(PDF) How Does, Could, and Should the International Human Rights Judiciary Interact with National Parliaments

How does the international human rights judiciary (IHRJ) connect with national parliaments? What challenges and opportunities do these connections create for the realization of human rights? What should the IHRJ do in order to maximize the contributions of national parliaments to human rights? To shed light on these issues, this paper takes the following approach. Firstly, an account of how the IHRJ should be viewed in relation to the constitutional practices of states. This leads to consideration of what the role of parliaments should be to realise human rights. Subsequently, points of connection between the IHRJ and national parliaments are identified and explored, with a particular focus on how they might advance or detract from the human rights role of parliaments. The penultimate section examines why relations between the IHRJ and national parliaments break down and how the parties involved should respond. The final section proposes a set of principles for organising how IHRJ institutions relate to national parliaments: supportive subsidiarity, coordination of connections, and contextual sensitivity. Future research agendas are indicated.

Chapter 14 How Does, Could, and Should the International Human Rights Judiciary Interact with National Parliaments? MATTHEW SAUL 1. Introduction This book has argued that national parliaments are important for the legitimacy and effectiveness of the emerging international human rights judiciary (IHRJ). When parliaments under perform their role in the protection and realisation of human rights, this increases the caseload of the IHRJ, and it is more likely that its findings will be overlooked or resisted. To help understand how the IHRJ might advance the performance of parliaments on human rights, this book has studied how the IHRJ relates to the human rights role of parliaments. In this concluding chapter, the findings of the individual chapters are analysed and related to the emerging policy and scholarly debate in this field. The aim is to shed further light on the central research questions of the volume. How does the international human rights judiciary connect with national parliaments? What challenges and opportunities do these connections create for the realization of human rights? What should the IHRJ do in order to maximize the contributions of national parliaments to human rights? The analysis follows the structure of the book. Firstly, an account of how the IHRJ should be viewed in relation to the constitutional practices of states. This leads to consideration of what the role of parliaments should be to realise human rights. Subsequently, points of connection between the IHRJ and national parliaments are identified and explored, with a particular focus on how they might advance or detract from the human rights role  This book chapter is approximately as appears in M. Saul, A. Follesdal, and G. Ulfstein (eds.) The International Human Rights Judiciary and National Parliaments: Europe and Beyond (Cambridge University Press, 2017). It was prepared under the auspices of MultiRights, an ERC Advanced Grant on the Legitimacy of MultiLevel Human Rights Judiciary; and PluriCourts, a Research Council of Norway Centre of Excellence on the Legitimacy of International Courts. Thanks to Andreas Follesdal and Geir Ulfstein, for very helpful comments on earlier drafts. 1 of parliaments. The penultimate section examines why relations between the IHRJ and national parliaments break down and how the parties involved should respond. The final section proposes a set of principles for organising how IHRJ institutions relate to national parliaments: supportive subsidiarity, coordination of connections, and contextual sensitivity. Future research agendas are indicated. 2. Supportive subsidiarity in a transnational separation of powers IHRJ institutions such as the European Court of Human Rights (ECtHR) should be treated as part of the separation of powers.1 This foundational argument of the volume has been set out in Geir Ulfstein s chapter. Ulfstein s argument for revaluating the nature of the separation of powers doctrine focuses on the impact of the ECtHR on constitutional issues. Two key features of the ECtHR s impact are identified: The first is its significance in the relationship between the state and its citizens in determining the content of relevant human rights. The other is its prominence in the relationship between different national constitutional organs. The extensive case law of the ECtHR means an essential role of the Court in national judicial review of executive and legislative acts is to assure consistency with the ECHR. From this perspective, the ECtHR is the IHRJ institution that provides the strongest support for the argument that the separation of powers has a transnational element. Along with the legally binding nature of its judgments, the ECtHR has extensive case law and relatively high levels of compliance.2 Still, other IHRJ institutions also impact on constitutional issues. This point is evident for other regional human rights courts, such as the IACtHR.3 Other institutions, such as UN human rights treaty bodies, do not have per se legally binding powers. States are free to depart from the interpretations of the The central precepts of the domestic separation of powers are that governmental tasks ought to be assigned to those who will perform them adequately and … that they ought to be distributed among institutional actors so government power will be internally checked', D. Kyritsis, 'Constitutional Review in Representative Democracy', Oxford Journal of Legal Studies, 32 (2012), 297, 303. 2 D. Anagnostou, Politics, Courts and Society in the National Implementation and Practice of European Court of Human Rights Case Law , in D. Anagnostou ed. , The European Court of Human Rights: Implementing Strasbourg s Judgments on Domestic Policy (Edinburgh University Press, 2013) p. 211, 212. 3 A. Huneeus, Constitutional Lawyers and The Inter-American Court s Varied Authority , Law and Contemporary , ; D. Kosar and L. Lixinski, Domestic Judicial Design by International Human Rights Problems, 79 Courts , American Journal of International Law, 109 (2015) 713, 746. 1 2 treaties that the UN treaty bodies provide.4 Yet states are under an obligation to operate in good faith in relation to their obligations under treaties.5 The meaning of good faith in relation to the various procedures of the treaty bodies is starting to become clearer.6 Ulfstein, writing elsewhere, has argued that it entails a presumption of the correctness of such findings, and require states parties, including national courts, to present good reasons for any conflicting opinion. 7 In this way, UN treaty bodies also have the potential to generate concrete reforms in constitutional practices.8 The transnational separation of powers requires precepts to guide how the external IHRJ institutions relate to the three branches of domestic government.9 In practice and theory, subsidiarity is emerging as a central precept. The common core of different conceptions of subsidiarity is described by Follesdal as a: rebuttable presumption for the local. Local authorities should enjoy as much authority as possible, so long as it is consistent with achieving the particular, normatively permitted or required objectives of the relevant IC [international court]. 10 N. Rodley, The Role and Impact of Treaty Bodies , in D. Shelton ed. , The Oxford Handbook of International Human Rights Law OUP p. , ; H Keller and G Ulfstein, Introduction , in H. Keller and G. Ulfstein eds. , UN Human Rights Treaty Bodies: Law and Legitimacy (CUP, 2012) p.1, 4; although see also M. Scheinin, Impact on the Law of Treaties , in M.T. Kamminga and M. Scheinin eds. , The Impact of Human Rights Law on General International Law (Oxford University Press, 2009) p. 23, 33. 4 Article 26, Vienna Convention on the Law of Treaties. See, e.g., the UN Human Rights Committee HRC has found that the failure of a state to implement its interim or provisional measures is incompatible with the obligation to respect in good faith the procedure of individual communication established under the Optional Protocol , General Comment No , UN Doc. CCPR/C/GC/ November 2008), para 19. 7 G. Ulfstein, Law-making by Human Rights Treaty Bodies , in R. Liivoja and J. Petman eds. International LawMaking: Essays in Honour of Jan Klabbers (Routledge, 2014) (on file p. 6); drawing upon the finding of the ICJ that it should ascribe great weight to the interpretation adopted by this independent body [the UN Human Rights Committee] that was established specifically to supervise the application of that treaty [the ICCPR]. Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) para. ; see also B. Çalı. The Legitimacy of International Interpretive Authorities for Human Rights Treaties , in A. Follesdal, J. K. Schaffer, and G. Ulfstein (eds.), The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives (2014 CUP) p. 141, 148. 8 M. Scheinin, International Covenant on Civil and Political Rights , in G. Ulfstein ed. Making Treaties Work (CUP, 2007) p. 48, 66. 9 For perspectives on how domestic courts and political bodies should relate on rights based issues that might be developed to take account of the particularities of IHRJ institutions, see, e.g., D. Dyzenhaus, What is a Democratic Culture of Justification ? in M. Hunt, H.J. Hooper, and P. Yowell eds. , Parliaments and Human Rights: Redressing the Democratic Deficit, (Oxford: Hart, 2015) 425; S. Fredman, From Dialogue to Deliberation: Human Rights Adjudication and Prisoners Rights to Vote , in M. Hunt, H.J. Hooper, and P. Yowell eds. , Parliaments and Human Rights: Redressing the Democratic Deficit, Oxford: Hart, ; G.C.N. Webber, The Unfulfilled Potential of the Court and Legislature Dialogue , Canadian Journal of Political Science 42 (2009) 443; D. Kyritsis, 'Constitutional Review , 298. 10 A. Follesdal, Subsidiarity And International Human-Rights Courts: Respecting Self-Governance And Protecting Human Rights—Or Neither? , Law & Contemporary Problems, 79 (2016) 147, 148 – 149; on the specifics of human 5 6 3 In international human rights law, subsidiarity gains most attention in relation to the ECtHR.11 The ECtHR is subsidiary to national mechanisms for the protection of rights and fundamental freedoms. This is a reference point for determining when the ECtHR should exercise more or less restraint in its practices, including the strength of its review and the specification of remedies.12 Key considerations that weigh in favour of more deference to the domestic level on certain issues include democracy, expertise, and the policy environment.13 Increasingly, arguments are made that considerations similar to those underpinning ECtHR subsidiarity should also inform the practices of other bodies within the IHRJ. Both other regional courts14 and the UN treaty bodies15 have been reluctant to adopt subsidiarity as a guiding principle. This reluctance is for various reasons connected to the contexts within which these bodies operate.16 But some of these reasons, such as the low quality democratic nature of governments under the jurisdiction of the IACtHR, are fading.17 Moreover, institutional theories of subsidiarity can be developed in line with the context of a particular institution.18 In this respect, two sides of subsidiarity should be considered as relevant for international human rights law. The better-known side of subsidiarity is as a basis for calibrating the exercise of responsibilities by the higher level through reference to rights subsidiarity, see S. Besson, Subsidiarity in International Human Rights Law – What is Subsidiary about Human Rights? , The American Journal of Jurisprudence, 61(2016) 69; see also M. Jachtenfuchs and N. Krisch, Subsidiarity in Global Governance , Law & Contemporary Problems, 79 (2016) 1, 14–19 identifying the general trajectories of subsidiarity in global governance. 