The International Human Rights Judiciary and National Parliaments
By Ramute Remezaite, PhD Candidate, School of Law, Middlesex University
On 13-14 November 2015, Middlesex University (London) and PluriCourts (University of Oslo) held a workshop on The International Human Rights Judiciary and National Parliaments, with the support of the Democracy as Idea and Practice Fund of the University of Oslo. The workshop discussed how the international and regional judicial human rights mechanisms might help advance the role of domestic parliaments in the implementation of human rights obligations. The workshop followed on an earlier event held in Oslo in March 2015 and will result in a publication examining this under-explored theme.
The workshop brought together a diverse group of human rights scholars and practitioners who discussed the opportunities and challenges for national parliaments to take a more active role to realise human rights. The presentations mainly focused on the Council of Europe system but also covered the Inter-American system and the UN Treaty bodies.
Key role of national parliaments and its limitations
The scholars agreed that national parliaments are in a strong position to promote international human rights standards to better implement its shared human rights obligations. Parliaments may interpret, apply and respect human rights in the laws they make, and when holding the executive to account. Dimitrios Kyritsis of the University of Reading noted that the European Convention system of human rights protection is a joint project in which various actors—executive, legislative and judicial—each have their own credentials, competencies and claims to legitimacy. Parliaments therefore should be seen as a key institutional element of domestic human rights systems.
Although parliaments are well-placed to evaluate the needs for implementation in their jurisdictions, in many cases, national systems lack sufficient and effective engagement of parliaments. Kirsten Roberts of King’s College London named domestic political pressures, lack of independence from the executive, and lack of sufficient resources and knowledge as the key reasons for the weak involvement of parliaments in implementation, despite the existence of important points of connection between the international judiciary and the parliaments.
Andreas Føllesdal of PluriCourts suggested that the European Convention system is one of interaction and interdependence. It was important to assess the value of such regional mechanisms in terms of the objectives they secure that that national authorities cannot secure on their own. He suggested that the European Court of Human Rights (ECtHR) promotes human rights standards across states with different institutional arrangements and levels of democratisation and helps citizens pursue this objective.
The International Human Rights Judiciary in the Practice of Parliaments
Another panel debated how the outputs of the international judicial mechanisms feature in, and shape, the work of national parliaments. Murray Hunt, Legal Adviser to the Joint Committee on Human Rights in the UK Parliament, noted that parliamentarians often mistakenly think that it is solely for the judiciary and lawyers to interpret human rights law, and therefore do not seize the opportunity to play an interpretative role. He introduced a set of Draft Principles and Guidelines on the Role of Parliaments in the Protection and Realisation of the Rule of Law and Human Rights, which provide a basis for parliaments to fulfil their obligations through legislative scrutiny and monitoring of the government’s compliance with international or regional treaty obligations. He referred to the importance of the role of legal advisers with expertise in international human rights law to address ‘scrutiny gaps’ in national parliaments.
Alice Donald of Middlesex University suggested that parliaments need to have necessary information and expertise, combined with sufficient powers, structures and processes in order to enable them to interact with other institutional actors at key stages in the implementation process. Across the Council of Europe, parliaments lack this capacity, and a crucial role is therefore played by ‘mediators’ or ‘transmitters’, such Council of Europe bodies, civil society or media, which can and do draw the attention of parliaments to the meaning and significance of judgments and the requirements of implementation.
Theresa Squatrito of PluriCourts discussed the factors that influence how lawmakers interpret and apply international human rights law as they legislate. She argued that the degree of legal precision and obligation of the law, and the mobilisation of that law by civil society and legal experts, are crucial to explaining the variation in how parliaments interpret and apply international human rights law.
Parliaments in the Practice of the International Human Rights Judiciary
The workshop participants also examined the modalities by which international judicial mechanisms might influence the human rights practices of national parliaments. Matthew Saul of PluriCourts suggested that certain institutions of the international judiciary have attempted to promote the quality of domestic parliamentary process. In his paper, he argued that the international judiciary is fairly well placed to do so but there is a need for the development of coordinated approach towards that goal so that the impact is maximised. This however may be challenging given the different contexts and levels of institutionalisation in assessing the quality of parliamentary processes.
In her paper, Amrei Muller of PluriCourts mapped the ECHR obligations allocated to national courts and parliaments respectively, and how domestic courts and parliaments should potentially interact and interrelate to effectively discharge their respective obligations to ‘secure the rights of the Convention’. It is important to answer how domestic courts and parliaments should complement/enable, control and respect each other in fulfilling these obligations.
Nino Tsereteli, also of PluriCourts, discussed the role of the ECtHR in guiding and facilitating legislative reforms in states with structural problems. She highlighted the problems caused by judicial direction that is either too vague or too specific. Judicial prescriptiveness may stimulate stagnant legislative processes, but may also backfire given the Court’s limited knowledge of the domestic legal, political and social context. Thus, legislative actions should be imposed in specific and imperative terms only in exceptional cases.
Colin Murray of Newcastle University gave an interesting assessment of Strasbourg’s oversight of the UK’s derogations from the ECHR and argued that although increasingly marginalised, derogations still have a role to play within the Council of Europe system.
Parliaments and Compliance with the Outputs of the International Judiciary
The workshop discussed if inclusion of parliaments would lead to better compliance and what factors influence parliaments’ response. Leiv Marsteintredet of the Universities of Oslo and Bergen looked into the practice of the Inter-American Court of Human Rights(IACtHR) in the case of the Dominican Republic and argued that there is no venue for parliaments to get engaged as the IACtHR does not explicitly recognise parliaments but addresses states in its judgments. He contended that remedies indicated by the IACtHR need to be less specific in order for national parliaments in Latin America to get more involved, with the risk that otherwise, human rights judgments and decisions will be perceived as an attack on democracy.
Øyvind Stiansen of PluriCourts discussed how the involvement of national parliaments affects the speed of the compliance process. He argued that the need for legislative action decreases the chances of compliance initially, but concluded that faster compliance cannot replace effective compliance, and that the negative effects diminish over time. His research also indicated that slow compliance linked to the need for legislative action is related to the pace of the legislative process rather than factors linked to the controversy of cases.
The panel raised a number of interesting questions that still remain to be answered. Among those were the challenges of dealing with undemocratic parliaments, as most papers focused on stable democracies; the executive’s role in legislative processes; and the impact of ‘too specific’ or ‘too vague’ judgments on parliamentary processes.
Managing relations between Parliaments and the International Human Rights Judiciary
The last panel consisting of Ed Bates (University of Leicester), Andreas Føllesdal and Colm O’Cinneide (University College London) discussed the nature and significance of political relations between national and international institutions and how tensions in relations affect the engagement of international judiciary with the role of parliaments. Although Article 46 of the ECHR does not envisage any space for non-implementation of ECtHR judgments, the possibility of a ‘democratic override’ has been increasingly raised by those resisting compliance with certain judgments. It was contended that it is important for Council of Europe bodies to articulate clearly why democratic override is incompatible with the obligation to comply with the Convention standards and judgments of the Court.