Føllesdal: International Human Rights Courts and the (International) Rule of Law: Part of the Solution, Part of the Problem, or Both?

Andreas Føllesdal (Univ. of Oslo - PluriCourts) has posted International Human Rights Courts and the (International) Rule of Law: Part of the Solution, Part of the Problem, or Both? Here's the abstract:

Regional human rights courts (RHRC) are often tasked to promote not only states’ human rights obligations, but also rule of law standards including predictability, legality, and the independence, impartiality and high quality of the judiciary. Critics challenge these international judiciaries for their interference with domestic democratic processes and violation of rule of law standards: these guardians are not themselves well guarded. What are we to make of such complaints? These concerns should not be dismissed too quickly as mere disgruntled venting by populist politicians. At least two arguments for dismissing the concerns are found wanting. One objection of a more theoretical nature holds that it is a category mistake (Ryle 1949) to apply domestic rule of law standards to such international institutions. Against this, the article first grants in section II that there are conflicting conceptions of the rule of law standards. Section III argues that the same values that justify the domestic rule of law standards of impartiality, independence and accountability support similar standards for RHRCs. Their independence from the state parties may indeed render RHRCs unpredictable sources of arbitrary discretion. A second more practical defense against the criticism of IHRCs is that their practices can avoid such dilemmas by showing more deference toward the states. Section IV considers a prime example of such strategies by one of the most likely culprits, the European Court of Human Rights (ECtHR), arguably the most powerful regional human rights court. The ECtHR has developed a doctrine of a ‘margin of appreciation’ which arguably promotes human rights and domestic rule of law, and reduces the risk of domination by state authorities, without imposing new risks to those standards. Section V challenges this claim, to argue that even this doctrine of a margin of appreciation as currently developed by the ECtHR does create new risks of arbitrary discretion, contrary to the rule of law values it is tasked to guard. The critics’ concerns can thus not be ignored, but should spur changes to the doctrine of a margin of appreciation to satisfy the rule of law standards and the value they promote: predictability and protection against arbitrary discretion.