11 A. Mowbray, Subsidiarity and the European Convention on Human Rights , Human Rights Law Review, 15 (2015) ; A. Von Staden, The Democratic Legitimacy of Judicial Review Beyond the State: Normative Subsidiarity and Judicial Standards of Review , International Journal of Constitutional Law, 10 (2012) 1023, 1039. 12 See Besson, Subsidiarity in International Human Rights Law , -79. 13 S.A.S. v France, Application No 43835/11, Merits and Just Satisfaction, 1 July 2014, para. 129; also Besson, Subsidiarity in International Human Rights Law , – 96. 14 J. Contesse, Contestation and Deference in the Inter-American Human Rights System , Law & Contemporary Problems 79 (2016) 123, 145. 15 D. McGoldrick, A Defence of the Margin of Appreciation and an Argument for its Application by The Human Rights Committee , International and Comparative Law Quarterly 65 (2016) 21, 59. 16 McGoldrick, A Defence of the Margin of Appreciation , . 17 Contesse, Contestation and Deference , ; L. Marsteintredet, The Inter-American Court of Human Rights and the mobilisation of parliaments , in this volume ; also A. von Staden, Subsidiarity, Exhaustion of Domestic Remedies, and The Margin of Appreciation in the Human Rights Jurisprudence of African Sub-Regional Courts , The International Journal of Human Rights (2016, forthcoming). 18 See also N. Roughan, Authorities. Conflicts, Cooperation, and Transnational Legal Theory (OUP, 2013) 138 arguing that legitimate authority depends upon appropriate inter-authority relationships. 4 attributes that the local level is expected to possess.19 This corresponds with the negative side of subsidiarity.20 The other side of subsidiarity is positive and directs the higher level to use its powers to advance the capacity of the local level to realise the goals for which the higher level was established.21 Positive subsidiarity is associated with a justification for a strong, prescriptive interventionist stance from the higher level.22 Positive subsidiarity can also be subtler and involve the higher level optimizing its practices to advance the capacities of the lower level.23 This latter perspective has been brought into focus in Matthew Saul s chapter assessing why and in what ways the IHRJ might promote the human rights role of parliaments. Saul draws on the literature on the functioning of parliaments to argue that through coordination of small adjustments in its practices, the IHRJ could help to advance the performance of parliaments on human rights. The term supportive subsidiarity is used here to distinguish this subtler perspective from other forms of positive subsidiarity.24 To implement supportive subsidiarity requires the IHRJ to be attentive to opportunities they have to calibrate their practices to advance rather than detract from the human rights functions of parliaments. It requires the IHRJ to consider what underpins decision-making on human rights within states across the three branches of government. It requires the IHRJ to move beyond assuming that parliaments have certain qualities and that these are being exercised in an optimal manner for the protection and realization of human rights.25 Sensitivity to the variety in the contexts See J. Gerards, Pluralism, Deference and the Margin of Appreciation Doctrine , European Law Journal, 17 (2011), 80, 87; Besson, Subsidiarity in International Human Rights Law , . 20 A. Follesdal, Subsidiarity , Journal of Political Philosophy, 6 (1998) 190, 195. 21 P. Carozza, Subsidiarity as a Structural Principle of International Human Rights Law , American Journal of International Law, 97 (2003) 38, 44 and 76; consider also the strong and weak distinction, M. Jachtenfuchs and N. Krisch, Subsidiarity in Global Governance , . 22 Follesdal, Subsidiarity , ; see also L. R. Helfer, Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime , European Journal of International Law, 19 (2008), 125, 149. 23 Helfer s principle of embeddedness can be read to include the range of degrees of positive subsidiarity, but his principle is articulated as the counterpoint rather than another side to subsidiarity, Helfer, ibid., 130, 149 and 159; see similarly without the language of subsidiarity and a focus on subtler methods J. L. Cavallaro and S.E. Brewer Reevaluating Regional Human Rights Litigation In The Twenty-First Century: The Case Of The Inter-American Court , American Journal of International Law, 102 (2008), 768, 777. 24 Thanks to Andreas Follesdal for suggesting this terminology; note also the different ways in which positive and negative subsidiarity terms are used in the literature, see Besson, Subsidiarity in International Human Rights Law , 93. 25 See also the call for disaggregation of legislative and judicial processes, K. Roach, The Varied Roles of Courts and Legislatures in Rights Protection , in M. Hunt, H. J. Hooper, and P. Yowell eds. , Parliament and Human Rights: Redressing the Democratic Deficit (Hart, 2015), p. 405, 407 – 08. 19 5 that the IHRJ encounters is also required.26 Yet supportive subsidiarity is facilitated to the extent that there is agreement as to the form and content of the human rights role of parliaments across states, which can serve as a reference point for the development and coordination of IHRJ practices. Chapters within this volume have added to an emerging concept of the human rights role of parliaments.27 3. What should be the role of parliaments to realise human rights in a transnational separation of powers? The work of the Parliamentary Assembly of the Council of Europe (PACE) has been an important reference point for this volume. 28 One of the key PACE documents on the human rights role of parliaments is Resolution 1823 (2011). This resolution, based on a survey of Council of Europe (CoE) states, recognises that [parliaments] are key to the effective implementation of international human rights norms at national level [including judgments of the ECtHR] . It further specifies that parliaments: fulfil their duty to protect human rights through legislating (including the vetting of draft legislation), involvement in the ratification of international human rights treaties, holding the executive to account, liaising with national human rights institutions and fostering the creation of a pervasive human rights culture. 29 This general specification of parliaments human rights role emerges from a survey of Council of Europe states. The diverse range of institutional and political contexts within the CoE increases the prospects that the work of the PACE will resonate more generally.30 See also Cavallaro and Brewer Reevaluating Regional Human Rights Litigation , 777. A concept of constitutional theory captures the important features of the phenomena under consideration, but does not attempt to encompass all the many and various concepts of the phenomena that exist within our community , N. Barber, The Constitutional State (OUP, 2010) p. 4. 28 See especially in this volume K. Roberts Lyer and P. Webb, Effective Parliamentary Oversight of Human Rights ; A. Donald, Parliaments as Compliance Partners in the European Convention on Human Rights System ; and M. Saul, How and When can the International Human Rights Judiciary Promote the Human Rights Role of National Parliaments? 29 PACE Resolution 1823 (2011), para. 2. 30 Roberts Lyer and Webb, Effective Parliamentary Oversight of Human Rights , p. xxx. 26 27 6 Additional components for the general definition of the human rights role of parliaments have been highlighted in Saul s chapter. As the foundation of the authority of parliaments is democratic in nature, the engagement of parliaments with rights based issues should bring democratic qualities, such as representation, participation, and deliberation to bear. Moreover, as parliaments are obligated by international human rights treaties, engagement with rights should involve interpretation and reasoning on the basis of the law.31 Democratic practices are an important source of meaning for international human rights law.32 The potential for the political and legal perspectives thus specified to conflict is returned to below in discussion on how the IHRJ should respond when relations between the IHRJ and national parliaments have deteriorated. The details of the human rights role of parliament will vary from state to state and from issue to issue, as different responsibilities and powers relevant for human rights are afforded, developed, and acted upon in different political and institutional contexts.33 Still, the background report to PACE Resolution 1823 shows that certain activities and institutional arrangements are starting to become associated with the human rights role of parliaments.34 For instance, drawing on a survey of practices found in the states of the CoE, the function of holding the executive to account is further specified as: receiving regular reports from the executive on its activities, asking ministers questions, setting up special committees and organizing field visits to carry out enquiries into executive conduct and propose remedial action. 35 The background report to PACE Resolution 1823 also highlights institutional steps for See also Donald, Parliaments as compliance partners querying what approach to interpretation is reasonable to expect in the light of uneven resources across parliaments p. xxx; also on expectations for human rights reasoning in the parliamentary context, see R. Ekins, Legislating Proportionately , in G. Huscroft, B.W. Miller and G. Webber eds. Proportionality and the Rule of Law: Rights, Justification, Reasoning, (Cambridge University Press, 2014),p. 343, 366, ; L. Lazarus and N. Simonsen, Judicial Review and Parliamentary Debate: Enriching the Doctrine of Due Deference , in M. Hunt, H.J. Hooper, and P. Yowell eds. , Parliaments and Human Rights: Redressing the Democratic ; Roach, The Varied Roles of Courts and Legislatures , -11. Deficit, (Oxford: Hart, 2015), p. 385, 394– 32 See A. Sathanapally, Beyond Disagreement: Open Remedies in Human Rights Adjudication (OUP, 2012) p. 70, 76; J. Mayerfield, The Democratic Legitimacy of International Human Rights Law , Ind. Int'l & Comp. L. Rev, 19 (2009), 49, 86. 33 See Saul, How and When can the International Human Rights Judiciary Promote ; also more generally L.W. Martin and G .Vanberg, Parliaments and Coalitions: The Role of Legislative Institutions in Multiparty Governance (OUP, 2011) 34 C. Pourgourides, National parliaments: guarantors of human rights in Europe , PACE Report, Doc. , June 2011. 35 Pourgourides, National parliaments: guarantors of human rights in Europe , para. . 31 7 enhancing the capacity of parliaments to work with human rights. A number of parliaments have a standing human rights mechanism.36 Alice Donald s chapter in this volume has provided details on the variable nature of the mandates and performance of these bodies.37 The emerging best practice postulate is not just for parliaments to have a standing human rights mechanism, but to have one that is effective. This has been the focus of Kirsten Roberts Lyer and Philippa Webb s chapter. In their chapter, Roberts Lyer and Webb identify a standing human rights mechanism as valuable in its own right for its role as focal site in parliament for human rights issues; undertaking detailed human rights assessment of proposed legislation, for example.38 They also recognise that the mechanism can serve to enhance the overall interest and engagement of parliament on rights issues; for instance through the reports that are generated and distributed.39 Roberts Lyer and Webb articulate a model for assessing the effectiveness of oversight mechanisms.40 Their model stresses the importance of goals, legitimacy and the interests of multiple-constituencies as considerations that should structure assessments. A possible indicator of the legitimacy of a mechanism is its level of engagement with both technical expertise and the citizenry.41 It can, though, be a challenge for a parliamentary mechanism that is intended to have oversight on matters from a legal perspective, to find the right balance between the two types of input.42 This point is connected to how we view the nature of parliamentary decision-making. Dimitrios Kyritsis has argued that the institutional circumstances of parliaments should be central to how we understand the normative context in which their decision-making Pourgourides, National parliaments: guarantors of human rights in Europe , para. , paras. – 29. Donald, Parliaments as compliance partners , p. xxx. 38 Roberts Lyer and Webb, Effective Parliamentary Oversight of Human Rights , p. xxx. 39 Roberts Lyer and Webb, Effective Parliamentary Oversight of Human Rights , p xxx; Donald, Parliaments as compliance partners p xxx; see also P. Yowell, The Impact of the Joint Committee on Human Rights on Legislative Deliberation , in M. Hunt, H. Hooper and P. Yowell eds. , Parliaments and Human Rights: Redressing the Democratic Deficit, (Hart, 2015), p.141, 158, 160. 