ, Helfer, LR and Madsen, MR, ‘How Context Shapes the Authority of International Courts’ (2016) 79 Law and Contemporary Problems 1, 10.Google Scholar
105 Greer and Wildhaber (n 4) 665; Hillebrecht (n 71) 283–4.