The democratic legitimacy of international Human Rights conventions : political constitutionalism and the European Convention on Human Rights

Abstract

International Human Rights Courts (IHRCts), such as the European Court of Human Rights (ECtHR), have come under increasing criticism as being incompatible with domestic judicial and legislative mechanisms for upholding rights. These domestic instruments are said to possess greater democratic legitimacy than international instruments do or could do. Within the UK this critique has led some prominent judges and politicians to propose withdrawing from the European Convention on Human Rights (ECHR). Legal cosmopolitans respond by denying the validity of this democratic critique. By contrast this article argues that such criticisms are defensible from a political constitutionalist perspective but that International Human Rights Conventions (IHRCs) can nevertheless be understood in ways that meet them. To do so, IHRC must be conceived as legislated for and controlled by an international association of democratic states, which authorizes IHRCts and holds them accountable, limiting them to ‘weak review’. The resulting model of IHRC is that of a ‘two level’ political constitution. The ECHR is shown to largely accord with this model, which is argued to be both more plausible and desirable than a legal cosmopolitan model that sidelines democracy and advocates ‘strong’ review.