40 Roberts Lyer and Webb, Effective Parliamentary Oversight of Human Rights , p xxx. 41 Roberts Lyer and Webb, Effective Parliamentary Oversight of Human Rights , p xxx. 42 D. Kinley, Finding and Filling the Democratic Deficit in Human Rights , in M. Hunt, H. Hooper and P. Yowell eds. , Parliaments and Human Rights: Redressing the Democratic Deficit, (Hart, 2015), 29, 36; see also J. Steiner, The Foundations of Deliberative Democracy: Empirical Research and Normative Implications (CUP 2012) p. 34; L. Thompson, Making British Law: Committees in Action (Palgrave Macmillan, 2015) chapter 6. 36 37 8 is undertaken.43 Parliamentarians are accountable to the electorate. This incentivizes them to take into consideration the views of the citizenry.44 It does not make them a mere conduit for public opinion. Kyritsis points to the deliberative distance that the electoral cycle creates: issues will arise in the period between elections on which voters had no opportunity to reflect before the elections or currently have no unambiguous view .45 This necessitates that, to discharge their institutional duty, parliamentarians must deliberate and come to their own view as to what should be done at a distance from their constituents.46 Kyritsis institutional reasoning helps to explain why decision making of democratically elected parliaments will not necessarily lead to positions on rights that simply favour the interests of the majority.47 Yet both the type of argumentation,48 and the nature of the information underpinning a decision making process may have a bearing. Consider the French ban on the use of clothing designed to conceal one s face in public places, addressed by the ECtHR in S.A.S v France.49 In this instance, a key source of knowledge generation, the parliamentary commission that preceded the adoption of the bill had not planned to hear a single woman who actually wore a face veil . . . [and] [t]he only person whom they did interview who wore a face veil, Kenza Drider, was only heard upon her own request .50 This underscores the potential value of the IHRJ attending to the quality of legislative processes as well as outcomes, as a means of incentivizing improvements. Such a contribution depends though on which elements of a process are valued. In S.A.S v France, the overall nature of the democratic process arguably informed the judgment in favour of France.51 Yet the ECtHR did not address the quality of the consultative procedure of the parliamentary commission,52 and it only Kyritsis, Constitutional Review , - 303; also, D. Kyritsis, The joint activity of rights protection: Going supranational , paper delivered at The International Human Rights Judiciary and National Parliaments workshop, November 2015, Middlesex University (on file). 44 Kyritsis, Constitutional Review , 307, 312. 45 Kyritsis, Constitutional Review , 308 46 Kyritsis, Constitutional Review , 308, 312 47 See also R. Bellamy, Political Constitutionalism (CUP, 2007) p. 241; see further Lazarus and N. Simonsen, Judicial Review and Parliamentary Debate , 395. 48 Roach, The Varied Roles of Courts and Legislatures , 417 – 18. 49 S.A.S v. France, Application No 43835/11, 1 July 2014. 50 E. Brems, Face Veil Bans in the European Court of Human Rights: The Importance of Empirical Findings Journal of Law and Policy , ; compare with Yowell, The Impact of the Joint Committee on Human Rights , 163. 51 See M. Saul, The European Court of Human Rights Margin of Appreciation and the Processes of National Parliaments , Human Rights Law Review, 15 (2015), 745–74, 757. 52 The point had been raised in amicus curiae, S.A.S. v. France, Application no. 43835/11, Written Submission by the Human Rights Centre of Ghent University, p. 6 (available at www.strasbourgobservers.com). 43 9 briefly mentioned concerns that had been raised about the tone of the legislative debate.53 Jurg Steiner s chapter has highlighted the importance of parliamentarians having access to the views of all the parties that will be affected,54 but also the value in capturing these views in a manner that is conducive to the realization of democratic legitimacy. Steiner s work draws on examples of organised discussions between parties with reasons to disagree with one another on issues connected to human rights. Steiner highlights the benefits that can come from a deliberative approach to knowledge generation for those involved, such as ownership of issues and changes in relations to other individuals affected by the same issue in different ways. This argumentation links well with the idea of parliaments human rights role including opinion forming amongst the citizenry.55 It also links with broader calls for parliaments to do more to develop connections with citizens as a means to build trust.56 There is therefore reason to consider this sort of activity – active engagement with the citizenry beyond simple consultation – as a potential component of a human rights oversight mechanism.57 This discussion should include attention to the challenges that Steiner identifies, such as the scope for manipulation of the process, and the need for sufficient resources.58 In sum, an abstract image of the human rights role of a parliament is emerging from the CoE context. This image could resonate more widely. It includes functions, such as examining legislation from a rights perspective, and modes of operation, such as, employing inclusive and deliberative practices. There is also debate around best practices for parliaments from a human rights perspective, such as establishment of a standing human rights committee and engagement with the citizenry. The details of 53 S.A.S. v. France, para. 149. On the longstanding challenge of information overload, see, M. P. C. M. van Schendelen , Information and Decision Making in the Dutch Parliament , Legislative Studies Quarterly, 1 (1976), 231, 246. 55 PACE Resolution 1823 (2011) para. 2. 56 C. Leston-Banderia, Parliaments Endless Pursuit of Trust: Re-focusing on Symbolic Representation , in C. LestonBanderia (ed.), Parliaments and Citizens (Routledge, 2013) p. 250, 261. 57 More study of the public engagement role of parliaments is required; see C. Leston-Bandeira, Why symbolic Representation Frames Parliamentary Public Engagement , The British Journal of Politics and International Relations (2016) 498, 499; connecting micro and macro level deliberations is challenging, see E. D.H. Olsen and H-J Trenz, The Micro–Macro Link in Deliberative Polling: Science or Politics? , Critical Review of International Social and Political Philosophy and Social Criticism, 19 (2016), 662. 58 On resource challenges, see Lord Lisvane, Foreword , in A. Horne and A. Le Sueur (eds.), Parliament: Legislation and Accountability Hart, v, vii; Donald, Parliaments as compliance partners , p. xxx. 54 10 when and in what manner such practices will be suitable or possible remain under specified and heavily dependent on context. Still, this basic image of the human rights role of parliaments and the debate on best practices could be a useful reference point for IHRJ institutions. It could help the IHRJ to implement a supportive notion of subsidiarity: to develop and deploy strategies for connecting with national parliaments that complement and foster the role of parliaments in the protection and realisation of rights. It is with these thoughts in mind that we now turn to the nature of the points of connection between the IHRJ and national parliaments. 4. How might the IHRJ adjust its procedural practices to best help parliaments realise human rights? The IHRJ connects with national parliaments in a variety of ways. This volume has studied both procedural and evaluative sets of connections. Individual chapters have brought to light various ways in which specific points of connection might be subject to adjustment by the IHRJ. This section concentrates on procedural connections found in the course of contentious cases, reporting procedures, and advisory opinions.59 The next section considers several different types of evaluative connection. 4.1. Contentious cases The procedural aspects of contentious cases vary across IHRJ institutions.60 In all instances it is the executive that represents the respondent state.61 The potential for direct parliamentary involvement is limited.62 This does not correlate well with the significant role that the IHRJ should expect parliaments to have in the implementation of its outputs.63 It also weakens the potential for decisions of the IHRJ to serve as external See also A. Nollkaemper, International Adjudication of Global Public Goods: The Intersection of Substance and Procedure , European Journal of International Law, 23 (2012), 769, on the justification and potential for international courts to adjust their procedures to accommodate the particularities of disputes concerned with public goods such as human rights. 60 See A. Donald and P. Leach, Parliaments and the European Court of Human Rights (Oxford University Press, 2016) p. 124. 61 See also C. Hillebrecht, Domestic Politics and International Human Rights Tribunals: The Problem of Compliance (CUP, 2014) p. 17. 62 Parliamentarians can bring cases, see e.g., Karácsony and Others v. Hungary, Application no. 42461/13, Second Section, 16 September 2014. 63 Donald, Parliaments as compliance partners p. xxx. 59 11 sources of information capable of enhancing the deliberative quality of parliamentary debates.64 One possibility for greater parliamentary involvement in contentious cases, which is not addressed elsewhere in this volume, is for parliamentarians to make a submission to the IHRJ as amicus curiae.65 At the ECtHR, submission of amicus curiae briefs by parliamentarians does not seem to be a common occurrence.66 There is discretion as to which briefs are accepted and a lack of transparency around the grounds; briefs can be rejected without an accessible public record.67 One example of an accepted parliamentarian brief is found in the recent case of Parillo v. Italy.68 In this case, concerning a ban on donating embryos conceived through medically assisted reproduction to scientific research, 46 members of the Italian parliament in combination with other organisations made a written submission to help the Court in its deliberations.69 The parliamentarians addressed the meaning of private life under Article 8 of the ECHR and provided a view querying the justifiability of the government s interference with this right.70 An IHRJ institution might be reluctant to encourage amicus curiae submissions from parliamentarians for risk of politicising a case (generating factual arguments not addressed by the parties). Yet they may be an especially useful source of information where the executive only provides limited details of a relevant parliamentary process (as in Parrillo). Moreover, the process of preparing a submission is a route to generate interest in the workings of the IHRJ amongst parliamentarians. Developing guidance as to when submissions from members of parliament are most useful could help to harness this procedural connection. See Sathanapally, Beyond Disagreement, p. 69. See generally N. Bürli, Amicus Curiae as a Means to Reinforce the Legitimacy of the European Court of Human Rights , in S. Flogaitis, T. Zwart, and J. Fraser, The European Court of Human Rights and its Discontents (Edward Elgar, 2013) p. 135. 66 Bürli s survey of the practice at the ECtHR mentions only NGOs, business associations, companies, and international organisations, Bürli, Amicus Curiae , p. . 67 Bürli, Amicus Curiae , p. . 