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The Legitimacy Deficits of the Human Rights Judiciary: Elements and Implications of a Normative Theory

Theoretical Inquiries in Law 2013, Vol. 14:339-360

Andreas Follesdal*
The Article addresses some of the disagreement concerning the legitimacy of the international human rights judiciary. It lays out some aspects of a theory of legitimacy for the international human rights judiciary that seem relevant to addressing two challenges: First, it is difficult to justify the human rights judiciary by appeal to standard accounts of why states agree to subject themselves to treaties. What is the problem the international human rights judiciary is meant to help solve !econd, the human rights judiciary seems undemocratic and even antidemocratic when it overrules domestic, accountable legislatures. !uch international judicial review is therefore sometimes thought to be normatively illegitimate, at least regarding democracies.

If men know not their duty, what is there that can force them to obey the law? An army, you will say. But what shall force the army? 1 INTROD !TION

Are international and regional human rights courts and other treaty bodies normati ely
legitimate? If they are, what makes them so, and when? !his Article addresses some of the disagreement concerning these issues, with regard to the international human rights "udiciary in #articular. !he aim is also to sketch a general theoretical framework suitable to addressing se eral of the dilemmas, and to illustrate some of the contributions made by, and challenges facing, attem#ts to bring international #olitical #hiloso#hy to bear on institutions and their design. !he international human rights "udiciary includes regional bodies such as the $uro#ean %ourt of &uman 'ights ($%t&'), which inter#rets and ad"udicates the $uro#ean %on ention on &uman 'ights ($%&'), and the Inter*American %ourt of &uman 'ights

* !his Article was written under the aus#ices of +ulti'ights , an $'% Ad anced -rant on the
.egitimacy of +ulti*.e el &uman 'ights /udiciary , www.+ulti'ights.net0 and 1luri%ourts, a 'esearch %ouncil of 2orway %entre of $3cellence , www.1luri%ourts.net. It was first #resented at the %onference on International %ourts and the 4uest for .egitimacy, !el A i 5ni ersity, /une 6, 7817, and then at a conference of the International 1olitical 9cience Association, +adrid, /uly :, 7817. I am grateful to the organi;ers and #artici#ants of those conferences, es#ecially for the #re#ared comments of 'uti !eitel and +ikyoung <im0 and to -eir 5lfstein, +itch 'obinson and other +ulti'ights members for constructi e suggestions for im#ro ements0 and to the editors of this /ournal. 1 !&=+A9 &=BB$9, B$&$+=!& =' !&$ .=2- 1A'.IA+$2! 7: (.ondon> %ass 1?@1) (1??@). %on ention for the 1rotection of &uman 'ights and Aundamental Areedoms, opened for signature 2o . B, 1:C8, 716 5.2.!.9. 771 (entered into force 9e#t. 6, 1:C6) (as amended by 1rotocol 11 and 1rotocol 1B) Dhereinafter $%&'E.

(IA%&') established under the =rgani;ation of American 9tates (=A9). 7 It also includes the core treaty bodies set u# to monitor statesF com#liance with such human rights treaties as they ha e sub"ected themsel es to, including the 5nited 2ations &uman 'ights %ommittee (&'%) for the International %o enant on %i il and 1olitical 'ights,6 the %ommittee on the $limination of Giscrimination against Homen (%$GAH),B and the %ommittee on the $limination of 'acial Giscrimination (%$'G).C !he #resent Article focuses on the human rights "udiciary, with #articular attention to two central legitimacy challenges. Airst, it is difficult to "ustify the human rights "udiciary by a##eal to standard accounts of why states agree to sub"ect themsel es to treaties. Hhat is the common #roblem which the international human rights "udiciary is meant to hel# sol e? Answers to this Iuestion are reIuired in order to determine the effecti eness of these bodies, "ustify their authority o er well*functioning democracies, and identify which design features should be ad"usted. 9econd, it is necessary to consider charges that the human rights "udiciary is undemocratic and e en antidemocratic when it o errules domestic, accountable legislatures. 9uch undemocratic features are sometimes thought to render this human rights "udiciary normati ely illegitimate. !he Article lays out some as#ects of a theory of legitimacy for the international human rights "udiciary that seem rele ant to addressing these #u;;les. 1art I considers why such concerns about legitimacy ha e become salient. 1art II #resents se eral different senses of legitimacy that are often conflated. 1art III #ro ides a sketch of an institutional normati e theory concerning the legitimacy of the international "udiciary in general. 1art IJ goes on to consider the two a##arent legitimacy deficits of the human rights "udiciary, both by showing how it does fit the standard case for an international "udiciary in 1art III, and furthermore by identifying three additional reasons for such institutions, e en in democracies. !hroughout I #oint to the significance of #ublicity and general com#liance for the normati e authority of the international "udiciary. !he last 1art concludes.

7 American %on ention on &uman 'ights, 11BB 5.2.!.9. 176, 2o . 77, 1:?: (entered into force /uly
1@, 1:K@). 6 International %o enant on %i il and 1olitical 'ights, -.A. 'es. 7788A (LLI), 5.2. -A=', 71st 9ess., 9u##. 2o. 1?, 5.2. Goc. AM?61?, at ?? (entered into force +ar. 76, 1:K?) Dhereinafter I%%1'E. B %on ention on the $limination of All Aorms of Giscrimination against Homen (%$GAH), -.A. 'es. 6BM1@8, 5.2. -A=', 6Bth 9ess., 9u##. 2o. B?, 5.2. Goc. AM6BMB?, at 1:6 (entered into force 9e#t. 6, 1:@1). C International %on ention on the $limination of All Aorms of 'acial Giscrimination, -.A. 'es. 718? (LL), Anne3, 5.2. -A=', 78th 9ess., 9u##. 2o. 1B, 5.2. Goc. AM?81B, at BK (entered into force /an. B, 1:?:).

