Subsidiarity and International Human-Rights Courts: Respecting Self-Governance and Protecting Human Rights - Or Neither?
In the article "Subsidiarity and International Human-Rights Courts: Respecting Self-Governance and Protecting Human Rights - Or Neither?", Andreas Føllesdal discusses the relationship between the principle of subsidiarity and international human rights courts. Read the article in Law and Contemporary Problems, vol. 79(2): 147-163.
Scholars, politicians, and judges often use conceptions of subsidiarity as a normative framework for assessing how to allocate and exercise authority within a multilevel political and legal order. Principles of subsidiarity unanimously espouse a presumption of authority at more local levels, but they differ on important details. This article considers how subsidiarity may be brought to bear on the challenges the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights face. The article focuses on two politically salient, normative questions. First, should states - even well-functioning democracies - subject themselves to International Courts (ICs) with the authority to interpret and adjudicate alleged violations of relevant human-rights treaties? Second, is it is consistent with their mission of protecting human rights that ICs grant the states some discretion, that is, a “margin of appreciation,” or does such discretion nullify the human-rights protection the ICs were established to provide?
This article suggests that states have subsidiarity-based rationales for binding themselves to ICs and that the ICs should grant states a conditional margin of appreciation with respect to certain human rights. A historical and empirical backdrop explains how these ICs can protect human rights while being duly deferential to state sovereignty, even for states with minimal democratic credentials. Subsidiarity considerations identify the authority a human-rights court or treaty body should enjoy as well as limits it should face. In particular, subsidiarity arguments help delineate the margin of appreciation that the ECtHR grants states in determining whether certain human-rights violations have occurred.