68 Parrillo v. Italy, Application No. 46470/11, 27 August 2015. 69 Parrillo v. Italy, para. 9. 70 Parrillo v. Italy, para. 145. 64 65 12 4.2 Reporting procedures Monitoring human rights through state reporting is an additional means by which certain institutions of the IHRJ can connect with parliaments.71 However, Jasper Krommendijk s review of UN human rights treaty body practice has found a lack of systematic involvement of parliaments. Krommendijk highlights practice from the Netherlands, Finland, and New Zealand in relation to the six oldest UN human rights treaty bodies.72 Picking out practice concerning the preparation of reports, meetings between states and treaty body members, and implementation of the concluding observations (COs), Krommendijk shows the limited involvement of parliaments in all three stages of reporting has been of an ad hoc nature. For instance, the Maori Party sent an alternative report on New Zealand to the Committee on the Elimination of Racial Discrimination (CERD),73 MPs from the Constitutional Law Committee in Finland have been part of the delegation to several treaty body sessions,74 and parliamentary debates have been held to debate the COs from the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) Committee in the Netherlands.75 Such instances have the potential to increase knowledge and awareness of the outputs of the treaty bodies amongst parliamentarians.76 This can in turn improve the prospects that COs will be used as the basis for parliamentary action.77 Greater parliamentary involvement in reporting also has the potential to enhance the quality of the COs, through contributing to the treaty body s understanding of the local context. 71 All ten UN human rights treaty bodies, with the exception of the Subcommittee on Prevention of Torture, receive periodic reports from states parties addressing how they are applying the treaty provisions, see OHCHR, The United Nations Human Rights Treaty System, Fact Sheet No. 30/Rev.1 (United Nations, 2012) p. 21. 72 J. Krommendijk, Parliaments in the reporting procedures under UN human rights treaties , paper delivered at the International Human Rights Judiciary and National Parliaments workshop, March 2015, Oslo (on file); generally J. Krommendijk, The Impact and Effectiveness of the Recommendations of the UN Human Rights Treaty Bodies in the Netherlands, New Zealand and Finland (Intersentia, 2015). 73 J. Krommendijk, The Impact and Effectiveness of the Recommendations of the UN Human Rights Treaty Bodies , p. 287. 74 Krommendijk, ibid., p. 323. 75 Krommendijk, ibid., p. 168. 76 Krommendijk, ibid., p. 327. 77 For instance, the proposal for an amendment to Law of Names in the Netherlands on the basis of COs from the CEDAW Committee, Krommendijk, ibid., p. 185 – 186. 13 To identify ways in which COs can be used to promote the role of parliaments, Saul s chapter has reviewed recent COs from the CEDAW Committee and the Committee on the Rights of the Child (CRC Committee). He finds that the CEDAW Committee has introduced a standard paragraph into its COs addressing parliamentary involvement in implementation of the recommendations. This paragraph is used to call for the government to encourage parliamentary involvement,78 and sometimes to encourage the parliament to become involved.79 It also occurs that reference is made to the importance of involving parliament in the preparation of reports.80 The CRC Committee also calls for the involvement of parliaments in implementation and in the preparation of reports, but this is a more ad hoc practice. The relevant recommendations are often limited to requesting that the COs be disseminated to relevant branches of the state, including parliament.81 Coordination across treaty bodies on how they encourage parliamentary involvement is one way to enhance the impact of these recommendations. Parliamentary involvement in state reporting may also generate challenges. The involvement of an extra set of actors has the potential to further delay the delivery of reports to the treaty bodies. And if recommendations are to be fully considered by parliaments, this will also generate resource-based issues. As such, the focus should not only be on encouraging parliamentary involvement in state reporting but also on mechanisms for effective involvement. A sufficiently resourced, standing human rights mechanism might coordinate a parliament s contribution to reporting procedures. Reducing the number of recommendations from each treaty body, as called for in GA Resolution 68/268 (2014), could also aid fuller parliamentary engagement with outputs. 4.3 Advisory opinions See, e.g., UK, CEDAW/C/GBR/CO/7, 30 July 2013, para. 9. E.g., Denmark, CEDAW/C/DNK/CO/8, 11 March 2015. 80 E.g., Hungary, CEDAW/C/HUN/CO/7-8, 1 March 2013. 81 E.g., UK, CRC/C/OPSC/GBR/CO/1, 8 July 2014, para. 44. 78 79 14 A third modality to connect the IHRJ to national parliaments is the advisory opinion. The IACtHR has this capacity and is relatively permissive with both the scope of its jurisdiction and rules of procedure.82 It is open to an Organisation of American States (OAS) member state to request an opinion from the IACtHR on interpretation of the American Convention on Human Rights or other treaties concerning the protection of human rights in the American States and compatibility of its domestic laws with these treaties.83 It is expected that it will be the executive as the state s representative that initiates the procedure and serves as the main interlocutor. It is, though, as Leiv Marsteintredet s chapter has highlighted, possible for parliamentarians to be invited to proceedings as interested parties.84 The involvement of parliamentarians is especially relevant when the request for an opinion concerns draft legislation. It can help the IACtHR ensure that its opinion is well informed of the relevant circumstances.85 It also offers a route to raise awareness and develop compliance partners amongst parliamentarians. Marsteintredet s chapter also raises the question of whether parliaments should also be able to request advisory opinions. This happened prior to the opinion on Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, when a committee of the Costa Rican legislative assembly made a request, but the Court was not seized of the matter until the Minister of Foreign Affairs filed a formal request.86 Marsteintredet argues in favour of such an amendment to the American Convention on Human Rights, that it can strengthen the human rights role of parliaments in circumstances of hyper-presidentialism. But Marsteintredet also notes that it could risk the IACtHR being overly implicated in political battles at the domestic level.87 There 82 Note with Protocol 16 the advisory jurisdiction of the European Court of Human Rights (ECtHR) will be extended to allow highest national courts to request opinions on the interpretation of the ECHR; presently advisory jurisdiction is limited to a request from the Committee of Ministers under Protocol , see K. Dzehtsiarou, and N. O Meara, Advisory jurisdiction and the European Court of Human Rights: a magic bullet for dialogue and docket-control? , Legal Studies, 34 (2014), 444. 83 American Convention on Human Rights, Article 64; Rules of Procedure, Articles 70 – 72. 84 Marsteintredet, The Inter-American Court of Human Rights , p xxx; see also J. M. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (CUP, 2014) p. 75. 85 On occasion the Court has refused to offer an opinion so as not to become involved in partisan politics, Pasqualucci, Practice and Procedure, p. 59. 86 Pasqualucci, Practice and Procedure p. 41. 87 See also Pasqualucci, Practice and Procedure, p. ; Cavallaro and Brewer Reevaluating Regional Human Rights Litigation , 776. 15 could also be a floodgate type fear.88 These concerns should not exclude the possibility, but point to the need for limiting criteria. Marsteintredet proposes requiring a qualified majority before parliament is able to request an opinion. The first step would be to have states parties discussing the idea. 4.4 Summary In sum, there are possibilities for developing better procedural connections between the IHRJ and parliaments. This could be a route to enhance awareness amongst parliamentarians of the international human rights system. But challenges also emerge. In particular, there are workload implications for both the IHRJ and parliaments. This indicates the importance of thorough reflection on any moves by the IHRJ to increase the procedural role of parliaments.89 Points for further consideration include criteria for transparent decision-making on when parliaments might serve as amicus curiae in contentious cases; for parliamentary involvement in reporting processes that is sensitive to available resources; and guidelines for when parliaments might request advisory opinions. Executives will remain the main interlocutors with the IHRJ. The main responsibility for developing a greater role for parliament in the procedures of the IHRJ will therefore remain with the executives. Alas, although states in the CoE context have committed to greater steps to empower parliaments e.g. by sharing information, Donald reminds us that too few governments have yet acted upon this [commitment] .90 Moreover, parliamentarians need to have the capacity and to be interested in taking opportunities for engaging in procedures. This can be facilitated through the executive making available sufficient legal advisers.91 It is also a reason why the scope for informal See Pasqualucci, Practice and Procedure, p. 46. See also Hillebrecht, Domestic Politics, p. 23 recognising that political competition within parliaments can complicate relations between the executive branch and international tribunals. 90 Donald, Parliaments as compliance partners p. xxx, referring to Brussels Declaration, Implementation of the European Convention on Human Rights, Our Shared Responsibility , March , para B.2.h. 91 Murray Hunt, Legal Adviser to the UK Parliament s JCHR, highlighted the importance of this point in his presentation on, The role of parliamentary legal services as mediators between the international judiciary and national parliamentarians , at The International Human Rights Judiciary and National Parliaments workshop, November 2015, Middlesex University. 88 89 16 interactions between the IHRJ and domestic parliaments, such as study visits,92 should also be explored.93 Change towards greater parliamentary involvement in the procedures of the IHRJ will likely be gradual, but other routes by which the IHRJ may influence the human rights role of parliaments should also be considered. 5. How might the IHRJ s evaluative practices best help parliaments realise human rights? The IHRJ connects to the human right role of parliaments indirectly through several modalities that are evaluative in the sense that the IHRJ has a degree of discretion in its practice. How this discretion is used in at least three areas might facilitate or hinder advancement of the human rights role of parliaments: interpretation of norms, explanation of the level of deference, and specification of remedies. 5.1 Interpretation The IHRJ institutions are interpretative authorities with regard to the meaning of their foundational treaties, which parliaments are obligated to apply.94 The Vienna Convention on the Law of Treaties guides the interpretive practice of the IHRJ. The guidance therein is broad and open to refinement in light of the particular nature of a treaty.95 In particular, the IHRJ s practice may help to clarify and develop the normative parameters within which a parliament operates.96 Some interpretative approaches of Donald, Parliaments as compliance partners , p. xxx. Whether parliaments currently have a sufficient role in the establishment and development of human rights treaty regimes might also be considered, see A. Lang, Parliament and International Treaties , A. Horne and A. Le Sueur (eds.), Parliament: Legislation and Accountability (Hart, 2016), p. 241, 252 – 254. 94 Çalı, The Legitimacy of International Interpretive Authorities , p. ; also Case Concerning Ahmadou Sadio Diallo , para. ; Pourgourides, National parliaments: guarantors of human rights in Europe para. . 