I" #H$ #ORR$ %&O T THE LE'ITI(%!$ O) THE INTERN%TION%L H (%N RI'HT* J DI!I%R$+ By way of introduction, first some notes on the recent concerns about the legitimacy of the international "udiciary. !his attention may seem odd. Hhy should this "udiciary not merit deference? !heir raison d"etre will often a##eal to the ob"ecti e of the rele ant treaty, which states ha e consented to com#ly with. 9tandard functions of treaties are familiar from game theory> states "oin treaties to hel# address arious collecti e action #roblems. ? !hey may want a sufficiently inde#endent third #arty to ad"udicate conflicts #eacefully0 or to assure other actors of their long*term commitments to limit or #ool their so ereignty on some issues in order to a oid #risonersF dilemma or free*rider #roblems and instead achie e solutions each #refers. 9uch accounts ha e been challenged in recent years. K =ne reason is that the international courts or treaty body decisions im#ose burdens and a sense of in"ustice on some #arties, raising the Iuestion of why com#ly? @ !he normati e issues raised by the international human rights "udiciary reIuire systematic attention to the legitimacy of these bodies. !o frame the issue, consider in contrast the standard case that normati e theories of legitimacy ha e addressed, concerning the state. !he central actors are citi;ens and go ernments. !he challenge is to find reasoned answers when citi;ens ask whether a #articular administration , including the legislati e, e3ecuti e and "udicial branches , is normati ely legitimate> Hhy and under what conditions should I, as a citi;en, obey these #ublic bodies? !he general Iuestion is when and why the decisions of these #ublic bodies should count as a (defeasible) reason for citi;ens to act differently than they otherwise would , where the reason is not sim#ly the threat of sanctions or other forms of direct self*interest. 'egarding the international human rights "udiciary, we ask similarly> Hhen and why should the decisionsM iewsMrecommendations of the international "udiciary count as (defeasible) reasons for other actors to act differently than they otherwise would? 2ote that the international "udiciaryFs action*guiding role is different from that of state institutions in at least four ways. Airst, the international "udiciary utters not only

? Allen Buchanan N 'obert =. <eohane, The #egitimacy of $lobal $overnance Institutions, 78


$!&I%9 N I2!O. AAA. B8C (788?)0 <aren /. Alter, The %ultiple &oles of International 'ourts and Tribunals: (nforcement, )ispute !ettlement, 'onstitutional and Administrative &eview , in I2!$'GI9%I1.I2A'P 1$'91$%!IJ$9 =2 I2!$'2A!I=2A. .AH A2G I2!$'2A!I=2A. '$.A!I=29> !&$ 9!A!$ =A !&$ A'! 6BC (/effrey .. Gunoff N +ark A. 1ollack eds., 7817)0 cf. %lifford /ames %arrubba and +atthew /ose#h -abel, 'ourts, 'ompliance, and the *uest for #egitimacy in International #aw , 1B !&$='$!I%A. I245I'I$9 .. LLL (7816). K Allen Buchanan N 'ussell 1owell, !urvey Article: 'onstitutional )emocracy and the &ule of International #aw: Are they 'ompatible , 1? /. 1=.. 1&I.. 67? (788@). @ +ichael QRrn, #aw and 'ompliance at )ifferent #evels, in .AH A2G -=J$'2A2%$ I2 1=9!2A!I=2A. $5'=1$> %=+1.IA2%$ B$P=2G !&$ 2A!I=2*9!A!$ 1, 1 (+ichael QRrn N %hristian /oerges eds., 788C). (SIf the intrusions into the constituent units of a multile el system are too strong and com#liance works too well, then com#liance crises may result, which in ol e an o#en, normati ely*dri en re"ection of the regulation. !his is es#ecially true if social integration lags behind and a common #ublic discourse is absent.).

decisions as do domestic courts, but also iews or recommendations , of which some are legally binding and others are not. !hat is, #ro#er deference to this "udiciary may still allow other actors to set the iews of the "udiciary aside in light of other weighty considerations. 9econd, the actors in the case of international courts are not #rimarily citi;ens. !here are many kinds of members of the com#liance community. : !hey may include , more or less directly , national courts and #arliaments, #olitical #arties, the e3ecuti e and administration0 and also ci il society actors, business actors or the like seeking to influence such state bodies, or whose bargaining #osition shifts in the shadow of the international "udiciary.18 =ther actors who may be affected are other international courts and treaty bodies, and other states who may consider retaliation or further collaboration. !hird, each of these actors may consider the human rights "udiciaryFs utterances to ha e bearing on Iuite different kinds of actions and not "ust com#liance. !he central issue is not whether to sim#ly com#ly with the international "udiciary. If the human rights "udiciary is legitimate, the obligations these bodies create are not necessarily that other bodies blindly obey unconditionally, but that they weightily take consideration of their "udgments, iews or recommendations. 9tate organs or international bodies may hold that another inter#retation of the treaty under discussion is better, but be affected nonetheless by their duty to defer to the treaty body. A domestic "udiciary may decide to "udge in conformity with the international tribunal, or to #ay it due regard. A #arliament or administration may decide to reform or make laws or #olicies or #olicy #latforms that conform to a "udiciary iew or ruling. %hristian !omuschat notes that e en though the iews of the &uman 'ights %ommittee in cases of indi idual com#laints are nonbinding, states ha e an obligation to e+amine them carefully, and if they disagree they must #resent counter*arguments. 11 %i il society actors may use a "udgment or a iew as a #olitical tool in su##ort of changes. 9ome such effects also arise from national courtsF rulings. !his brings us to a fourth difference> the international tribunals are international, rather than #art of a domestic #ower structure. !his has se eral im#lications, limiting the lessons that can be learned from the legitimacy discussions concerning domestic courts. 17 +ost strikingly, domestic courts, while inde#endent in some ways, are still embedded in a

