Domestic Courts and the European Court of Human Rights: Towards Developing Standards of Weak International Judicial Review?

[Başak Çalı is Senior Lecturer (Associate Professor) in Human Rights at the University College London]

This post is the first in a series of three.

The relationship between the highest domestic courts and the European Court of Human Rights has been subject to much debate in the past ten years in Europe. Some of this debate focuses on the backlash against the dynamic interpretation of the European Convention of Human Rights by the European Court of Human Rights. The interpretive principles such as the living instrument doctrine, and positive obligations are often thought to upset a wide variety of values including the original consent of states, democratic governance, and integrity and predictability of domestic legal systems. Some readers on the other side of the Atlantic view these debates as a good reason for remaining outside of international adjudication of human rights. Overly strong international human rights courts involved in exercises of ‘virtue ethics’ are not regarded as a good development for integrity of constitutional systems and democratic politics. Much of these debates assume that international human rights bodies, including the European Court of Human Rights, act as a Court of fourth instance, exercise their own opinions on the interpretation of facts on the ground or that they micro-manage domestic legal orders.

I would like to suggest a different framework here. Much criticism of the European Court of Human Rights and the international human rights law in general relies on the assumption that international bodies are engaged in strong judicial review. I suggest that this is a descriptive error. Much of what the European Court of Human Rights does is best understood as weak international judicial review or, at least, the development of standards of weak international judicial review in the making. Weak judicial review involves leaving an interpretive discretion to domestic courts that take into account the broader interpretive principles of the Court and admitting that where there is more than one reasonable interpretation, the Strasbourg Court will defer to the interpretation favoured by domestic high courts. This makes many of the concerns regarding micro-management of domestic systems by the Strasbourg Court ill-founded.  The most recent example of this is the Von Hannover case of 2012. In this case the Strasbourg Court is embracing this careful approach to its relationship with Constitutional and Supreme Courts, and going through special pains to signal that it wants to work with strong Supreme Courts rather than compete with them. Admittedly, for weak international judicial review to be in place the domestic court 1) has to be a strong rule of law court, and 2) must take international human rights protections seriously.  The development of the standard of weak international judicial review in the human rights field has parallels with the doctrine of  ‘responsible representative governments’ in the WTO Hormones case and points to an important emerging theme for future debate: should international courts treat different domestic courts differently as a matter of doctrine?  Do we need an explicit doctrine of ‘responsible domestic courts’ for international judicial review?

In the forthcoming post, I will review two cases from opposite ends of the Council of Europe terrain: the Von Hannover v. Germany No. 2 case of 2012 and the Fatullayev v. Azerbaijan case of 2010 to show that the European Court of Human Rights is signalling restraint when faced with a responsible domestic court and is willing to signal activism when faced with the opposite.