95 For an overview of the common ground and variations in the interpretative practices of the different bodies, see M. Fitzmaurice, Interpretation of Human Rights Treaties , in D. Shelton ed. , The Oxford Handbook of International Human Rights Law (OUP, 2013) p. 739, 753 – ; see also G. Neuman, Import, Export, and Regional Consent in the Inter-American Court of Human Rights , European Journal of International Law, 19 (2008), 101, 107. 96 See also J. Hiebert and J. Kelly, Parliamentary Bills of Rights: The Experiences of New Zealand and the United CUP p. referring to the accumulated ways in which judicial rulings more generally influence Kingdom political and societal debates over time ; also Roach, The Varied Roles of Courts and Legislatures , 416. 92 93 17 the IHRJ might facilitate the human rights role of parliaments. Marsteintredet s and Squatrito s chapters are illuminating. Marsteintredet s chapter draws on Alter s conceptualisation of the interpretations of international legal norms by international courts as generating circles of discursive space within domestic politics, which vary in size according to the level of precision.97 Marsteintredet s discussion concerns the IACtHR and reactions to the outcome of cases in general, but the general argument is pertinent for interpretation by other institutions of the IHRJ. Marsteindredet highlights the value of a larger circle as allowing space for parliaments to deliberate and develop their own solutions for issues. This in turn can encourage parliaments to become allies rather than resistors against the international institution.98 Parliamentary deliberation on how to implement the judgments and opinions of the IHRJ arguably adds democratic legitimacy to the eventual outcomes.99 Such effects may support a strategy of less precision by the IHRJ concerning the meaning of a norm, as beneficial for the human rights role of parliament. Squatrito s chapter requires us to specify this conclusion further. She studied the interpretative practice of three parliaments in Europe (France, Germany, and the UK), and argues that a high level of precision in the interpretation of a norm is central to it having resonance. Squatrito s analysis suggests that where there is a lack of precision and an absence of civil society advocacy for a particular interpretation, parliaments will be less likely to address the law and where they do they will be unlikely to use discretion to develop a more demanding standard.100 Taken together, Marsteintredet s and Squatrito s chapters provide a lesson for the IHRJ institutions if they are to foster the human rights role of parliament by their K.J. Alter, The New Terrain of International Law (Courts, Politics, Rights) (CUP, 2014) p. 47. Marsteintredet, The Inter-American Court of Human Rights , p xxx. 99 See also Donald, Parliaments as compliance partners , p. xxx; Carozza, Subsidiarity as a Structural Principle , p ; J. Mayerfield, The Democratic Legitimacy of International Human Rights Law , -86. 100 See T. Squatrito, Parliamentary Interpretation and Application of European Human Rights Law , p. xxx discussing French Law nº 2007-297 of 5 March 2007. 97 98 18 interpretative practice. The institution should seek a level of precision that will make it difficult for the norm to be evaded, whilst also leaving space for parliament to contribute meaning to the norm in relation to the domestic context. This can be facilitated inter alia by regarding the IHRJ s interpretations as articulation of minimal rather than maximal standards.101 Amrei Müller s chapter has highlighted that the ECtHR does not consider the Convention to require states to comply with any theoretical constitutional concepts , including a theoretical concept of the separation of powers doctrine. 102 However, Müller s review of case law demonstrates that there is interpretative practice from the ECtHR that speaks to the respective roles of parliaments, domestic courts, and executives in the realisation of rights. 103 To illustrate, the ECtHR has recognized that domestic courts are obliged to apply the provisions of national law in the spirit of [ECHR] rights .104 The ECtHR has indicated that interferences with rights stemming from practices of secret surveillance and deprivation of liberty require particularly precise legislation and opportunities for strict review by domestic courts in order to be justified.105 The ECtHR has developed the meaning of the legality standard in the ECHR to require that parliaments ensure judicial safeguards are in place in instances where domestic law gives the executive discretionary powers to restrict Convention rights.106 101 See J. Christoffersen, Individual and Constitutional Justice: Can the Power Balance of Adjudication be Reversed? , in J. Christoffersen and M.R. Madsen (eds.), The European Court of Human Rights Between Law and Politics, (OUP, 2013) 181, 198. 102 A. Müller, Obligations to secure the rights of the Convention in an effective political democracy : How should parliaments and domestic courts interact? , p. xxx footnotes omitted ; see also Nicklinson and Lamb v. UK, Appl. Nos. 2478/15 and 1787/15, Decision (Chamber), 23 June 2015, para 84; T Altwicker, 'Convention Rights as Minimum Constitutional Guarantees?' in A. von Bogdandy and P Sonnevend (eds.), Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Hart, Oxford 2015) p. 331. 103 See also Saul, How and When can the International Human Rights Judiciary Promote , p. xxx, highlighting interpretative practice relevant for the working environment of parliaments. 104 Müller, Obligations to secure the rights of the Convention , p. xxx footnotes omitted . 105 Müller, ibid., p. xxx. 106 Müller, ibid., p. xxx. 19 Müller s chapter demonstrates the potential for the IHRJ to exert a greater influence on the domestic institutional architecture than might be expected from taking the judgments in isolation. Greater awareness of the linkages between otherwise distinct interpretative practices such as those highlighted by Müller can help the IHRJ to ensure that the cumulative effect is to the advantage of the human rights role of parliaments. Failure to attend to such linkages amongst the interpretative practices might lead over time to an unintended alteration in the domestic inter-institutional balance of authority in favour of domestic courts.107 The prospect that the cumulated interpretive practice of IHRJ will be more likely to empower domestic courts over parliaments is increased in contexts where the IHRJ views the domestic courts as their natural allies.108 5.2 Deference In applying the law to the facts of a case, the IHRJ may be required to determine the level of deference it will afford to the domestic authorities. Less deference equals closer scrutiny and a greater likelihood that the state will be found in violation of its obligations. The approach taken to deference has the potential to impact on the human rights role of parliaments in various ways. Both the level of deference and its justification can be relevant. It is common for domestic judicial bodies to defer to the political branches of government on certain issues, in light of their different status and role within the state. The external nature of the IHRJ, more distant from the context than the domestic actors, might sometimes generate an additional basis for deference.109 Inversely, even when a state has been found compliant with a human rights treaty at the international level, there can still be a need for a closer, more demanding level of scrutiny from domestic actors.110 One risk arising from the practice of deference by the IHRJ is that domestic actors might take a positive assessment from the IHRJ as a reason for no further scrutiny See D. Kosar and L. Lixinski, Domestic Judicial Design , , . See D. Kosar and L. Lixinski, Domestic Judicial Design , . 109 See G. Letsas, Two Concepts of the Margin of Appreciation Oxford Journal of Legal Studies, 26 (2006), 705, 721; also McGoldrick, A Defence of the Margin of Appreciation , . 110 See E. Bjorge, Domestic Application of the ECHR: Courts as Faithful Trustees (OUP, 2015) p. 200 – 201. 107 108 20 at the domestic level, even when the external nature of the IHRJ has led to a high level of deference and contributed to a positive evaluation. Colin Murray s chapter illustrates this point. Murray deals with the validity of the UK s derogations from the ECHR. Murray charts a correlation between the high level of discretion afforded by the ECtHR and the executive s notifications of derogation occasioning little in the way of scrutiny from the parliament. Other factors such as the political culture and the historically weaker position of UK courts on rights issues are also salient. Still, the explicit recognition by the ECtHR of the need for deference to the executive s assessment of the security threat is significant. It is part of the explanation for why the executive was historically not subject to more scrutiny on matters of derogation from both the parliament and the domestic courts.111 The ECtHR s deference served to disempower rather than empower parliament, appearing to signal that other domestic actors should also defer to the same degree as the ECtHR. More recently, the ECtHR has started to place value in scrutiny by parliament as a basis for determining the level of deference in instances of derogation.112 This is a useful way to counter the risk that domestic actors treat deference from a body of the IHRJ as a sign for disengagement. Murray argues that this change, along with other constitutional changes in the UK – such as a requirement for parliament s consent for derogation under the Human Rights Act, s. 14 – have made derogation a much less attractive option for the UK.113 Deference must also be calibrated when the IHRJ is scrutinising the outcomes of parliaments law making. There is no clear answer as to whether a higher or lower level of deference will be most conducive to the advancement of the human rights role of parliaments.114 On the one hand, a high level of deference from the IHRJ might lead a C. R. G. Murray, Shifting Emergencies from the Political to the Legal Sphere: Placing the United Kingdom s Derogations from the ECHR in Historical Context , p. xxx. 112 Murray, Shifting Emergencies from the Political to the Legal Sphere , p. xxx. 113 Muray, Shifting Emergencies from the Political to the Legal Sphere , p. xxx; the IACtHR s approach to derogation has been stricter, see, B. Duhaime, Subsidiarity in the Americas. What room is there for Deference in the InterAmerican System? in L. Gruszcynski and W. Werner eds. Deference in International Courts and Tribunals: Standard of Review and Margin of Appreciation, (Oxford University Press, 2014) p. 290, 303 – 305. 114 See also A. L. Young, Is Dialogue Working under the Human Rights Act , Public Law (2011) 773, 796. 111 21 domestic court to the view that it is not its place to scrutinise a domestic parliament more closely. This could reduce the motivation for the parliament to ensure its legislation is human rights compliant. On the other hand, a low level of deference from the IHRJ could be read as demonstrating an insufficient level of respect for the domestic context or its democratic process. This could prompt resistance to the outputs of the IHRJ. It could also chill parliament s interest in the human rights aspects of legislation. These are all points that are raised in Marsteintredet s chapter in discussion of the practice of the IACtHR. In contrast with the ECtHR, the IACtHR has demonstrated much less willingness to defer to states.115 The question of what level of deference is optimal for advancing the human rights role of parliaments might be illuminated by the practice of the ECtHR of making the quality of parliament s engagement in the development of legislation a factor in the determination of the level of deference. With a process-orientated approach to deference, parliaments only benefit from greater deference when they have operated in a way that increases the prospects of a human rights compliant outcome.116 Saul s chapter has highlighted this as one of the central ways for the IHRJ to promote parliaments human rights role. It has the potential to be effective as an incentive for action from the parliament. But it also comes with a number of challenges. One challenge is that a parliament might interpret the practice of deference on the basis of process as a signal that the process is all that matters. Ed Bates raised this concern in his chapter examining circumstances surrounding the well-known Hirst (no. 2) v. UK case on prisoner voting. In this case, the ECtHR factored the lack of parliamentary attention to the legislative position under review into its reasoning. It was only one factor for the ECtHR, but Bates highlights the potential for it to be read as implying that Marsteintredet, The Inter-American Court of Human Rights , p xxx. See also E. Brems, The European Court of Human Rights and the Quality of Parliamentary Process , paper delivered at the International Human Rights Judiciary and National Parliaments workshop, March 2015, Oslo (on file). 