: <A'$2 A.!$', !&$ $5'=1$A2 %=5'!O9 1=.I!I%A. 1=H$' (788:)0 B$!& A. 9I++=29, +=BI.IQI2&5+A2 'I-&!9> I2!$'2A!I=2A. .AH I2 G=+$9!I% 1=.I!I%9 (788:)0 .aurence '. &elfer, and N $rik Joeten, $rik, International 'ourts as Agents of #egal 'hange: (vidence from #$,T &ights in (urope, ?K I2!F. ='-. (forthcoming 7816), available at htt#>MMscholarshi#.law.duke.eduMcgiM iewcontent.cgi?articleT687CNconte3tTfacultyUscholarshi#. 18 'obert .. &owse N 'uti !eitel, ,eyond 'ompliance: &ethin-ing Why International #aw &eally %atters, 1 -.=BA. 1=.FP /. 17K (7818). 11 %&'I9!IA2 !=+59%&A!, &5+A2 'I-&!9> B$!H$$2 IG$A.I9+ A2G '$A.I9+ 778 (788@). 17 ,ut see Ponatan .u#u, International .udicial #egitimacy: #essons from /ational 'ourts , 1B !&$='$!I%A. I245I'I$9 .. LLL (7816).
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domestic social basic structure as one of a set of institutions. 16 9ignificant as#ects of such domestic basic structures are in many states under democratic control, and checked by other state bodies. At the international le el, howe er, while there arguably is a global basic structure,1B there are no identifiable legislati e or e3ecuti e bodies that ser e to check and balance the international "udiciary , though there are multi*le el checks and balances of contested significance.1C !his com#le3ity adds to the challenges when e3#loring how the international "udiciary can increase its normati e legitimacy. !he human rights "udiciary in #articular has drawn criticism. =ne reason is that the general rationale for treaties as collecti e solutions to shared #roblems does not seem to fit human rights treaties. &uman rights norms largely regulate go ernmentsF treatment of their own citi;ens, which means they address a different kind of collecti e action #roblem (the situation*structural side1?) than other sectors where mutual self*binding is deemed necessary to ad ance shared ob"ecti es. A second concern is one of the central roles of the human rights "udiciary, which is to limit ma"oritarian democracy. !hus, se eral authors ha e critici;ed #ractices of domestic "udicial re iew for being beyond democratic #arliamentary control and hence illegitimate.1K By e3tension, international courts and tribunals (I%!s) are e en less sub"ect to democratic accountability, hence e en more sus#ect. A theory of human rights should hel# us understand, assess and alle iate such and other tensions between national democracy and a robust international "udiciary. 1@ !his concern is heightened due to courtsF e oluti e or dynamic inter#retation of treaties , human rights treaties in #articular. !reaty bodies can hardly a oid no el inter#retations if they are to ensure that the rights remain #ractical and effecti e 1: when circumstances change. But this #ractice makes them e en more sus#ect from a democratic #oint of iew> the treaty bodies surely make law when they inter#ret dynamically , yet they carry out this legislati e task without democratic accountability. &ow, if at all, can such worries be addressed?

16 /=&2 'AH.9, The ,asic !tructure as !ubject, in 1=.I!I%A. .IB$'A.I9+ 7CK (e3#anded ed. 788C). 1B Andreas AVllesdal, The )istributive .ustice of a $lobal ,asic !tructure: A 'ategory %ista-e , 18
1=.. 1&I.. N $%=2. B? (7811). 1C Andrew +ora csik, Is There a 0)emocratic )eficit0 in World 1olitics A Framewor- for Analysis , 6: -=JO! N =11=9I!I=2 66? (788B). 1? Jolker 'ittberger N +ichael Qurn, Findings from the !tudy of 0(ast2West &egimes ,0 7? %==1$'A!I=2 N %=2A.I%! 1?C (1::1). 1K (.g., 'I%&A'G B$..A+P, 1=.I!I%A. %=29!I!5!I=2A.I9+> A '$15B.I%A2 G$A$29$ =A !&$ %=29!I!5!I=2A.I!P =A G$+=%'A%P (788K)0 /eremy Haldron, The 'ore of the 'ase Against .udicial &eview, 11C PA.$ ../. 16B? (788?). 1@ Allen Buchanan, 3uman &ights and the #egitimacy of the International 4rder , 1B .$-A. !&$='P 6: (788@). 1: 9tafford . 5nited <ingdom, 6C $ur. %t. &.'. 1171 (7887).

