Why International Human Rights Judicial Review Might Be Democratically Legitimate

Scandinavian Studies in Law, Vol. 52, pp. 371-382, 2007

19 Pages Posted: 8 Nov 2010

Date Written: 2007

Abstract

International human rights courts face a dire choice. On the one hand, if ineffective or inefficient, international judicial review of human rights is dismissed as insignificant. On the other hand, if effective, critics charge that international judicial human rights review is objectionably undemocratic and hence illegitimate. If the latter critics are correct, we should reject attempts at reform such as Lord Woolf has proposed for the European Court of Human Rights (Woolf 2005), since they would strengthen international review and enhance the legitimacy deficit. Likewise, such critics would dismiss Anne Marie Slaughter’s (Slaughter 2004) optimism outright, about the potential benefits of international networks of courts. Why should we cherish the prospect of democratically unaccountable supranational entities endowed with coercive power against domestic democratically accountable institutions? (Anderson 2005, 1282). Some of these principled worries about the illegitimacy of judicial review in general do not withstand scrutiny, or so I shall argue in the following. Thus courts such as the European Court of Human Rights (ECtHR) that impose human rights constraints on legislatures need not be problematically undemocratic.

Keywords: human rights, democracy, judicial review, European Court of Human Rights, Waldron

Suggested Citation

Follesdal, Andreas, Why International Human Rights Judicial Review Might Be Democratically Legitimate (2007). Scandinavian Studies in Law, Vol. 52, pp. 371-382, 2007. Available at SSRN: https://ssrn.com/abstract=1704467

Andreas Follesdal (Contact Author)

Pluricourts ( email )

P.O. Box 6706
St. Olavs plass 5
0130 Oslo
Norway

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