115 116 22 had Parliament debated the matter, a margin of appreciation could have applied, and the arguments said to justify the ban could then have sufficed .117 Such a concern underlines the importance of an institution of the IHRJ being clear on the role that attention to parliamentary process has in its reasoning.118 A further challenge is how to determine the criteria to be used for evaluating the quality of a parliamentary process. Saul s chapter notes that the ECtHR s practice has been hazy on this point. On occasion, the ECtHR refers to the absence of evidence that the parliament has sought to weigh the competing interests or to assess the proportionality of the restriction as it stands. 119 Saul s closer look at the reasoning of the ECtHR, across a number of cases, shows an emerging framework of considerations that are open to be valued by the Court.120 These are argued to correspond with three key subsidiarity based grounds for deference: democracy, expertise, and policy environment. The development of a framework of activities and conduct that can be more or less relevant is one way of generating a degree of stability in the judicial reasoning, whilst adhering to the idea that the human rights role of parliaments will vary from state to state and from issue to issue. Its development relies upon clear specification from the IHRJ on which elements of parliamentary process are valued in the course of a case. To date, there is little evidence that a process-orientated approach to deference has been adopted beyond the ECtHR.121 Marsteintredet s chapter considers it as a possibility in the IACtHR context. Rising levels in the quality of democracy in the region call for a reassessment of how the IACtHR relates to national authorities. Marsteintredet recognises that the IACtHR will encounter parliamentary processes that seem to call for E. Bates, Democratic override (or rejection) and the authority of the Strasbourg Court: the UK Parliament and prisoner voting , p. xxx. 118 See M. Saul, Structuring Evaluations of Parliamentary Processes by the European Court of Human Rights , The International Journal of Human Rights (2016, forthcoming); also Lazarus and N. Simonsen, Judicial Review and Parliamentary Debate , . 119 Alajos Kiss v. Hungary, Application No. 38832/06, 20 May 2010, para. 41; see also Hirst v United Kingdom (No 2), Application No 74025/01, 6 October 2005, para. 79. 120 See also Donald and Leach, Parliaments and the European Court of Human Rights , p. 134 -40; A. Kavanagh, Proportionality and Parliamentary Debates: Exploring Some Forbidden Territory , Oxford Journal of Legal Studies, 34 (2014), 443, 472-8. 121 See A. Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (Oxford University Press, 2012) pp. 79 – 80, 85, 98. 117 23 little in the way of deference, such as the example from the Dominican Republic on its citizenship rules: The debates were dominated by xenophobia, nationalism and remarks on a supposed international conspiracy against the Dominican Republic. 122 The IACtHR could still nudge parliaments toward more human rights-oriented deliberations by making clear the conditions under which the Court could defer. And there could be a gradient in the level of deference awarded depending on the view of the process. Through using examples to specify its criteria for giving greater deference, the IACtHR can send more general signals. For Marsteintredet, this would have called for a different approach on the issue of the amnesty law in the Gelman v Uruaguay case.123 Marsteintredet cautions, though, that the introduction of such an approach will only make sense as part of a fuller realignment, which also includes how the issue of remedies is approached. We now turn to this issue of remedies. 5.3. Specification of remedies The status of judgments from the IHRJ within a domestic legal order is a matter for the state in question to regulate. It is a separate question from the binding nature of the judgments as a matter of international law. It is possible for domestic enabling legislation to make judgments of the IHRJ directly enforceable within domestic courts.124 It is also possible for compliance with judgments to be monitored by a mechanism at the international level. For the ECtHR, the Committee of Ministers has an important role.125 As Bates notes in his chapter, where political action is required for implementation of judgments from the IHRJ, this ultimately relies upon the cooperation and good faith of the national authorities concerned .126 This is an important part of the context that one would expect to inform the approach taken to specification of remedies by the IHRJ. Which strategies for specification of remedies may facilitate the human rights role of parliaments? 122 123 Marsteintredet, The Inter-American Court of Human Rights , p xxx. Caso Gelman v. Uruguay. In Serie C No. 221 (2011). R. Van Alebeek and A. Nollkaemper, The Legal Status of Decisions by Human Rights Treaty Bodies in National Law, in H. Keller and G. Ulfstein (eds.), UN Human Rights Treaty Bodies: Law and Legitimacy (CUP, 2012) p.356, 363-364; B. I. Bonafe, International Law in Domestic and Supranational Settings , in J. Kammerhofer and J. d Aspremont eds. , International Legal Positivism in a Post-Modern World (CUP, 2014) p. 378, 393. 125 See B. Çalı and A. Koch, Foxes Guarding the Foxes? The Peer Review of Human Rights Judgments by the Committee of Ministers of the Council of Europe , Human Rights Law Review, 14 (2014), 312. 126 Bates, Democratic override or rejection and the authority of the Strasbourg Court , p. xxx. 124 24 The outcomes of most cases that decide in favour of the applicant are directed at executive action.127 The level of detail in the specification of the remedy determines with what clarity the parliament is able to scrutinize the executive. More research is required to determine whether greater or lesser detail is more conducive to parliamentary scrutiny of the executive. Nino Tsereteli s chapter explores the theme of the level of detail in remedies in relation to judgments that require legislative action. In some cases it is evident from a judgment that legislation will be needed. Then there could be reason for the IHRJ to be less specific in its remedies, to leave space for the parliament to develop solutions.128 The IHRJ thus recognises the particular democratic legitimacy of the legislator;129 and the complexity of changes that can be required as part of the legislative process.130 Thus there is reason to welcome the general approach of the ECtHR as described in Tsereteli s chapter: the ECtHR finds a violation, and largely leaves it to the domestic authorities to determine how it should be rectified. In contrast, Marsteintredet describes the current approach in the IACtHR as making dictates.131 Marsteintredet would welcome a move towards a more flexible approach by the IACtHR to create opportunities for political learning. A risk is that judgments are not acted upon sufficiently. Tsereteli s chapter addresses how the ECtHR has responded when such circumstances have arisen. In such circumstances, the ECtHR has to make a series of choices: decide whether to suggest legislative measures or demand them imperatively, whether to issue detailed instructions regarding the exact content of laws or offer only limited guidance, whether to impose binding time limits for implementation or let the states decide on the time-frame. 132 Donald, Parliaments as compliance partners , p. xxx. See also Sathanapally, Beyond Disagreement, p. 28. 129 N. Tsereteli, The Role of the European Court of Human Rights in Facilitating Legislative Change in Cases of LongTerm Delays in Implementation , p. xxx. 130 Tsereteli, The Role of the European Court of Human Rights in Facilitating Legislative Change , p. xxx. 131 Marsteintredet, The Inter-American Court of Human Rights , p xxx; on UN treaty bodies and remedies, see Van Alebeek and Nollkaemper, The Legal Status of Decisions by Human Rights Treaty Bodies , . 132 Tsereteli, The Role of the European Court of Human Rights in Facilitating Legislative Change , p. xxx. 127 128 25 Tsereteli s chapter describes the range of approaches that the ECtHR has taken through its pilot judgments procedure. This includes cases with varying levels of prescription;133 cases in which the state has been permitted to set its own time limit;134 as well as one case in which the ECtHR called for the state to undertake wide public discussions.135 Tracing the consequences of approaches taken to the specification of remedies, Tsereteli shows the costs and benefits. Leaving very broad discretion to the state is not necessarily the best strategy to engage parliament: there should be a sufficient level of specification to motivate and shape that engagement.136 Where the balance should lie between prescription and discretion should be determined in light of the ability of national authorities to accomplish the task on their own and its own capacity to advise .137 Tsereteli considers this to largely be the case with the ECtHR in instances of failure to respond to initial judgments. The capacity and willingness of parliaments to undertake their human rights role can vary from issue to issue. A nuanced, contextual approach to the specification of remedies may thus be more productive to realise human rights, rather than a predefined minimalist or interventionist approach. Tsereteli s chapter provides an important starting point for working out which sort of approaches will suit particular situations. 5.4 Summary In sum, in the course of preparing a judgment, the IHRJ encounters national parliaments indirectly at several junctions. How the IHRJ manages each connection influences how a parliament undertakes its human rights role. The chapters of this book reveal no best plan for how the IHRJ should interpret norms, set and justify its level of deference, or specify its remedies, in order to best contribute to the human rights role of parliaments. Gerasimov and others v. the Russian Federation, Appl. no. 29920/05, 2553/05, 18876/10, 1 July 2014 para. 224 (less prescriptive); Neshkov and others v. Bulgaria, Appl. Nos 36925/10, 21487/12, 72893/12, 27 January 2015, paras. 282–284 (prescriptive). 134 Ananyev and others v. the Russian Federation, Appl. Nos. 42525/07 and 60800/08, 10 January 2012, para. 7; Varga and others v. Hungary, Appl. Nos 14097/12, 45135/12, 73712/12, 34001/13, 44055/13 and 64586/13, 10 March 2015, para. 112. 135 Sekerovic and Pasalic v. Bosnia and Herzegovina, Appl. No. 5920/04, 67396/09, 8 March 2011, para. 118. 