II" THE T%,ONO($ O) -LE'ITI(%!$. !he increased attention to issues of legitimacy has made it abundantly clear that legitimacy is used in a ariety of ways regarding the international "udiciary. /ormative legitimacy concerns the nature of the arious forms of normative pull or com#liance*eliciting force that the conce#t SlegitimacyS e3erts with regard to the international "udiciary.78 !hat is> Hhy should the decisions or recommendations of the international "udiciary count as (defeasible) reasons for other actors when they decide what to do? 9uch actors might be domestic courts, legislatures, administrations, ci il society bodies, or other states. !hey defer to the international "udiciary or not when they inter#ret treaties, sha#e new #ieces of legislation, or urge reforms.71 9uch normative legitimacy is related to, but should be distinguished from, social legitimacy and the concerns about a lack of it. Goes the #ublic, ariously defined, regard the "udiciary as worthy of su##ort? !hat is, does the "udiciary command general #ublic belief that it has rightful authority or secure general compliance? Aor instance, do states generally defer to the "udgments of a regional court? 9uch social su##ort may also affect the normati e legitimacy of such treaty bodies. !hat is, for a state that is considering whether to com#ly, othersF e3#ressed attitudes may amount to a further reason to defer. 9ome also challenge the legal legitimacy or legality of some international courts, or #articular "udgments. !hat is, does the court ha e the legal authority it claims o er the rele ant issues0 are the "udgments in accordance with the a##ro#riate #rinci#les of legality, etc.? 9uch are some of the concerns raised about the international "udiciary, e.g., how dynamically the "udiciary may inter#ret treaties, or how deferential it must be to state so ereignty, with reference to the Jienna %on ention on the .aw of !reaties.77 Ainally, se eral discussions about legitimacy are concerned with the effectiveness of treaties and their bodies> first of all, whether or not state #arties actually defer in the rele ant sense. An additional as#ect is causal effectiveness on the ground> Go the treaty and the treaty body actually sol e the #roblem they were created to address, or at least ser e to #romote their stated ob"ecti es, be it im#ro ing the human rights situation or securing en ironmental sustainability.76 A central conce#tual Iuestion is whether these arious forms of legitimacy are related, and how. In #articular, some note that a wea- "udiciary with no enforcement at its

78 !&=+A9 +. A'A2%<, !&$ 1=H$' =A .$-I!I+A%P A+=2- 2A!I=29 7B (1::8). 71 'f. .aurence '. &elfer N <aren /. Alter, #egitimacy and #awma-ing: A Tale of Three International
'ourts, 1B !&$='$!I%A. I245I'I$9 .. LLL (7816). 77 Jienna %on ention on the .aw of !reaties, +ay 76, 1:?:, 11CC 5.2.!.9. 661. 76 =ran '. Poung N +arc A. .e y, The (ffectiveness of International (nvironmental &egimes , in !&$ $AA$%!IJ$2$99 =A I2!$'2A!I=2A. $2JI'=2+$2!A. '$-I+$9> %A59A. %=22$%!I=29 A2G B$&AJI='A. +$%&A2I9+9 1 (=ran '. Poung ed., 1:::).

command reIuires higher #ercei ed normati e legitimacy. !hat is, insofar as a treaty reIuires dee# coo#eration , i.e., that states de#art from what they would ha e done in its absence7B , the treaty body must be able to influence actorsF reasons for action without the threat of sanctions. 9ome international courts and treaty bodies may threaten #ersistent iolators with e3clusion from im#ortant club goods , such as #otential e3clusion from the $uro#ean 5nion. But many treaty bodies e3ercise weak #ower at most, i.e., without formal sanctions. A state that decides to heed the authority of such bodies even against its other countervailing interests must thus be convinced to com#ly, #ossibly by the #ercei ed normative legitimacy of the authority. !hus, some hold that the normative legitimacy of international human rights courts and treaty bodies is central if states are to recogni;e their authority and take their statements as inde#endent reasons for com#liance , be they obser ations, "udgments, iews, recommendations or general comments.7C !hat is to assume certain causal relations> decisions by a "udiciary that actors belie e is normati ely legitimate are more likely to ha e arious forms of im#act , that is, more social legitimacy , and this may in turn increase the normati e legitimacy and the effecti eness of the international "udiciary on the ground. And the o##osite holds as well> if it turns out that general com#liance with the treaty body fails to bring about the intended ob"ecti e, normati e legitimacy may suffer, and social legitimacy may unra el #artly as an effect. III" %*/E!T* O) % NOR(%TI0E THEOR$ O) LE'ITI(%!$ )OR THE INTERN%TION%L J DI!I%R$ I first lay out some elements of what is sometimes called an institutional #olitical theory of human rights, in contrast to natural theories, before turning to the conce#ts of normati e legitimacy, authority and content*inde#endent reasons and returning to the interrelationshi# between the different conce#ts of legitimacy. %harles '. Beit;, a #rominent #ro#onent of the former, suggests the difference thus> 2atural rights theories of human rights regard them as moral constraints e3#ressed, for e3am#le, in a state of nature, constraints that no #olitical authority may tres#ass. 7? Institutional theories of human rights, on the other hand, ty#ically hold that DtEhe central idea of international human rights is that states are res#onsible for satisfying certain conditions in their treatment of their own #eo#le and

7B -eorge Gowns et al., Is the $ood /ews About 'ompliance $ood /ews About 'ooperation , C8
I2!F. ='-. 6K:, 6@B (1::?). 7C GA2I$. B=GA29<P, .$-I!I+A%P I2 I2!$'2A!I=2A. .AH A2G I2!$'2A!I=2A. '$.A!I=29 (7811)0 9te en Hheatley, 4n the #egitimate Authority of International 3uman &ights ,odies , in !&$ .$-I!I+A%P =A !&$ &5+A2 'I-&!9 /5GI%IA'P (Andreas Aollesdal et al. eds., forthcoming 7816). 7? %&A'.$9 '. B$I!Q, !&$ IG$A =A &5+A2 'I-&!9 CC (788:).

