Mid-Term Report Summary - MULTIRIGHTS (The Legitimacy of Multi-level Human Rights Judiciary)
The activities during the first academic year address general issues concerning the legitimacy of the international human rights judiciary, and four models for its future more legitimate development. During the second academic year the focus has been placed on human rights brought to bear on the four models. The third academic year focuses on the rule of law.
As regard the diagnoses of ‘legitimacy deficits’, one general finding is that several of the concerns voiced by media and scholars are caused not so much by the nature of the human rights bodies themselves as by the complex multi-level relationships among and between the human rights bodies and the states ultimately responsible for respecting human rights. At least three central challenges for the European Court of Human Rights (ECtHR) are likely to confront other human rights treaty organs also: a) how to ‘filter’ incoming applications to avoid spending resources on unfounded appeals while providing swift, just and reasoned protection to claimants whose human rights have been violated; b) how the Court can best interact with states that have very different traditions and records as regard commitments to the rule of law, a functioning independent judiciary and a democratic culture; c) how the Court can interpret the treaty ‘dynamically’ so that it continues to protect human rights in changing circumstances - without abusing its independence and discretion to create a ‘rule of lawyers’ rather than the ‘rule of law’ (Schlütter 2012b, Ulfstein and Follesdal 2014).
How well will some of the four models for future development address these legitimacy deficits? Primacy of National Courts - through formal means – a more federal approach, and strengthened local remedies. A main problem remains for those states whose domestic organs fail to protect human rights; a central question is then how regional and international organs can bolster the domestic rule of law and domestic efforts at respecting human rights.
Powerful National Courts - through informal means. These include the ECtHR’s practice of granting a ‘margin of appreciation’ in line with a principle of ‘subsidiarity’ , especially where domestic authorities have undertaken good faith efforts to respect and balance their human rights obligations. A central task is to render this practice and the principle of subsidiarity more precise. Another strand is to determine how national courts can affect the ECtHR’s interpretation through ‘judicial dialogues’ of various kinds (Schlütter 2012a).
Powerful International Courts - through informal means. The ECtHR has taken on what may be seen as a constitutional role, interpreting the ECHR dynamically, using an invasive ‘proportionality test’, and by issuing ‘pilot judgments.’ These developments may bolster human rights protection, but raise the risk of an unaccountable, unchecked international court. Such fears may be overdrawn, given that the regional and international human rights courts largely rely on domestic organs to implement their decisions. MultiRights will address these means in the years to come, in part to render the ‘proportionality test’ more precise, by considering ‘informal’ checks such as precedent (Ajevski 2013), and by addressing the apparent dilemmas between international human rights courts and democratic ideals.
Strengthening international judiciary organs by formal rules, e.g. toward a World Court of Human Rights. Such developments include proposals to harmonize hitherto fragmented parts of international law, and to establish a common code of procedure of human rights organs. One finding in the literature is that the fears of conflicts among treaty organs may be overdrawn, thus the proposed solution may be addressing non-existent problems. Still, several proposals will be considered as attempts to increase predictability and simplicity among an ever more complex set of regional and international courts and treaty bodies.
As regard the diagnoses of ‘legitimacy deficits’, one general finding is that several of the concerns voiced by media and scholars are caused not so much by the nature of the human rights bodies themselves as by the complex multi-level relationships among and between the human rights bodies and the states ultimately responsible for respecting human rights. At least three central challenges for the European Court of Human Rights (ECtHR) are likely to confront other human rights treaty organs also: a) how to ‘filter’ incoming applications to avoid spending resources on unfounded appeals while providing swift, just and reasoned protection to claimants whose human rights have been violated; b) how the Court can best interact with states that have very different traditions and records as regard commitments to the rule of law, a functioning independent judiciary and a democratic culture; c) how the Court can interpret the treaty ‘dynamically’ so that it continues to protect human rights in changing circumstances - without abusing its independence and discretion to create a ‘rule of lawyers’ rather than the ‘rule of law’ (Schlütter 2012b, Ulfstein and Follesdal 2014).
How well will some of the four models for future development address these legitimacy deficits? Primacy of National Courts - through formal means – a more federal approach, and strengthened local remedies. A main problem remains for those states whose domestic organs fail to protect human rights; a central question is then how regional and international organs can bolster the domestic rule of law and domestic efforts at respecting human rights.
Powerful National Courts - through informal means. These include the ECtHR’s practice of granting a ‘margin of appreciation’ in line with a principle of ‘subsidiarity’ , especially where domestic authorities have undertaken good faith efforts to respect and balance their human rights obligations. A central task is to render this practice and the principle of subsidiarity more precise. Another strand is to determine how national courts can affect the ECtHR’s interpretation through ‘judicial dialogues’ of various kinds (Schlütter 2012a).
Powerful International Courts - through informal means. The ECtHR has taken on what may be seen as a constitutional role, interpreting the ECHR dynamically, using an invasive ‘proportionality test’, and by issuing ‘pilot judgments.’ These developments may bolster human rights protection, but raise the risk of an unaccountable, unchecked international court. Such fears may be overdrawn, given that the regional and international human rights courts largely rely on domestic organs to implement their decisions. MultiRights will address these means in the years to come, in part to render the ‘proportionality test’ more precise, by considering ‘informal’ checks such as precedent (Ajevski 2013), and by addressing the apparent dilemmas between international human rights courts and democratic ideals.
Strengthening international judiciary organs by formal rules, e.g. toward a World Court of Human Rights. Such developments include proposals to harmonize hitherto fragmented parts of international law, and to establish a common code of procedure of human rights organs. One finding in the literature is that the fears of conflicts among treaty organs may be overdrawn, thus the proposed solution may be addressing non-existent problems. Still, several proposals will be considered as attempts to increase predictability and simplicity among an ever more complex set of regional and international courts and treaty bodies.