136 Tsereteli The Role of the European Court of Human Rights in Facilitating Legislative Change , p. xxx. 137 Tsereteli The Role of the European Court of Human Rights in Facilitating Legislative Change , p. xxx. 133 26 On some occasions, there could be benefits from greater prescription and closer scrutiny, as a means of prompting and shaping action. On other occasions, a less invasive approach might be enough to prompt desirable action, whilst leaving space for democratic input. The IHRJ should be aware of the potential to affect human rights role of parliament, work towards an approach that is most conducive for the situation at hand, and link the different evaluative practices to facilitate the human rights role of parliaments. For example, if the level of deference in a case is based on the quality of deliberation, the specification of remedies might also be designed to favour parliamentary deliberation. Such coordination would also avoid the risk of sending conflicting signals, which could be a reason for resistance from national parliaments. We turn to this issue now. 6. What causes relations to breakdown and how should the IHRJ respond? The IHRJ depends on cooperation and good faith of domestic authorities for its effectiveness.138 Deterioration in relations is thus problematic for the effectiveness of the IHRJ. The significance of deterioration will vary depending on its nature. Interinstitutional disagreements are to be expected and can be productive.139 This section considers circumstances when the domestic parliament no longer cooperates with the international body, but resists it.140 Parliament questions whether the IHRJ has legitimate authority – whether its judgments should be followed or deferred to. The following discussion draws on chapters from the volume to provide insights as to what are potential causes of breakdown in relations between parliaments and the IHRJ; when, if ever, breakdown may be justified; and how the IHRJ might respond to circumstances of breakdown. 6.1 Causes of breakdown in relations See Alter, The New Terrain of International Law, p. 53 – 54. See J. Rawls, Justice as Fairness: A Restatement (Harvard University Press, 2001) p. 146. 140 Resistance might be chartered as a continuum, from light critique to backlash, C. R. Sunstein, Backlash s Travels , (2007) Public Law and Legal Theory Working Paper Series 1. 138 139 27 Donald s chapter on the role of parliaments as compliance partners for the ECtHR highlights that how a judgment is received depends on the interaction of factors inherent to the judgment. Important factors include the area of law or policy implicated. But Donald also notes the importance of a range of broader contextual considerations, such as prevailing social attitudes. From this perspective, it is unlikely that a single judgment could provide a complete explanation for a breakdown in relations between a parliament and an institution of the IHRJ. Other chapters that study particular instances of deterioration in relations support this point. Consider the prisoner-voting saga between the ECtHR and UK.141 The relatively extreme nature of the breakdown in relations, including challenges to the authority of the ECtHR, explains the close attention that its roots and evolution are given in Bates chapter. In examining the roots of the crisis, Bates highlights the significance of the broader political context in the UK. Bates underscores how the ECtHR has exercised and developed its powers of review, to the effect that parliaments perceive such review as at the expense rather than with the cooperation of national authorities.142 Bates also highlights how a perception of judicial overreach might arise more readily and be of greater concern in the UK, where there is the absence of an entrenched Bill of Rights, [and] reliance on the Westminster model , with its strong focus on parliamentary sovereignty in contrast to a state with a tradition for constitutional rights review, such as Germany.143 Such background considerations are essential to understand the breakdown surrounding the prisoner-voting saga. But they interact with other factors: the subject matter MPs are genuinely opposed to prisoner enfranchisement , the need for parliamentary engagement other recent controversies were resolved by executive action , and the boldness of the ECtHR s reasoning any blanket ban on convicted prisoners voting whilst in detention, could never come within a national margin of appreciation . All of See also Marsteintredet, The Inter-American Court of Human Rights , p xxx, addressing the breakdown in relations between the Dominican Republic and the IACtHR. 142 Bates, Democratic override (or rejection) and the authority of the Strasbourg Court , p. xxx. 143 Bates, Democratic override or rejection and the authority of the Strasbourg Court , p. xxx; see also R. Masterman, The United Kingdom , in P. Popelier, S. Lambrecht, K. Lemmens, eds. , Criticism of the European Court of Human Rights (Intersentia, p. ; J. Rackow, From Conflict to Cooperation: The Relationship Between Karlsruhe and Strasbourg , in K. S. Ziegler, E. Wicks, and L. Hodson eds. , The UK and European Human Rights: A Strained Relationship?, (Hart, 2015) p. 379. 141 28 these factors combine to explain the domestic resistance that the case has generated and the current stalemate in resolving the issue. Given several intersecting factors, should we develop a framework to help an institution of the IHRJ to reduce the risk of breakdown in relations? Donald argues that the inherent factors of a judgment and the contextual factors combine in unpredictable ways. Would it be possible, for instance, to foresee that S and Marper v the United Kingdom,144 would be so favourably and productively received within the UK parliament? This was an Article 8 (ECHR) case concerning the indefinite retention of biometric data of everyone arrested for a recordable offence. Donald s analysis of this impact indicates that anticipation is very difficult. An alternative course of action would be for the IHRJ to generally develop relationships of cooperation with parliaments. This would reduce the risk of one adverse decision having a profound detrimental impact.145 This could involve choosing carefully those judgments in which it is appropriate to take a bold, general position on an issue, when there is also scope for a nimbler more nuanced approach.146 6.2 When, if ever, is a breakdown in relations justified? In the prisoner-voting saga in the UK cooperation between the IHRJ and domestic authorities breaks down on a particular case. Members of the UK parliament have indicated that they are not prepared to accept the authority of the ECtHR on this particular issue. Yet it is a requirement of the ECHR system that states comply with judgments of the ECtHR. Thus a decision not to comply, especially by a state that usually complies with the judgments of the ECtHR, may affect the stability of the Convention system as a whole. But should parliaments always be expected to follow the legally binding judgments of the IHRJ?147 S and Marper v the United Kingdom, Appl. Nos. 30562/04 and 30566/04, Judgment (Grand Chamber), 4 December 2008. 145 The wells of support would be deeper, see Huneeus, Constitutional Lawyers , . 146 See Bates, Democratic override (or rejection) and the authority of the Strasbourg Court , p. xxx; benefits might also arise from a clearer signalling of when and the extent to which international human rights law gives rise to duties which require independent political agency at the domestic level, see B. Cali, Authority of International Law: Obedience, Respect and Rebuttal (OUP, 2015) p. 160 – 161. 147 C. O Cinneide, Saying No to Strasbourg: When Are National Parliaments Justified in Refusing to Give Effect to Judgments of International Human Rights Courts? , p. xxx proceeds on the basis that [l]egal formalism does not 144 29 Bates explores the issue by focusing on how events have unfolded in the context of the prisoner-voting saga. Bates highlights the realities of the system. Politicians are sure of their own democratic legitimacy. Thus, they feel that they are entitled to resist judgments of the IHRJ even when legally binding. When they do resist, there is little that the international system can offer in return. Parliamentarians should be aware, though, that if they resist this may undermine the system. Ultimately, Bates does not see the issues at stake in Hirst as ones that are worth risking the whole system. Bates call for the IHRJ to take seriously the democratic legitimacy of national parliaments can be read as a practical measure to help ensure that system threatening issues do not emerge. O Cinneide s starting point for determining whether non-compliance might be justifiable in certain circumstances is an analysis of the justifications that have been put forward in the debate on the authority of the strong IHRJ relative to democratic parliaments. O Cinneide identifies points which help to justify a strong IHRJ. These include firstly attempts to ameliorate through a prudential approach such as Bates call for the reasoning at the international level to take seriously democratic legitimacy. Secondly, a justification may rely on original consent; and thirdly, the international dimension of the IHRJ adds to domestic forms of rights protection. Taken together, these considerations provide a compelling case as to why states should maintain and help to develop the international human rights system. But they do not manage to fully extinguish the democratic critique. The prospect of justified resistance thus remains open, at least in theory. O Cinneide argues that the central reference point for identifying when parliamentary resistance to the IHRJ would be justified should be protection of democratic provide clear answers to the question of how states should behave when called upon to give effect to IHRC [international human rights courts] judgments of which they disapprove. ; it should be recalled that while parliaments are obligated to consider the outputs of quasi-judicial bodies in good faith, they are not legally obligated to comply. For quasi-judicial bodies of the IHRJ, the system has built in scope for a parliament to disagree and go its own way. Hence circumstances of non-compliance do not generate the same need to move beyond legal formalism for guidance as arises in relation to disagreement with the outputs of bodies with binding powers. 30 constitutionalism. A series of factors should be evaluated in the light of the circumstances surrounding a contested issue. First: states with an attenuated or purely nominal national democratic system, or whose legal system provides little if any effective protection for fundamental rights, will invariably struggle to justify disobeying Second, a tipping point will need to be reached. By its nature international law limits national freedom, therefore: national authorities will need to point to a more fundamental concern – which cuts to the core of what it means to be a self-governing state founded on the basis of popular sovereignty - before states will be able to credibly invoke their right to disobey . Third, this tipping point for opposing the IHRJ must be identified partly by the positive contribution they make to the development and maintenance of a healthy culture of democratic constitutionalism in the state concerned. Fourth, a decision to disobey must take account of the impact this will have on the overall functioning of the system, with particular attention to the implications for populations in other states where the international institution might have greater significance. Through these factors, O Cinneide shows that as a matter of normative theory, it is possible for an established democracy to justifiably disobey a legally binding output from the IHRJ. But O Cinneide shows that this possibility is severely limited. O Cinneide s argumentation indicates the exceptionality and severity of a decision to disobey. Follesdal develops this point in his chapter, which applies John Rawl s theory of civil disobedience to relations between democratic parliaments and strong IHRJ institutions. Rawl s theory depicts civil disobedience as an ultimate stabilizing device . This depiction makes sense in the IHRJ context, as justified disobedience could be a route to prevent states withdrawing from a system that they are not formally able to overrule.148 A. Follesdal, Law making by law breaking? A theory of parliamentary civil disobedience against international human rights courts , p. xxx. 148 31 Rawls theory provides six defining characteristics of civil disobedience and four conditions for such acts to be justified. Follesdal s articulation of these requirements, in the context of parliaments and the IHRJ, show that there is room for debate about the basis for disobedience and the degree to which the limited space for it to occur should be constrained. In contrast to O Cinneide, Follesdal does not fix offence to democratic constitutionalism as the key tipping point. Instead the concern underpinning disobedience is specified as relevant normative principles – the implication is that there can be broader concerns guiding disobedience.149 Follesdal is more cautious about the potential for destabilisation of the system. The disobedience must not of itself increase the risk of destabilisation. Follesdal also extends the terms of the debate with requirements for the conduct of the parliament: [t]he act is meant to bring about change in the international norm ; [n]ormal appeals should have been made and have failed – at least if they are not obviously ineffectual and [t]he act is publicly acknowledged as violating the international obligations of the state . With these points, Follesdal argues that the debate on justified disobedience should not rest only on an assessment of the actions of the IHRJ but also on the steps taken by the domestic parliament. Follesdal s analysis adds to the explanations of Bates and O Cinneide as to why the disobedience in the prisonervoting saga is not to be seen as justified. 