that failures or #ros#ecti e failures to do so may "ustify some form of remedial or #re enti e action by the world community or those acting as its agents.7K An im#ortant difference for our #ur#oses is that the institutional focus of these theories leads them to consider issues of legitimacy and authority, and in #articular the long* term incenti es and effects of institutions that are authori;ed to act against states that iolate certain human rights. =n these accounts, a central function of human rights is to delimit the domain of state sovereignty, with im#lications for the actions of arious actors> D!Eheir actual or antici#ated iolation is a (defeasible) reason for taking action against the iolators in the international arena.7@ !hat is, as long as a state res#ects human rights, it can claim that its so ereignty #ro ides a reason for other states not to interfere. /ohn 'awlsFs account focused e3clusi ely on interference in the form of international military intervention, while other theories also include a broader range of actions or e3#ressions of concern. 7: 9e eral of these institutional theories share features of im#ortance here. Airst, they are institutional> human rights are regarded as norms that #rimarily regulate coerci e social institutions rather than indi idualsF actions. 68 A critical issue is whether such institutionali;ed #ractices must be legally binding, #ossibly sanctioned, or merely socially embedded. !he international human rights "udiciary is #resumably such an institution, but with a s#ecial twist> their main function is to regulate other institutions according to human rights standards, albeit with arying coerci e #ower. !hey ser e to limit statesF claims to so ereignty in the sense of immunity from concern and arious forms of inter ention by outsiders. 9econd, se eral of these institutional theories regard the human rights "udiciary as an integral #art of a broader subject matter which we may think of as the global basic structure> the rules and institutionali;ed #ractices as a whole which structure indi idualsF actions. 61 In our global basic structure states #lay #rominent roles, with their own domestic basic structures. In addition, there are regional and international basic structures which include , in #articular , regional and international treaties and treaty bodies. !hey are best assessed as ser ing im#ortant yet limited functions within the larger set of institutions, e.g., as

7K Id. at 16. 7@ /ose#h 'a;, 3uman &ights Without Foundations, in !&$ 1&I.=9=1&P =A I2!$'2A!I=2A. .AH 671
(9amantha Besson N /ohn !asioulas eds., 7818). 7: /ohn 'awls, #aw of 1eoples, in =2 &5+A2 'I-&!9> !&$ =LA='G A+2$9!P .$%!5'$9 B1 (9te#hen 9hute N 9usan &urley eds., 1::6). 68 !&=+A9 H. 1=--$, H='.G 1=J$'!P A2G &5+A2 'I-&!9 (7887). 61 AVllesdal, supra note 1C.

correcti e checks on democratic legislatures, or com#ensatory mechanisms for an o erall un"ust set of international rules. %onsider some salient features of such an institutional theory of the human rights "udiciary, concerning legitimacy, authority and content*inde#endent reasons. As indicated abo e, normati e legitimacy is an action*guiding conce#t, which may be aimed at regulating Iuite different sorts of action by se eral different actors. A #re alent e3#lication of the term is that it concerns an institutionFs moral right to attem#t to regulate other actorsF actions , be they citi;ens Iuestioning their own go ernment, or other states asking whether the so ereignty of a go ernment that is iolating human rights should be res#ected. In our case, then, the central Iuestions are whether, when and why the international human rights "udiciary is legitimate. It will be hel#ful to distinguish such Iuestions of legitimacy from a related issue sometimes referred to as a Iuestion of authority> whether other agents ha e a moral obligation to take the institutionFs decisions , within certain bounds , as a (defeasible) reason for action. Allen Buchanan holds that legitimacy is a matter of whether an institution is "ustified in wielding #ower.67 Buchanan and 'obert =. <eohane note that DlEegitimacy reIuires not only that institutional agents are "ustified in carrying out their roles, but also that those to whom institutional rules are addressed ha e content*inde#endent reasons to com#ly with them, and that those within the domain of the institutionFs o#erations ha e content*inde#endent reasons to su##ort the institution or at least to not interfere with its functioning. 66 !heir , ty#ical , account of Scontent*inde#endentS reason is that DoEne has a content*inde#endent reason to com#ly with a rule if and only if one has a reason to com#ly regardless of any #ositi e assessment of the content of that rule. Aor e3am#le, I ha e a content*inde#endent reason to com#ly with the rules of a club to which I belong if I ha e agreed to follow them and this reason is inde#endent of whether I "udge any #articular rule to be a good or useful one. 6B 9uch accounts of content inde#endence are often drawn from &...A. &art 6C and /ose#h 'a;.6? !hough they are called content inde#endent, these accounts may limit the contents of the commands. If an otherwise legitimate authority , "udicial or other , issues a

67 A..$2 B5%&A2A2, '$%I1'=%A. .$-I!I+A!I=2> '$A'A+I2-

!&$ 1'=B.$+ =A I2!$'2A!I=2A. .$-I!I+A%P K (7811). 66 Buchanan N <eohane, supra note K, at B11. 6B Id. 6C &...A. &A'!, $99AP9 =2 B$2!&A+ > 9!5GI$9 I2 /5'I91'5G$2%$ A2G 1=.I!I%A. !&$='P (1:@7). 6? /=9$1& 'AQ, $!&I%9 I2 !&$ 15B.I% G=+AI2 (1::B).

