Much Ado About Nothing? International Judicial Review of Human Rights in Well Functioning Democracies

Abstract

The chapter addresses some of the tensions between sovereignty, international human rights review and legitimacy, and brings these findings to bear on the proposals for reform of the European Court of Human Rights (ECtHR) that would reduce its authority over national legislatures and judiciaries. The objectives of such review are not obvious, the causes of noncompliance are contested, as is the legality of dynamic treaty interpretation; all of which hamper efforts to assess proposed improvements. Section 1 presents some relevant aspects of the ECtHR. Section 2 reviews some of the recent criticism against the ECtHR practice of judicial review to protect human rights in ‘well-functioning’ democracies, in terms of various forms of legitimacy deficits. It also presents some of the recent proposals for reform of the ECtHR. Section 3 lays out some reasons why such judicial review of majoritarian democratic decision-making may be defensible, also for well functioning democracies. Section 4 responds to some of the criticisms, and presents a partial defence. Some standard objections are not well targeted against the practices of the ECtHR, partly due to the division of responsibility between it and national public bodies, and the different roles of legislators and of judiciaries. Section 5 returns to the proposals presented in section 2. Section 6 concludes by considering some of the important remaining normative challenges, this partial defence notwithstanding.