The International Human Rights Judiciary and the Quality of Domestic Parliamentary Process

We currently witness protests from many national parliaments against regional courts and commissions and the UN treaty bodies. Especially within Europe, where the European Court of Human Rights (ECtHR) has jurisdiction, this international human rights judiciary (IHRJ) is said to threaten national democratic processes and 'hollow out' the scope of domestic, democratic decision-making. Against this backlash, it is striking that domestic parliaments have a key role in holding state authorities to their international human rights based obligations. National parliaments interpret, apply and respect human rights in the laws they make, and when holding the executive to account. Parliaments often fail in these tasks, with implications for the individuals whose rights are infringed – and burdening the IHRJ with cases. If progress is to be made, capacity and awareness must increase amongst parliamentarians at the domestic level. Thus argue international parliamentary bodies, such as the Parliamentary Assembly of the Council of Europe (PACE) and the Inter-Parliamentary Union (IPU). The present paper confronts the backlash head on, by insisting that the international human rights judiciary may advance the role of domestic parliaments in the realization of human rights. This paper addresses the potential of the international human rights judiciary (IHRJ) as a promoter of the quality of parliamentary process. It concentrates on two questions: to what extent does the IHRJ have a model of parliamentary process to promote? And, by what modalities might it operate? To answer these questions, the analysis draws on the institutional frameworks, relevant case law and reports from the IHRJ (especially the ECtHR, the CEDAW Committee, and the CRC Committee), along with a surrounding body of literature from multiple disciplines. A key focus of the analysis is on the challenges that might be encountered by the IHRJ, and how they might be overcome. The perspective that informs the analysis reflects an effort to maximize the overall usefulness of the IHRJ’s connections with the processes of national parliaments for the realization of human rights. It is contended that in order to maximize the impact of efforts in this area, there should be a focus on the scope for coordination of the practice of the IHRJ across institutions and modalities. [Please consider for Panel 1: International Courts and Transnational Legal Institutions and Processes]