Towards An International Human Rights Judiciary?
By Matthew Saul, Postdoctoral Fellow, MultiRights/PluriCourts
Towards An International Human Rights Judiciary?
Matthew Saul, MultiRights
At a recent MultiRights seminar here at the University of Oslo, I was one of the commentators (along with the philosopher, Claudio Corradetti) on a draft paper by Prof. Geir Ulfstein (one of the directors of MultiRights). The paper Geir presented had the title ‘Towards an international human rights judiciary?’, and should be available in a revised form soon(ish). My short set of comments are posted here on the off chance that they might be of interest to others who are engaged in debates about the legitimacy and effectiveness of the international human rights judiciary.
A. The paper in overview
Geir’s paper provided a very useful account of how far progress has been made towards a comprehensive human rights judiciary. Through outlining the current contributions but also the challenges faced by judicial bodies with rights protection roles at the national, regional, and global level, the paper demonstrated that these bodies do not work in vacuums, there are linkages (eg., the ICJ referring to the HRC and indicating that its work should be given great weight). But, in part, because the institutions have grown up in a piecemeal fashion, there are tensions and shortfalls (eg., institutions can approach matters in different ways, sometimes without consistent rationales; consider the difference in approach to the margin of appreciation between HRC and ECtHR; or the scope for national courts to vary in terms of the responsibility they take for progressive interpretation of human rights). The difficulties that exist are also exacerbated by the other challenges that many of the institutions encounter, not least the issue of resources. Ultimately, the paper highlighted that there is some evidence that is consistent with a movement towards a comprehensive human rights judiciary, but that presently the system in place remains somewhat short of comprehensive (although exactly what would constitute a comprehensive human rights judiciary was left to be determined at a future date).
In the rest of these remarks, I pick up on a few of the many important points that the paper raised for me in terms of the potential for movement towards a comprehensive international human rights judiciary: i) the issue of the way the institutional relationships are conceptualised; ii) the scope for the institutions to build the system; iii) the issue of deference to political bodies.
B. Conceptualising the international human rights judiciary
If we proceed on the assumption that how we as scholars depict courts can come to influence how judges think about and approach their functions, this increases the importance of how the relationship between the judicial and quasi-judicial bodies that are the target of the term human rights judiciary is conceptualised.
Geir’s paper makes reference to two of the most prominent ways in which the relationship between the institutions of the human rights judiciary can and has been conceptualised. One of these is the constitutional approach. The connection of the idea of a constitution with the domestic legal system means that it comes with an implication of an ordered system. This implies the allocation of a particular role for each of the bodies within the human rights judiciary. But there is also a connotation of vertical authority (although calls have been made for a detachment of the idea of a constitution from the notion that is associated with the domestic level.). That is, the courts will sit in a relationship of vertical authority (the higher the judicial body, the more authority it would be assumed to have). This is not necessarily a situation that all the members of the judiciary would favour promoting.
The other approach that Geir makes reference to is pluralism. This approach encompasses the idea that there is not a hierarchy of authority amongst courts that deal with human rights. Instead, each, within its own sphere, is the ultimate authority. The projection here is potentially one of competing authorities. This is also not overly promising in terms of promoting judicial involvement in movement towards a comprehensive human rights judiciary.
In this respect, Geir makes a point that might be usefully developed. This is the call for the different branches at the different levels of the human rights judiciary to work together. This reminds me of the calls that are made in relation to the protection of human rights at the domestic level, for different branches of the state (courts, legislature, and executive) to be understood as working together rather than in competition for the development of human rights protection. I wonder whether it might be possible for something more to be made of this ethos of the different elements of the judiciary working together. In this respect, there might be something to be added from a conceptualisation that depicts the courts as deriving authority from a common source that is constituted from the fact that there are different bodies forming the system (so a common reference point from which each element of the judiciary taps its authority). I’m not sure how this could be rendered beyond the basic idea. Perhaps it could be encompassed with the mooted concept liquid of authority; although perhaps more in line with my thinking would be some sort of a conceptualisation of cloud-like authority. Still, I think it has the potential to be useful in relation to the construction of a comprehensive human rights judiciary, at least to the extent that it avoids some of the noted issues connected to other debated conceptualisations.
C. The powers of the IHRJ to move towards a comprehensive system
If progress towards a comprehensive judiciary is to be made, Geir’s paper provides a basis to assume that there will be a need for development in practices and infrastructure. There will be a need for closer co-operation amongst the judiciary, but also a need for facilitative forums and mechanisms. This could include, for instance, formalised common meetings of the judiciary to work on certain thematic topics. This might take inspiration from the work of the UN Special Rapporteur on Freedom of Opinion and Expression, which has involved bringing representatives of different organisation together to make common declarations.
