Can Strasbourg be Replicated at a Global Level? A View from Geneva

Abstract

How can one explain the fact that a relatively weak human rights monitoring body, the Human Rights Committee (HRCttee) is adopting, at times, bolder legal interpretations of international human rights law than the European Court of Human Rights (ECtHR) – the consummate international human rights court? And how can the Committee’s traditional aversion to the margin of appreciation doctrine be reconciled with the fact that it oversees a far more diverse group of states than the ECtHR? And finally, how does one explain the decision by a country to revise its laws following the issuance of the views of the HRCttee, despite the acceptance of the same laws by the ECtHR?

This Chapter seeks to provide some answers to these questions through allusion to the different historical and geopolitical context for the establishment and operation of the ECtHR and the HRCttee. In a nutshell, it argues that the ECtHR forms part of a European agenda of regional integration and democratization, which has no direct parallel at the global level, and that the said agenda influences the legal tools the Court applies and its self-role perception. At the same time, the HRCttee, like other UN treaty bodies, derive their legitimacy from other sources – especially from the notion of universality of international human rights – a notion with powerful symbolic value, which exerts on some states considerable compliance pull.

Keywords: human rights, european court of human rights, human rights committee, margin of appreication, compliance, regional integration, democracy, freedom of religion, abortion

JEL Classification: [k-30, k-33, k-41]