6.3 In circumstances of relationship breakdown, how should the IHRJ respond? Whether or not there is reason to see the disobedience from a domestic parliament as justified should inform how the IHRJ responds. Follesdal s chapter includes reflection on how the IHRJ should respond to a national parliament in a situation of justified disobedience. In such circumstances, there is reason 149 A. Follesdal, Law making by law breaking? , p. xxx. 32 for the IHRJ to at least reconsider its practice, e.g. an interpretation, that has given rise to the disobedience. In circumstances of non-justified disobedience, the parliament is assumed to be acting unreasonably within the confines of the institutional and political context of the international human rights system. As such, there is no reasonable expectation for the IHRJ to reconsider a disputed interpretation. Instead, a response from the IHRJ is likely to be determined by how important it is for the IHRJ to repair its relations with a state and how open it is to operate in strategic manner.150 One challenge for the IHRJ in circumstances of non-justified disobedience is that the sort of response that will be productive may not be self-evident. For instance, partially modifying a contested interpretation might be enough to restore relations with a state in some circumstances, but it also shows that the IHRJ may buckle under pressure – which may increase future resistance. It is unclear, for instance, what effect the ECtHR s refinement of its position on the contested prisoner voting issue through Scoppola v Italy No 3 had on relations with the UK.151 Yet Bates describes how following this judgment incautious and reactionary remarks from Prime Minister Cameron saw him commit his political reputation to retention of the prisoner voting ban, emboldening the no-retreat camp. 152 In the face of the continued stalemate on the prisoner voting issue, there have though been some signs that general relations between the ECtHR and the UK Parliament are improving. The explanation for this may be found in a greater emphasis from the ECtHR on its subsidiary role.153 This can be linked to a reduction in the number of UK cases An international court concerned about its legitimacy may be especially concerned about its relationship with high compliance states, S. Dothan, Reputation and Judicial Tactics A Theory of National and International Courts (CUP, 2014) p. 223. 151 Scoppola v. Italy (no. 3), Appl. No. 126/05, 22 May 2012, para. 96. 152 Bates, Democratic override (or rejection and the authority of the Strasbourg Court , p. xxx. 153 J.P. Rui, The Interlaken, Izmir and Brighton Declarations: Towards a Paradigm Shift in the Strasbourg Court s Interpretation of the European Convention of Human Rights? , Nordic Journal of Human Rights, 31 (2013), 28, 52. 150 33 found admissible.154 It might also help to explain the perception amongst certain UK parliamentarians that the ECtHR in UK cases has adopted a more deferential style of judging.155 This possible improvement in relations, in spite of the continued impasse on prisoner voting, suggests that, in seeking to restore relations with states, it may not always be most effective for an IHRJ institution to address only the focal point of contestation. Ultimately, there is good reason for the IHRJ not to operate with complete ignorance in instances of relationship breakdown.156 This would be to overlook opportunities that may be available to readily enhance relations with national parliaments. Still, the nature and extent of any response should be carefully tailored to suit the particularities of the general status of relations between the international institution and the state. Taken together, the analyses of Bates, O Cinneide, and Follesdal indicate the need for more attention to be given to inter-institutional dialogue between parliaments and the IHRJ on the meaning of international human rights norms.157 Greater emphasis on interaction could be one means to help alleviate the tensions that can arise between democratic and judicial authorities in the international human rights system. 7. Towards principles for organising how the IHRJ relate to parliaments? The chapters of this volume do not give rise to a blueprint of steps that the IHRJ institutions should take in relation to parliaments to maximise the protection and realisation of human rights. One reason for this is the variety in the institutions of the IHRJ and the range of institutional and political contexts that they encounter. Still, reviewing the chapters in light of the surrounding scholarly and policy debates does bring to light several considerations that this final section proposes should inform how 154 See A. Wagner and R. Hacker, Charts Which Show The European Court Of Human Rights Has Dramatically Changed Its Approach To The UK , th May 2016, http://RightsInfo.org. 155 Dominic Grieve MP, speaking at The Rule of Law, the European Court of Human Rights, and the UK: A New Court for a New Era?, seminar, Bingham Centre for the Role of Law, April 2016 (report: http://www.biicl.org/event/1174); see also F. de Londras and K. Dzehtsiarou, Managing Judicial Innovation in the European Court of Human Rights Human Rights Law Review, 15 (2015), 523, 538. 156 See also C. R. Sunstein, Backlash s Travels , . 157 On the theme of dialogue in relation to national and international courts, see A. Müller (ed.), Judicial Dialogue and Human Rights (CUP, forthcoming 2017). 34 institutions of the IHRJ calibrate their relations with national parliaments. These are: supportive subsidiarity; coordination of connections; and contextual sensitivity. These principles might also serve as useful guides for future research agendas in this area. Supportive subsidiarity: The degree to which parliaments exercise their human rights role effectively is central to understand the subsidiary role of the IHRJ. When this role is underperformed, the caseload of the IHRJ increases and the effectiveness of its outputs is reduced. Hence, in exercising its powers, the IHRJ should not only work to develop a theory of subsidiarity to determine in which circumstances a parliament is owed deference. The IHRJ should also work to develop a supportive theory of subsidiarity to determine how the powers of the IHRJ can be exercised to contribute to the advancement of the human rights role of parliaments. To facilitate this development, future research might further examine the impact that the practices described in this volume have had on national parliaments.158 Insights might also be sought through situating the IHRJ within orchestration theory, which has been developed by scholars of international relations to help understand how other types of international organisations achieve objectives through intermediaries.159 Coordination of connections: The IHRJ connects with parliaments in both procedural and evaluative ways. For each interaction, there is only limited discretion for the IHRJ to develop its practices in ways that are likely to be more or less beneficial for the human rights role of parliaments. In order to maximise the potential for a positive impact from the adjustments, the IHRJ should coordinate the way in which these connections are practiced with regard to a particular parliament. This coordination should be intrainstitutional, working to ensure that signals sent from one connection are complementary to another one exercised by the same institution. Coordination should also be interinstitutional, working to ensure that the different institutions that connect with one parliament are sending complementary signals. This could be enabled through further 158 For a possible methodology, see, C. Evans and S. Evans, Evaluating the Human Rights Performance of Legislatures , (2006) Human Rights Law Review, 6 (2006), 545, 561. 159 See K. W. Abbott, P. Genschel, D. Snidal, and B. Zangl (eds.), International Organizations as Orchestrators Cambridge University Press, , p. ; T. Pegram, Global human rights governance and orchestration: National human rights institutions as intermediaries , European Journal of International Relations, 21 (2014), 595. 35 research into the extent to which different points of connection with national parliaments within and across institutions are currently practiced in ways that are complementary. Insights might be sought from the work of scholars that are starting to study international human rights law from an integrated perspective.160 Contextual Sensitivity: The details of the human rights role of parliament vary from state to state and from issue to issue. The IHRJ should be aware of the particularities of the role of parliament across the contexts they encounter. The IHRJ should use their procedural connections to help generate awareness of particular contexts. This awareness of contexts should inform how the IHRJ exercises their evaluative connections with parliaments. Proceeding in this manner, the operation of the IHRJ might serve over time to help bring to light the types of human rights practices that are most desirable within particular parliamentary contexts on particular issues. Future research can help by examining whether certain domestic institutional or political contexts are more or less conducive to a human rights role for parliament. It could also be important to consider whether certain clusters of parliaments might be more or less susceptible to the influence of the IHRJ in this area. Scholarly work on the functioning of parliaments is likely to be a useful source of insights.161 Ultimately, it is hoped that this volume, including the articulation of the three organising principles, can stimulate debate and help the IHRJ to complement other actors, such as the PACE and the Inter-Parliamentary Union (IPU), that recognise and actively work to advance the human rights role of national parliaments.162 160 See E. Brems, Should Pluriform Human Rights Bodies Become One? Exploring the Benefits of Human Rights Integration , European Journal of Human Rights, (2014), 447, 467 161 See, e.g., Martin and Vanberg, Parliaments and Coalitions; M. Russell, D. Gover, K. Wollter, and M. Benton, Actors, Motivations and Outcomes in the Legislative Process: Policy Influence at Westminster , Government and Opposition , forthcoming ; D. Arter, Conclusion. Questioning the Mezey Question : An Interrogatory Framework for the Comparative Study of Legislatures , The Journal of Legislative Studies, 12 (2006), 462. 162 See also developments at the UN Human Rights Council, e.g., on June , the Panel discussion on the contribution of parliaments to the work of the Human Rights Council HRC and its Universal Periodic Review UPR , available at https://www.upr-info.org/en/news/the-role-of-national-parliaments-within-the-upr-discussed-at-thehrc; and HRC Resolution 30/14, 29 September 2015, A/HRC/30/L.23. 36

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