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An Unfair Judgment?

- June 15, 2011

Antoine Buyse of ECHRBlog has a nice op-ed in the Guardian in defense of the European Court of Human Rights, which discusses what political science research has to say about the current controversies the Court is embroiled in. Just to give you a sense of what is going on in the UK, the op-ed appears on the same day that the Telegraph headline talks about a “Human Rights Victory for Rapists and Paedophiles,” the Daily Mail: Human rights gives perverts chance to have names taken off sex register (costing taxpayers £1m every year). It seems like there is a new controversy every week. Not the easiest of times to defend the Court.

Among others, Buyse highlights a new working paper I have with Larry Helfer, which shows that the Court’s judgments on LGBT rights issues can lead to national policy changes even in countries that were not directly considered in the judgment. Nevertheless, this effect is strongly conditional on domestic institutions, most notably the presence of national courts with the ability to strike down domestic legislation based on its incompatibility with the European Convention of Human Rights (or the domestic implementation of that Convention). Buyse concludes that:

The ability of domestic judges to do this and the existence, will and effectiveness of lobby groups are national features rather than characteristics of the European court. It seems, therefore, that the jurisprudence of the ECHR is a catalyst increasing the speed of existing movements for change rather than igniting those changes. Instead of looking at the court as a danger, critics should look inward at the national constitutional system and existing movements and moods in their society.

I agree with this conclusion although this also means, of course, that critics may do just that and revise their national systems to minimize the influence of international court rulings. Buyse is right though that the Court is mostly a catalyst for speeding up existing movements of change. I would be a little more cautious in concluding from this that there are no real sovereignty concerns. The Court defines movements of change internationally and sometimes uses its authority to drag states along that deliberately maintain standards that differ from those that prevail elsewhere in Europe. Mostly though, the media and politicians who criticize the Court don’t like the kind of changes the Court codifies; the kind of changes that grant rights to unpopular groups like prisoners or sex offenders.