Domestic judicial design by international human rights courts.

Author:Kosar, David

Regional human rights courts in Europe and the Americas came into being in the wake of World War II. The European Court of Human Rights (ECHR) and Inter-American Court of Human Rights (IACHR) were established in order to adjudicate on alleged violations of the rights of individuals. Yet, since their inception these courts have also influenced other areas of international law. Apart from their impact on general international law, (1) their case law has had significant spillover effects on international criminal law, (2) international refugee law, (3) international environmental law, (4) the law of armed conflicts, (5) and the law of the sea. (6)

Most of these spillovers into other areas of international law have been widely studied, (7) as has the question of states' compliance with the rulings of human rights tribunals. (8) By contrast, in this article we place institutions, rather than states, at the center of the analysis and move away from the debate about compliance that has dominated international law scholarship in recent years. (9) Instead, we explore another important spillover effect that has previously escaped detailed scholarly attention. (10) We show that as regional human rights courts, the ECHR and IACHR have been undertaking a broader array of roles than those originally envisioned and that their recent case law reduces the monopoly power of parliaments to determine how to structure their judiciaries, at least on the assumption that states comply with their international human rights obligations. Compliance with, and the efficacy of, the ECHR and IACHR judgments is inescapably related to what these two courts say, or see themselves as being in a position to say, about institutional reform, and some questions about compliance and efficacy will inform our discussion below. But our primary focus is on what the courts tell governments with respect to designing the judiciary (and not on orders that it gives the judiciary directly). (11)

More specifically, we examine the ways that the ECHR and IACHR have assessed the structure and functioning of domestic judicial systems and whether those regional courts have, in the process, consciously or unconsciously been advancing their own preferred conceptions of what a judicial system should look like. In other words, our goal is to identify the "judicial design agendas" of the ECHR and IACHR, with particular attention to questions concerning the separation of powers. (12) We are also especially interested in how the power of domestic courts is affected by the activities of the ECHR and IACHR in this realm. These two regional human rights courts, by empowering judges and also themselves, have not only created better conditions for their own entrenchment but also democratic deficits that may only increase as they evolve into quasi-constitutional courts that are not subject to domestic checks and balances.

Much of the thinking about the institutional design of state judiciaries is found between the lines in ECHR and IACHR decisions, but one can see instances in which these agendas come to the fore. One example is the line of cases in which the IACHR considered whether administrative proceedings could qualify as judicial proceedings for the purpose of meeting state obligations of offering adequate judicial protection under Article 25 of the American Convention on Human Rights (13) (American Convention). Other examples can be found in the cases where the remedies ordered by two courts have required institutional reforms. The IACHR has been bolder regarding the scope of remedies; (14) it has a broader mandate when it comes to reparations, and a specific provision in the American Convention requires states to change their legislation to conform to the convention. (15) Nevertheless, institutional change has also resulted from ECHR judgments under the European Convention on Human Rights (16) (European Convention), initially through a series of individual judgments and, more recently, nonmonetary reparation orders (17) and the so-called pilot judgments. (18) For instance, France had to alter the role of advocates general in the Conseil d'etat and the Cour de cassation (19) as a result of the ECHR's Grand Chamber judgments in Kress v. France and Martinie v. France. (20) Turkey eventually abolished its National Security Courts altogether under pressure from the ECHR. (21) Finally, many believe that the Blair government's constitutional reform that abolished the House of Lords' Appellate Committee as the top court in the United Kingdom was triggered by the ECHR's interpretation of the right to a fair trial. (22)

This article charts how the ECHR and IACHR have come believe that domestic judiciaries need to be structured in order to satisfy the requirements of the European and American Conventions--a task that moves the courts well beyond specific determinations of whether the rights of particular individuals under those two conventions have been violated (and, if so, what remedies are appropriate). We believe that this involvement of the ECHR and IACHR in domestic institutional design issues has gone largely unnoticed. More specifically, we argue that the two courts have increased the power of domestic courts by delving into institutional design and that, by the same actions, the two courts have increased their own power. Three mechanisms seem to contribute to this refashioning of domestic and international judicial power. The first one is that ECHR and IACHR have a broader understanding of what judicial power is than many member states and that this broader understanding has led the courts to judicialize new areas of law. Second, both courts also prioritize judicial independence over other judicial virtues, with the consequence that the courts' judgments have challenged the primacy of the legislature in lawmaking, which has altered, in turn, the domestic separation of powers. Finally, both courts affect the internal architecture of domestic judiciaries by endorsing the unification of court administration and also by empowering lower court judges, which alters hierarchical power structures within the domestic judiciaries themselves.

The analysis of the article centers on the case law of the ECHR and IACHR, and looks at judgments both in contentious cases (ECHR and IACHR) and advisory opinions (IACHR only). We chose these two human rights courts for three reasons: they address similar sets of issues stipulated by treaties with reasonably similar textual bases; their case law is sufficiently developed; and their judgments have similar normative weight. Another factor is that the ECHR's judgments affect both established and developing democracies, whereas the IACHR's judgments concern primarily developing democracies. (23) This factor enables us to examine whether the maturity of democracies affects the standards employed by international human rights bodies. Therefore, even though we do touch on the consequences of our findings beyond the European and inter-American systems, we do not study the case law of the other established regional human rights court--the African Court on Human and Peoples' Rights--which was only recently established and whose case law yet to develop enough for stable trends to be identified. We also exclude quasi-judicial human rights bodies, such as the Human Rights Committee, because their decisions have different normative weight, and the Court of Justice of the European Union, because doing so would raise issues that are not overly relevant for international law more broadly. Finally, we leave aside other specialized fields of international law, such as international arbitration, for they raise different issues stemming from textually different documents. (24)

A thorough study of whether ECHR and IACHR recommendations are implemented domestically is also beyond the scope of this article. We mention examples of domestic implementation merely to show the potential of ECHR and IACHR judgments to shape domestic judicial design, but we do not comprehensively analyze the actual compliance with those judgments or the factors influencing compliance. That is, our aim is to weave the "master narrative" that emerges from the two courts' judgments on judicial design rather than study the level of acceptance of this narrative among the states. Nevertheless, although we present to systematic assessment of efficacy, this article shows that many decisions of both courts regarding domestic judicial design have had an impact.

This article proceeds in three parts. Part I examines the case law of the ECHR and IACHR with regard to three sets of judicial design issues. It focuses primarily on issues addressed by both courts but also identifies areas where one court went significantly further than the other. Part II compares the judicial design agendas of the ECHR and IACHR, and then discusses how and to what extent the two courts define the contours of the "optimal judiciary." The conclusion, part III, summarizes our argument and discusses the potential consequences, intended and unintended, of the courts' following their current agendas for judicial design.


    Human rights courts were not originally endowed with the competence to tell states how to structure their judiciaries. To be sure, the texts of both the American (25) and the European (26) Conventions do establish certain minimal rights that need to be protected through judicial institutions, but they do not provide detailed mandates to states regarding the specifics of institutional design. The relevant provisions state that individuals have particular rights but not that states have the obligation to protect those rights in any specific manner. (27) But the ECHR and IACHR have deemed those details to be a fundamental part of their mandates; the assumption has been that ordering adjustments to state structures has been...

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