Judicial Legitimacy and Authority of Supranational Human Rights Courts: A Comparative Analysis of the Perception of the European Court of Human Rights

Lead Research Organisation: University College London
Department Name: Political Science

Abstract

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Description The central finding is that the European Court of Human Rights enjoys a presumption of deference from domestic politicians, judges and lawyers in the five diverse domestic settings studied and amongst diplomats in Strasbourg. This deference, however, is conditional. The relationship between domestic institutions and the Court is seen through the lens of a 'quasi- authoritative' relationship. Domestic actors reserve the right to contest the judgments of the Court without making broader claims to undermine its overall interpretive and adjudicative authority. They consider the enforcement authority of domestic actors as an essential element for resolving underlying tensions between the competing authorities of supranational courts and domestic institutions. Diplomats, too, defer to the Court and international civil servants when monitoring compliance, but do not rule out 'bargaining' to minimize the international scrutiny of domestic compliance choices. (See: The Legitimacy of the European Court of Human Rights: The View from the Ground).
The variations in how actors conceptualise of their relationship with the European Court of Human Rights also offer more granular findings with respect to the political and judicial dimensions of this relationship.
The interaction between historical patterns of co-operation in an area of international relations (in this case human rights in Europe) on the one hand and countries' domestic institutional culture on the other shapes patterns of the perceived relationship with the Court. The historical pattern of co-operation gives rise to pro-legitimacy and pro-compliance arguments across all country-contexts studied. Domestic institutional backgrounds, however, do not have the same effect.
Whilst some democratic institutional background arguments operate in support of legitimacy and compliance (the case of Germany), others oppose it (the cases of Ireland and the United Kingdom). National ideologies counteract full deference to the Court both in weaker rule of law countries (the cases of Turkey and Bulgaria) and also in established ones (Ireland). This finding adds an important differentiating layer to the existing legitimacy and compliance accounts that are limited to the relevant institutional characteristics of democracies (regular
elections, political leverage of domestic constituents, respect for the rule of law) in that it highlights the importance of the institutional culture through which regime types are made real. In summary, human rights litigation plays an important role in triggering change in the discourse and practice of domestic institutions, but this role has its limitations both in strong rule of law countries and in weaker ones.

In the judicial realm we find that apex domestic judges do not draw on formalistic distinctions, such as monism versus dualism or civil law versus common law, as starting points for formulating their relationship with the European Court of Human Rights. Neither do they view their relationship with the Court as exclusively hierarchical or persuasive. Instead judges employ a pluralistic structure within which they seek to reconcile judicial cross-border harmonisation in the field of human rights with the integrity, stability and predictability of domestic law (Perceptions of the Authority of the European Court of Human Rights amongst Apex Court Judges in the United Kingdom, Germany, Ireland, Turkey and Bulgaria).

Plans for further research include deepening the research agenda by studying the dynamics of the social legitimacy of international law within a single political and judicial context, but across multiple issue areas and testing the findings with respect to other regional human rights courts.
Exploitation Route The project will have potential impacts through the publication of four further empirical and methodological articles (one in press, one under review, and two in preparation) in peer reviewed journals and four book chapters (submitted) in the coming 12-24 months.

The findings of this research will be synthesised in a monograph that aims to make an interdisciplinary contribution to how the relationship between international and domestic legal systems is negotiated through an in-depth analysis of the European Court of Human Rights in domestic political and legal contexts.
It is anticipated that the handbook entitled 'Monitoring Compliance with Human Rights Judgments in Europe: A Handbook for NGOs' (published May 2011) will have a cross- Europe impact on the approach to compliance monitoring by non-governmental organisations. It is to be translated it into Turkish, Russian, Polish and Croatian by several major NGOs (with more anticipated).

Finally a new research and policy collaborative project has emerged from this study. The project which I have collaboratively designed, 'Judgment Watch', was successful in securing funding from the Ford Foundation to monitor the varying reception of human rights judgments in different legal and political settings globally. It builds on the findings of this project and provides a test bed for its findings in other regions.
Sectors Other
URL http://www.researchcatalogue.esrc.ac.uk/grants/RES-061-25-0029/outputs/read/fbf3f426-2440-4c79-9b14-13f9855fb4fe
 
Description A new research and policy collaborative project has emerged from this study. The project which I have collaboratively designed, 'Judgment Watch', was successful in securing funding from the Ford Foundation to monitor the varying reception of human rights judgments in different legal and political settings globally. It builds on the findings of this project and provides a test bed for its findings in other regions.
First Year Of Impact 2009
Sector Other
Impact Types Cultural,Societal,Policy & public services
 
Description Judgment Watch 
Organisation Economic and Social Research Council
Department Judgment Watch
Country Global 
Sector Charity/Non Profit 
PI Contribution Judgment Watch is an international platform of researchers, ngos, lawyers, and judges that aims to support, monitor and promote the implementation of human rights judgments.
Start Year 2009
 
Description Avrupa _nsan Haklar_ Mahkemesi Kararlar_n_n Uygulanmas_n_ _zleme Çal__tay_ 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Primary Audience
Results and Impact Workshop on Monitoring the Implementation of the Judgments of the European Court of Human Rights against Turkey
Year(s) Of Engagement Activity
URL http://ihm.politics.ankara.edu.tr/#
 
Description Beyond judicial internationalism and nationalism : the quasi-authority of the judgments of the European Court of Human Rights in domestic courts 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Primary Audience
Results and Impact Seminar based on the findings of the qualitative research on the domestic judges' understanding of their relationship with the European Court of Human Rights delivered at the University of Nottingham.
Year(s) Of Engagement Activity
 
Description Compliance with the judgments of the European Court of Human Rights 
Form Of Engagement Activity A press release, press conference or response to a media enquiry/interview
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Media (as a channel to the public)
Results and Impact Radio broadcast interview
Year(s) Of Engagement Activity 2011
 
Description International human rights law and domestic apex courts 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Primary Audience
Results and Impact Paper delivered at the 'Right to Individual Petition to the Turkish Constitutional Court and International Human Rights Law' event.
Year(s) Of Engagement Activity
 
Description The perceived legitimacy of the European Court of Human Rights in the United Kingdom : a comparative analysis of judicial and political discourses 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Primary Audience
Results and Impact I was invited to speak at a half day workshop entitled 'Bashing Strasbourg: Socio-scientific insights on the legitimacy of the ECtHR' at the Roosevelt Academy, the Netherlands, to speak as part of a panel of speakers to discuss the perceived legitimacy of the European Court of Human Rights in different countries in Europe.



My presentation focussed on my analysis of the perceived legitimacy of Strasbourg Court in the United Kingdom.



Further information can be found at: http://www.roac.nl/roac/?p=news&i=472
Year(s) Of Engagement Activity
 
Description The task of the national judge and the impact of the decisions of the European Court of Human Rights on the domestic legal system 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Primary Audience
Results and Impact Lecture delivered to High, Appeal and First Instant Court Judges in Azerbaijan
Year(s) Of Engagement Activity 2011