Still, substantial progress towards a comprehensive human rights judiciary can pose logistical problems, given the need for a degree of agreement to be achieved amongst the different actors and states involved with the different bodies. As such, it is worth considering the extent to which the process could be judiciary led. In this respect, it is noteworthy, as Geir highlights, that the judiciary already make use of a legal concept that might be usefully harnessed for the change and development of working practices. This is the doctrine of implied powers (arguably a different notion from the doctrine of inherent judicial powers).
The doctrine of implied powers is part of international institutional law. It can be understood in different ways. One way is essentially an extension of interpretation, where the power is linked to an express term. The other links the implied power to the functions and objectives of the organisation. Either reading could be used as a basis to make progress towards a comprehensive judiciary (in the sense of developing new working methods, mechanisms to link the different institutions). There are, though, a number of reasons why use of the implied powers doctrine by the human rights judiciary might be queried.
One issue is that it is arguable that the stability of procedures and structures is more important in a judicial context than in other institutional settings. This connects to the importance of legal certainty in the judicial context (the importance that the parties can understand prior to a case the nature of the law and procedures that will be applied). Encouraging the use of implied powers for the building of a comprehensive judiciary could encroach upon the perception of the stability of the institution, which could have a detrimental impact on the overall perception of its legitimacy.
Another related reason to query the suitability of the implied powers approach is connected to its unwritten nature. A lack of objection by states parties to the exercise of an implied power can be treated as an indication that the institution has the power, but there is scope for contestation at a later point. In this respect, the decision of another court that the purported powers had a legal basis would be useful for legal certainty, but this seems unlikely amidst the present infrastructure (here one might see a role for the mooted idea of a world human rights court). Consequently, movement towards a comprehensive judiciary could be built on questionable foundations, which might subsequently be contested.
A third reason to be cautious about encouraging the utilisation of the implied powers doctrine in this area is also related to the states parties. In a recent article in the European Journal of International Law, Andrew Guzman has argued that it is a concern to avoid a Frankenstein’s monster type situation that helps to explain why states have generally been so cautious with the powers afforded to international institutions (including the human rights judiciary). It is also apparent that states are particularly sensitive to attempts by the judiciary to introduce practices that do not have a clear textual basis (as Geir notes in relation to both the ECtHR and the HRC). On this basis, it could be more sensible for energy to be directed towards inclusion of measures related to the development of a comprehensive judiciary in proposals for reform of the various bodies, rather than on encouraging extensive attempts to be undertaken by the judiciary. That there could be some prospect of success in the reform process is supported by Guzman’s contention that with the powers that have been afforded institutions such as the HRC, states have been overly cautious; they could afford much more in the way of powers to bodies such as the HRC and still not risk a Frankenstein situation.
D. Deference to political bodies
My third and final set of points is about how deferential the courts should be to the decision making of political and administrative bodies at the domestic level. This is an issue that is touched upon in Geir’s paper at various points, in the form of reference to the margin of appreciation or the principle of subsidiarity (which can be seen as a consideration that forms part of the doctrine of margin of appreciation). The prominence of matters of deference reflects the centrality of the issue for the functioning of the international human rights judiciary. If more movement is to be made towards a comprehensive human rights judiciary, then one might hope to see a consistent and reasoned approach to deference across the different components of the (national, regional, and global) judiciary.
Arguably it is inevitable that in assessing the consistency of a legislative act or an administrative act, there will be a degree of deference to the political actors. This stems from the more distant position of the court relative to that of the state authority (less resources, less facts, etc.). Geir’s account of the three different levels of human rights protection (national, regional, and global) brings to the forefront, the question of how the level of deference is calibrated. Applying the principle of subsidiarity (understood as do at the local level unless reason to do at international), one might expect a sliding scale of deference according to the level of the body: at the national level, then at the regional, and then finally the global.
In this respect, I found two points in the paper of particular note. The first of these is specific to the European context: the influence of the ECtHR on national courts. It is possible that in developing and applying its doctrine on the margin of appreciation, the ECtHR might influence domestic courts, which can look to the ECtHR for guidance on working methods, to adopt the same approach to deference. However, as the domestic is closer to the factual situation, there would be reason for it to be less deferential. In this respect, it could be useful for further research to be undertaken on the influence of the ECtHR on the degree of deference afforded by domestic courts to domestic politics and administration.
The second point relates to the global level, specifically the HRC, which is flagged up by Geir as not endorsing a margin of appreciation of doctrine. This approach has been partly explained elsewhere as motivated by a concern that, if the HRC was to implement a margin of appreciation, it could lead states parties to take its outputs less seriously. This reasoning is not without persuasiveness, given the nature of the powers of the HRC relative to other bodies. Still, given the distance of the HRC to the actual act, and its struggle for resources, the HRC might be seen as the sort of body that should afford the greatest degree of deference. But, then, perhaps the notion of a comprehensive judiciary requires all the institutions to apply the same doctrine of deference? Many issues remain to be identified and explored if the idea of a comprehensive human rights judiciary is to be realised, not least the question of what such a judiciary could and should look like.