International human rights courts and the (international) rule of law:
Part of the solution, part of the problem, or both?
DOI:
https://doi.org/10.25192/ISSN.1982-0496.RDFD.V.30.I.2909Abstract
Critics challenge international courts for their interference with domestic democratic processes and alleged violations of rule of law standards: they claim that these guardians of the rule of law are not well guarded themselves. These concerns should not be dismissed too quickly as mere disgruntled venting by populist politicians. This article focuses on regional human rights courts and argues that the same interests and values that justify rule of law standards of impartiality, independence and accountability domestically also justify similar standards for international courts. Focusing on the European Court of Human Rights and its doctrine of the margin of appreciation, the article demonstrates how this doctrine may contribute to fulfilling the rule of law but at the same time may also endanger it. This requires changes to the doctrine to ensure that the core rule of law standards of predictability and protection against arbitrary discretion are respected.
Downloads
References
Handyside v United Kingdom. December 7, 1976. ECtHR App No 5493/72.
Wingrove v United Kingdom. November 25, 1996. ECtHR App No 17419/90.
X, Y and Z v United Kingdom. April 22, 1997. ECtHR App No 21830/931997.
Leyla Sahin v Turkey. June 29, 2004. ECtHR App No 44774/98.
Hirst v United Kingdom (No 2). October 6, 2005. ECtHR App No 74025/01.
Animal Defenders International v United Kingdom. April 22, 2013. ECtHR App No 48876/08.
Declaration on principles of international law concerning friendly relations and co-operation
among states in accordance with the Charter of the United Nations. October 24, 1970.
General Assembly Resolution A/RES/25/2625.
Protocol No. 15 amending the Convention on the Protection of Human Rights and
Fundamental Freedoms. June 24, 2013. Council of Europe Treaty Series No 213.
Alter, Karen. 2008. “Delegating to International Courts: Self-binding vs. other-binding
delegation.” Law and Contemporary Problems 71(1):37–76.
Alter, Karen. 2014. The New Terrain of International Law: Courts, Politics, Rights. Princeton
NJ: Princeton University Press.
Benvenisti, Eyal. 1999. “Margin of Appreciation, Consensus, and Universal Standards.” New
York University Journal of International Law and Politics 31(4):843–854.
Brems, Eva. 1996. “The margin of appreciation doctrine in the case-law of the European
Court of Human Rights.” Heidelberg Journal of International Law. 56:240–314.
Bruinsma, Fred J. 2006. “Judicial Identities in the European Court of Human Rights.” In
Multilevel Governance in Enforcement and Adjudication, edited by Aukje van Hoek, Antoine
Hol, Oswald Jansen, Peter Rijpkema, and Rob Widdershoven, 203–240. Antwerp:
Intersentia.
Buchanan, Allen. 2006. “Democracy and the Commitment to International Law.” Georgia
Journal of International and Comparative Law 34(2):305–332.
Collier, David, Fernando D Hidalgo, and Andra O Maciuceanu. 2006. “Essentially contested
concepts: Debates and applications." Journal of Political Ideologies 11(3):211–246.
Dicey, Albert V. 1959. Introduction to the Study of the Law of the Constitution. Basingstoke:
Macmillan Education.
Dzehtsiarou, Kanstantsin. 2015. European Consensus and the Legitimacy of the Strasbourg
Court. Cambridge: Cambridge University Press.
Engel, Norbert P, ed. 1998. “The Doctrine of the Margin of Appreciation under the European
Convention on Human Rights: Its Legitimacy in Theory and Application in Practice.” Human
Rights Law Journal (special issue) 19(1):1–36.
–––– 2012. “More Transparency and Governmental Loyalty for Maintaining Professional
Quality in the Election of Judges to the European Court of Human Rights.” Human Rights
Law Journal 32(7-12):448–454.
Freeden, Michael. 1994. “Political Concepts and Ideological Morphology.” The Journal of
Political Philosophy 2(2):140–164.
Fuller, Lon L. 1964. The Morality of Law. New Haven, Yale University Press.
Gallie, Walter B. 1955-56. “Essentially contested concepts.” Proceedings of the Aristotelian
Society 56:167-198.
Grossman, Nienke. 2012. “Sex on the Bench: Do Women Judges Matter to the Legitimacy
of International Courts?” Chicago Journal of International Law 12(2):647–684.
