Law Making by Law Breaking? A Theory of Parliamentary Civil Disobedience Against International Human Rights Courts

Abstract

Recent cases of non-compliance with judgments of the European Court of Human Rights (ECtHR) raise several profound questions of legitimacy. Some states seem simply unwilling to defer to the ECtHR, putting their own legitimacy on the line. Other cases, such as the Hirst v. UK case of prisoners' voting rights, seem to challenge the legitimacy of the Court or aspects of its practices. May some such non-compliance with international courts in fact be justifiable? The present chapter argues that some forms of parliamentary disobedience may be understood and assessed not only as protest and avoidance, but also as a constructive mode of correcting the law making of the ECtHR. Under some conditions, certain forms of domestic parliamentary disobedience should be considered as and accepted as an extreme form of multi-level law making. Few states can be expected to pressure human rights ICs to interpret the treaties expansively. Thus states might not be suitable actors in a system of checks to ensure that ICs interpret in appropriate ways. Yet checks and balances should be developed in our multi-level legal order to alleviate the risks wrought by ICs’ interpretation and law making.

Keywords: international courts, legitimacy, civil disobedience