clearly un"ust decision, this does not obligate the sub"ects e en though issued by an otherwise legitimate authority. 2ormati e conce#ts of legitimacy are now often e3#ressed in terms of justifiability among political e5uals, for instance by a##eals to hy#othetical acce#tance or consent. !he legitimacy of a #olitical order such as the state, or of the global basic structure, or of the human rights "udiciary, is seen as an issue of whether the rele ant affected #arties would have or could have acce#ted it, under a##ro#riate choice conditions. !he Iuestion that arises is whether the coerci e e3ercise of #olitical #ower could be reasonably acce#ted by citi;ens considered free and eIual and who #ossess both a ca#acity for and a desire to enter into fair terms of coo#eration.6K !he normati e standard of legitimacy for the global basic structure as a whole is, for instance, that it should be arranged so as to res#ect, #rotect and further the best interests of indi iduals globally. 6@ A central #remise is the moti ation of the #arties whose acce#tance matters. !he assum#tion is that indi iduals act on a duty of justice. !hat is, they are committed to su##ort and com#ly with "ust institutions that e3ist and a##ly to us. It also constrains us to further "ust arrangements not yet established, at least when this can be done without too much cost to oursel es . . . #redicated on the belief that others will do their #art. 6: !his account of #olitical obligation has se eral features familiar from assurance games in game theory.B8 =n this account, the sub"ects are contingent com#liers. !hey will com#ly and thereby abstain from some benefits to themsel es, but only under certain conditions. Aor them to ha e a normati e duty to obey commands , that is, for the institution to ha e normati e authority 6 reIuires, firstly, that the authority should be normati ely legitimate, and secondly, that citi;ens also ha e reason to trust in the future com#liance of other citi7ens and authorities with such commands. !hus, if the institution is to ha e authority it is not enough that it is normati ely legitimate> the sub"ects , or those otherwise su##osed to heed it , must be assured of this, and be assured of general com#liance. !his account may hel# us lay out some of the com#le3 relations between social and normati e conce#ts of legitimacy. .ack of general com#liance may reduce or remo e indi idualsF moral obligation to com#ly0 and in ersely, general com#liance , with normati ely legitimate institutions , may bolster indi idualsF moral obligation to do so. !hat

6K 9u"it %houdhry, 'iti7enship and Federations: !ome 1reliminary &eflections , in !&$ A$G$'A.
JI9I=2> .$-I!I+A%P A2G .$J$.9 =A -=J$'2A2%$ I2 !&$ 52I!$G 9!A!$9 A2G !&$ $5'=1$A2 52I=2 6KK (<aly#so 2icolaidis N 'obert &owse eds., 7881) 6@ 'f. 9I+=2 %A2$P, /59!I%$ B$P=2G B='G$'9 (788C)0 1=--$, supra note 610 '5!I -. !$I!$., &5+A2I!PO9 .AH (7811). 6: /=&2 'AH.9, A !&$='P =A /59!I%$ 11C (1:K1)0 accord. id. at 66?. B8 A..A2 -IBBA'G, HI9$ %&=I%$9, A1! A$$.I2-9> A !&$='P =A 2='+A!IJ$ /5G-+$2! (1::7)0 $.I2=' =9!'=+, -=J$'2I2- !&$ %=++=29> !&$ $J=.5!I=2 =A I29!I!5!I=29 A=' %=..$%!IJ$ A%!I=2 (1::1).

a state regards a treaty as legitimate is often thought to increase the stateFs com#liance , though the em#irical e idence for that seems lacking. B1 !he account sketched abo e may e3#lain why belief in normati e legitimacy need not trigger a change in beha ior. Belief that an institution is normati ely legitimate alone is not enough to affect the beha ior of contingent com#liers> they must also ha e assurance that others share such a "udgment and that they generally com#ly. Indeed, without such assurance, an otherwise normati ely legitimate institution may lac- authority in that it fails to trigger other actorsF moral obligation to obey or defer. !his account also fits with legitimacy understood as effecti e #roblem*sol ing. In general, treaties may be "ustified when they hel# resol e arious collecti e action #roblems and thereby actually benefit indi iduals. !his is what 'a; describes as a ser ice conce#tion.B7 If an agent has a duty to sub"ect their will to someone else, this is because the agent conforms better to reasons for action that a##ly to the agent anyway. Aor instance, coordination #roblems among se eral actors may gi e each of them reason to sub"ect themsel es to a coordinating body. !his may be the reasoning for arious treaty bodies established to secure com#liance with rules that benefit all, but where each is tem#ted not to do their share. It may a##ly in the case of treaties to reduce tariffs, or to standardi;e certification, or other bona fide goods. In any indi idual case, the agent is not at liberty to second*guess the authority> its directi es generally #reem#t the sub"ectsF reasons. B6 Hhen a treaty body #rotects such goods, it en"oys legitimacy and authority. %onsider, for instance, such "ustifications for the $uro#ean 5nion. &itherto out*of* reach ob"ecti es ha e ranged from #eace , in the late 1:B8s and 1:C8s , to economic growth and a sustainable en ironment. !he $uro#ean 5nion suffers from the lack of such legitimacy when it fails to contribute to addressing the #roblems that the signatories to the arious $.5. treaties had in mind. =ther treaty bodies , of the $uro#ean 5nion and others , ty#ically address arious collecti e action games. !hey may address #risonersF dilemmas where each #arty wants to free*ride on the com#liant others.BB =r a treaty body may be a #recommitment arrangement. 9uch a body may be the result of a battle of the se3es game where all #arties seek some collecti e decision, but agree to lea e that decision to a sufficiently inde#endent court or tribunal. $3am#les include the Horld !rade =rgani;ation (H!=) which commits #arties to lower trade barriers, sub"ecting them to the H!= A##ellate

