MultiRights Seminar: The Legitimacy of the International Human Rights Judiciary: Elements and Implications of a Political Theory
Prof. Andreas Føllesdal will discuss a work-in-progress paper which will be presented at the International Courts and the Quest for Legitimacy Conference in Tel Aviv.
Discussions about the legitimacy of international law and of international courts and treaty bodies cover a broad range of issues, giving rise to different diagnoses, taxonomies and suggested remedies. The present paper addresses some of the disagreement concerning the legitimacy of international and regional human rights courts and other treaty bodies – the (human rights) judiciary. The aim is to sketch a general theoretical framework suitable to address several of the dilemmas and also illustrate some contributions of and challenges for attempts to bring international political philosophy to bear on institutions and their design.
This judiciary includes regional bodies such as the European Court of Human Rights (ECtHR) which interprets and adjudicates the European Convention on Human Rights (ECHR) and the Inter-American Court of Human Rights (IACHR) established under the Organization of American States (OAS). It also includes international bodies such as the United Nations Human Rights Council (HRC), and core treaty bodies set up to monitor states’ compliance with the international human rights treaties they have subjected themselves to, such as the Committee on the Elimination of Discrimination against Women (CEDAW), and the Committee on the Elimination of Racial Discrimination (CERD) .
The first two sections sketch some of the relevant frame. Section 1 comments on why issues of the legitimacy of this judiciary have recently become so salient among politicians and scholars. Section 2 goes on to register some of puzzles concerning legitimacy that these discussions give rise to, with regard to the human rights judiciary in particular. Section 3 and the following considers a political theory of the human rights judiciary as a response, including in section 5 a brief account of three reasons to value such a judiciary in principle, and how such an account may rebut and respond to some of these concerns. I note in passing where standard or traditional ‘natural law’ theories may differ.