Unpatriotic swipes at the Court? Separation of powers and international human rights control

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There was a very interesting event yesterday at the Bonavero Institute of Human Rights (BIHR), Faculty of Law, University of Oxford, on the topic of ‘Adjudicating Rights’. Professor Kate O’Regan opened and chaired the event, which included presentations from Judge Paulo Pinto de Albuquerque (European Court of Human Rights) and from Professor Jeff King (UCL). It was an excellent event, very thought-provoking and well received by a good audience in attendance. The event was ‘videoed’, so hopefully we can look forward to seeing that on the web, and perhaps my stumbling question to the panel will appear on it – or be edited out!

The reason I wanted to write this post is as follows. Often when attending events like yesterday’s I ask a question related to the limitations on the Court’s jurisdiction and authority. Sometimes I feel that such questions are perceived as an unpatriotic swipe at human rights, and the Strasbourg Court (which is certainly not my intention; indeed, quite the contrary, for I wish to see the Court preserve its authority, by it recognising the limitations that should (in my opinion) apply to it).

I make this point generally here, and not in relation to yesterday’s event, and, to be clear, at all events the speakers have always been extremely respectful and polite in their answers and generous with their time afterwards (as was so yesterday). Nonetheless, given the topic of yesterday’s event, which also touched on ‘separation of powers’, it seemed appropriate for me to write these thoughts down .

Here, then, are some thoughts inspired by yesterday’s event (and let me thank Judge Pinto Pinto de Albuquerque, Professor King, and Professor O’Regan and the BIHR for inspiring them, although, of course, they are not responsible for them).

1)   Point of departure: the types of issues that the separation of powers doctrine raises – in particular, those related to expertise and institutional competence – are especially importance for an international human rights court, precisely because of its international status. The subsidiary nature of international review has a relevance here. Does one accept this as the point of departure?

2)  If one does, then scope may be opened up for the propositions that I now set out (but less so, if the point of departure is not accepted).

a.     There is no contradiction between believing, passionately, on the one hand, that human rights are vital, but that, on the other, international institutions may need to respect the principle (within reasonable boundaries) that certain decisions related human rights are appropriately decided at the national level.

b.     It is not a contradiction to say, on the one hand, that certain prisoners should be enfranchised, and that, on the other hand, to maintain that Strasbourg should not be the institution to initiate legal change in this field.

3)   3) Separation of powers issues may become more important for an international court over time, as it, and the wider system within which it operates, matures and evolves. Of course, this does depend on context and the applicable landscape. Here, however, consider the proposition that national authorities may obtain a  greater claim to institutional competence the more they integrate and engage with, and, of course, properly apply, relevant human rights standards: faithful incorporation of the Convention, and its application in good faith by national authorities should be of considerable relevance here. In should affect the distribution of powers between the national and international levels.

4)  As a personal opinion, I believe that the point just made may be of particular importance to a court such as Strasbourg. It is probably a fact of life for that Court – at least one that applies in the UK context – that the more it moves into relatively controversial territory in respect of which it was not self-evidently set up (say prisoner voting, perhaps) the more it risks questions arising about the source of the authority that it has to make judgments in that field. It may well be that those questions arise precisely because the Court in question is an international institution, i.e. not part of the constitutional order of the State and, as such, is seen as ‘constitutionally legitimate’. Such questions may prompt a debate about the constitutional legitimacy of the institution that is being criticised when acting in the controversial field (to be distinguished from its overall legitimacy); and at that point there is a risk that the consent of the States – or some of them – who are subject to the jurisdiction of the Court, and upon whom its success rests, may start to be threatened. Here again the special nature of an international court may be relevant; after all, it relies upon the consent, good faith and cooperation of these States to make it effective via enforcement of judgments (even if there is an international legal obligation to enforce them).

5)   Does the above amount to an unpatriotic swipe at the Court, or is it a statement seeking to make a point about realistic limitations applying with respect to its authority?

6) Either way, when justifying the Court’s authority reference to the nature of the Convention as a ‘living instrument’, i.e. the evolutive interpretation doctrine, is usually brought up, almost as if it is an ace-card to win any argument, or trump any criticism. Here it seems to me that there is a risk that defenders of the Court use this point as a catch-all response to criticisms. (Indeed, if valid criticism can be made of those who roll out the ‘aggrandisement’ argument in a blunt and sweeping fashion, a similar point could be made about citation the Convention as ‘a living instrument’ by some of its defenders). Often too, the implicit (or express) suggestion is that any criticism of the Court amounts to a questioning of the evolutive interpretation  doctrine itself, and a rallying cry for ‘originalism’ and the proposition that the Court can never enter into new territory. This is a flawed perspective, I respectfully submit. The issue, I suggest, is not the validity of the evolutive interpretation doctrine, but how far, and with what muscularity, it can be employed legitimately.

 7)   With respect to that last point Hirst v UK is an emblematic case (prisoner voting again[groan, forgive me]).  The Strasbourg Court was divided 12 v 5; if one reads the minority view (a joint dissent) it is evident that they are not contesting evolutive interpretation in principle (of course not), but how far it could be pushed in the case at hand. They argued, in essence, that the majority were applying the doctrine too boldly for the case at hand, given the Court’s status as an international court. As the dissenters concluded:

Our own opinion whether persons serving a prison sentence should be allowed to vote in general or other elections matters little. Taking into account the sensitive political character of this issue, the diversity of the legal systems within the Contracting States and the lack of a sufficiently clear basis for such a right in Article 3 of Protocol No. 1, we are not able to accept that it is for the Court to impose on national legal systems an obligation either to abolish disenfranchisement for prisoners or to allow it only to a very limited extent

7)   8) This brings me back to the first numbered point above. To what extent do separation of powers issues become more acute for a court whose jurisdiction is international in nature? It seems to me that the minority in Hirst saw the matter a different way to the majority. Was that minority taking an unpatriotic swipe at their own court? I don’t think so; they were making the point that this was risky terrain for the Court to get into. Unfortunately, they have been proven correct*. That said, I would also submit that the Court has modified its approach in recent years; its is less bold, and one does not tend to see judgments like Hirst. Is that back-tracking by a Court facing a crisis of authority? Perhaps. But perhaps it could also be the Court recognising the limits of its authority, and more conscious than before of ‘separation of powers’ issues.

(T   (*To be very clear, this is not a reason for refusal to implement the judgment. It must be implemented, and there are very good reasons to do so, in order to maintain the Court’s authority, and also because only a very minor change to UK law is required to do so. There are many other reasons too).

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