B1 Ian &urd, Torture and the 1olitics of #egitimation in International #aw , in !&$ .$-I!I+A%P
!&$

=A

&5+A2 'I-&!9 /5GI%IA'P, supra note 7?. B7 /ose#h 'a;, The 1roblem of Authority: &evisiting the !ervice 'oncept, :8 +I2. .. '$J. 1886 (788?). B6 Id. at 181?*78. BB -iandomenico +a"one, (urope0s 0)emocratic )eficit0: The *uestion of !tandards, B $5'. ../. C (1::@).

Body. In each case, establishing an authoritati e treaty body can hel# the states achie e what they ha e reason to alue. Aour remarks are rele ant. Airst, this account brings out that e en though such treaties limit so ereignty, they may at the same time e+pand the range of aluable o#tions a ailable to so ereign states. !reaties and their bodies may increase statesF ca#acity to achie e #ublic #ur#osesBC , we may think of this as the worth of so ereignty. !hus, se eral scholars note that in our multi*le el world so ereignty has changed from being a constituti e feature of states into a set of bargaining chi#s by which states #ool decision*making authority in arious sectors.B? 9econd, the signatory states may en ision that the #roblem addressed by the treaty, and the most a##ro#riate solution gi en the circumstances, may change o er time. !hey may therefore want to guide treaty body discretion in inter#retation, so that the ob"ecti es are secured in the best way #ossible. !hus the Jienna %on ention on the .aw of !reaties states that a treaty shall be inter#reted in the light of its ob"ect and #ur#ose .BK !hird, note that the ability to sol e such #roblems is not sufficient for a treaty to ha e legitimate authority. It remains to be argued why indi iduals or other actors should be bound by one #articular such #ro#osed treaty , why that authority can constitute a sufficient reason for action. =fficial ratification and acce#tance of a treaty, by a sufficient number of signatory states, are im#ortant factors in establishing such authority. Aourth, the legitimacy of such #roblem*sol ing institutions crucially de#ends on whether such treaties actually do contribute to their normati ely #ermissible ob"ecti es. !hat is> do they actually benefit not only the interests of states, but ultimately the interests of indi iduals? I submit that sus#icions that this was not the case were #artly res#onsible for the H!= #rotests in 9eattle 1::: against se eral as#ects of H!= #olicies of economic globali;ation.B@

I0" J *TI)I!%TION* )OR THE H (%N RI'HT* J DI!I%R$ 1 %ND %L*O )OR DE(O!R%!IE* !o e3#lain or "ustify treaty bodies as solutions to collecti e action #roblems seems less a##ro#riate with res#ect to the human rights "udiciary. !his is the first legitimacy challenge to

BC 'obert =. <eohane et al., )emocracy2(nhancing %ultilateralism, ?6 I2!O. ='-. 1 (788:). B? !ee, e.g., 'obert =. <eohane, 3obbes0s )ilemma and Institutional 'hange in World 1olitics:
!overeignty in International !ociety, in H&=9$ H='.G ='G$'? 52$J$2 -.=BA.IQA!I=2 $2G =A !&$ %=.G HA' 1?C, 1KC (&ans*&enrik &olm N -eorg 9orensen eds., 1::C).
A2G !&$

BK Jienna %on ention, supra note 76. B@ !ee, e.g., 'yan -oodman N Gerek /inks, %easuring the (ffects of 3uman &ights Treaties, 1B $5'.
/. I2!O. .. 1K1 (7886)0 =ona &athaway, )o 3uman &ights Treaties %a-e a )ifference , 111 PA.$ ../. 1@K8 (7887)0 9te#hen G. <rasner, !overeignty, &egimes, and 3uman &ights, in '$-I+$ !&$='P A2G I2!$'2A!I=2A. '$.A!I=29 16: (Jolker 'ittberger ed., 1::6).

the human rights "udiciary. +any treaties and their bodies reIuire general com#liance in order to achie e their ob"ecti e and hence to be normati ely alued. But this general account does not ob iously a##ly to human rights treaties> Hhat is the nature of the collecti e #roblem, and why should the solution in ol e mutual self*binding and sub"ection to common authorities? If the human rights "udiciary be regarded as the solution , and a good solution at that , what e3actly is the collecti e action #roblem? 9ince the human rights "udiciary does not seem to fit this general format, why acce#t such treaty bodies as normati ely authoritati e? And, in #articular, why should generally human rights*com#liant, well* functioning democratic states bind themsel es thus? I submit that there are some collecti e action #roblems among states which the human rights "udiciary hel#s address. In addition, the human rights regimes also address three other #roblems. !here are at least two inter*state #roblems that international human rights regimes may hel# to sol e. =ne is stated in the 1reamble of the $uro#ean %on ention on &uman 'ights> !he member states of the %ouncil of $uro#e seek to maintain and further reali;e the common obser ance of human rights and fundamental freedoms, by taking first ste#s for the collecti e enforcement of some of the rights of the 5ni ersal Geclaration. B: A second collecti e action #roblem occurs within a Iuasi*federal order such as the $uro#ean 5nion, where member states ha e agreed to become sub"ect to ma"ority decisions. !hey reduce the risk of abuse of such #ooling of decisions by insisting that all member states are sub"ect to human rights courts.C8 In addition, I submit that there are at least three reasons for international "udicial re iew of human rights, mainly concerning collecti e action #roblems not among states, but between the authorities of a state and its citi;ens. 9ome of these arguments hold e en for well*functioning democracies, whose authorities largely com#ly with these legal human rights obligations anyway. !his is not to say that these arguments su##ort the #resent institutions and #ractices of the human rights "udiciary in general, and the $%t&' in #articular, but they indicate the kinds of arguments that may guide reforms. !hese arguments must be included when assessing the "ustifiability of the human rights "udiciary. !he following brief sketch takes as a normati e starting #oint that the global basic structure as a whole should be arranged so as to be trusted to res#ect, #rotect and further the best interests of indi iduals globally , e.g., in the form of human rights #rotection , and to #romote #ublic confidence that this is, in fact, the case. Aor our #ur#oses we can bracket much of the disagreement about the substanti e reIuirements of "ustice for the global basic