Kosar, David. 2015. “Selecting Strasbourg Judges: A Critique.” In Selecting Europe's
Judges: A Critical Review of the Appointment Procedures to the European Courts, edited by
Michal Bobek, 120–161. Oxford: Oxford University Press.
Kratochvil, Jan. 2011. “The inflation of the margin of appreciation by the European Court of
Human Rights.” Netherlands Quarterly of Human Rights 29(3):324–357.
Krygier, Martin. 2008. “The Rule of Law: Legality, Teleology, Sociology." In Re-locating the
Rule of Law, edited by Gianluigi Palombella and Neil Walker, 45–69. Oxford, Hart Publishing.
Kuijer, Martin. 1997. “Voting Behaviour and National Bias in the European Court of Human
Rights and the International Court of Justice.” Leiden Journal of International Law 10(1):49–
Kumm, Mattias. 2003-2004. “International Law in National Courts: The International Rule of
Law and the Limits of the Internationalist Model." Virginia Journal of International Law
(1):19–32.
–––– 2009. “The Cosmopolitan Turn in Constitutionalism: On the Relationship between
Constitutionalism in and beyond the State." In Ruling the World? Constitutionalism,
International Law, and Global Governance, edited by Jeffrey L. Dunoff and Joel P.
Trachtman, 257–324. Cambridge: Cambridge University Press.
Letsas, George. 2007. A Theory of Interpretation of the European Convention on Human
Rights. Oxford, Oxford University Press.
Madsen, Mikael R. 2015. “The Legitimization Strategies of International Judges: The Case
of the European Court of Human Rights.” In Selecting Europe's Judges: A Critical Review of
the Appointment Procedures to the European Courts, edited by Michal Bobek, 259–278.
Oxford: Oxford University Press.
Pettit, Philip. 1997. Republicanism: A Theory of Freedom and Government. Oxford:
Clarendon Press.
Raz, Joseph. 1979. The Authority of Law. Oxford: Oxford University Press.
Sadurski, Wojciech. 2019. “Quasi-constitutional court of human rights for Europe?”
Sajó, András. 2013. “An all-European conversation: Promoting a common understanding of
European human rights.” In The European Court of Human Rights and its Discontents: Turning Criticism into Strength, edited by Spyridon Flogaitis, Tom Zwart, and Julie Fraser,
–191. Cheltenham: Edward Elgar Publishing.
Shapiro, Martin. 1981. Courts: A Comparative and Political Analysis. Chicago: University of
Chicago Press.
Stone Sweet, Alec, and Thomas L Brunell. 2013. “Trustee Courts and the Judicialization of
International Regimes: The Politics of Majoritarian Activism in the European Convention on
Human Rights, the European Union, and the World Trade Organization.” Journal of Law and
Courts 1(1):61–88.
Tamanaha, Brian Z. 2004. On the Rule of Law: History, Politics, Theory. Cambridge:
Cambridge University Press.
–––– 2012. “The History and Elements of the Rule of Law.” Singapore Journal of Legal
Studies: 232–247.
–––– 2019. “Always imperfectly achieved rule of law.”
Ulfstein, Geir. 2019. “The European Court of Human Rights as transnational
constitutionalization.”
Voeten, Erik. 2008. “The Impartiality of International Judges: Evidence from the European
Court of Human Rights.” American Political Science Review 102(4):417–433.
–––– 2013. “International Judicial Independence.” In Interdisciplinary Perspectives on
International Law and International Relations: The State of the Art, edited by Jeffrey L Dunoff
and Mark A Pollack, 421–445. Cambridge: Cambridge University Press.
Waldron, Jeremy. 1989. “The Rule of Law in Contemporary Liberal Theory.” Ratio Juris
(1):79–96.
–––– 2006. “The Rule of International Law.” Harvard Journal of Law and Public Policy
(1):15–30.
–––– 2011. “Are Sovereigns Entitled to the Benefit of the International Rule of Law?”
European Journal of International Law 22(2): 315–343.
–––– 2019. “The rule of law and the role of courts.”
Downloads
Published
How to Cite
Issue
Section
License
Copyright (c) 2025 Isabella Marques de Oliveira; Dr. Follesdal; Stanlei Ernesto Prause Fontana
This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.
Copyrights for any articles published in the journal are given to the author and RDFD with first publication rights granted to the Journal. By virtue of their appearance in this open access journal, articles are free to use, with proper attribution, for educational and other non-commercial purposes in accordance with the creative commons.