B: $%&', supra note 7, 1reamble. C8 Andreas Aollesdal, .ustice, !tability and Toleration in a Federation of Well24rdered 1eoples , in
'AH.9O9 .AH =A 1$=1.$9> A '$A.I9!I% 5!=1IA? 7:: ('e3 +artin N Ga id 'eidy eds., 788?).

structure0 but note that we find e idence of such obligations at the $uro#ean le el in the abo ementioned 1reamble of the $uro#ean %on ention of &uman 'ights. Arom this #ers#ecti e, an international human rights "udiciary may #ro ide se eral benefits, e en to fairly well*functioning democracies. In #articular, democratic rule combined with constraints on legislatures in the form of international judicial review of human rights may #ro ide im#ortant forms of such assurance. %onsider a fairly standard gauge of democratic rule, agreed u#on by a broad range of democratic theorists.C1 It is not intended as a com#lete definition, but rather as a statement about irtually all modern #olitical systems that we would normally call democratic. Gemocracy is the name of institutionally established procedures that regulate com#etition for control o er #olitical authority on the basis of deliberation, with nearly all adult citi;ens being #ermitted to #artici#ate in an electoral mechanism where their e3#ressed #references o er alternati e candidates determine the outcome. 5nder certain fa orable conditions, such #rocedures hel# ensure, and gi e the #ublic assurance, that the go ernment is res#onsi e to the ma"ority or to as many as #ossible , more reliably than nondemocratic #rocedures. $ssential to the case for democracy o er alternati e decision*making #rocedures is com#etiti e elections. !heir im#ortance lies in making #olicies and elected officials res#onsi e to the #references of citi;ens. C7 In #articular, an o##osition must be able to contest the current leadershi# elites and #olicy status 5uo.C6 Acti e o##osition #arties and media scrutiny are crucial for fact finding, agenda setting and assessments of the effecti eness of #olicies. =n this line of argument, the normati e case for democratic rule is com#arati e> forms of democratic rule by means of com#etiti e elections to choose #olicies and leaders are better than alternati e constitutional arrangements for decision*making. !he claim is that such democratic accountability mechanisms ensure that the decisions can be trusted to be more res#onsi e to the best interests of the citi;enry than ia other collecti e decision*making arrangements. But mistakes occur e en under the best #rocedures, and international re iew of such decisions ser es as a aluable safety mechanism. !his is one main line of res#onse to those who challenge #ractices of "udicial re iew , be they by domestic or international courts , as undemocratic. %onsider the worry> $ en when the human rights "udiciary works as it should in sto##ing a legislati e act, some will regret what they see as a loss to the democratic

C1 Getails are elaborated in Andreas AVllesdal N 9imon &i3, Why There Is a )emocratic )eficit in the
(8: A &esponse to %ajone and %oravcsi-, BB /. %=++=2 +<!. 9!5G. C66 (788?). C7 -. BI2-&A+ 1=H$.., $.$%!I=29 A9 I29!'5+$2!9 =A G$+=%'A%P> +A/='I!A'IA2 1'=1='!I=2A. JI9I=29 (7888). C6 (.g., '=B$'! A. GA&., 1=.PA'%&P> 1A'!I%I1A!I=2 A2G =11=9I!I=2 (1:K1).
A2G

Iuality of the decision, since a ma"ority decision has been o erturned. 9ome regard these losses as high , and Iuestion the likely gains.CB =n the other hand, I submit that some such limitations on the sco#e of legislaturesF authority, and bodies entrusted to u#hold such limitations, are not necessarily nondemocratic. Airst, of course, the treaty that establishes the treaty body has been ratified by the states , in a democratic manner where reIuired , so that the international human rights "udiciary en"oys delegated #ower in a democratic way. Aurthermore, minority #rotections of some kind, with authority #laced outside the legislature itself, may be a com#onent of any set of workable ma"oritarian democratic institutions worthy of res#ect. All institutions must ha e a s#ecified sco#e of authority, and a legislature which is corrected when it o erste#s its authority is not necessarily o erruled in a nondemocratic way. Hhich bodies may be best #laced and authori;ed in what ways to #ro ide such benefits remains an o#en Iuestion. I submit that the human rights "udiciary hel#s alle iate se eral such risks, inter alia the #rereIuisites for well* functioning democratic #rocedures such as freedom of s#eech, free and fair elections, etc. =ther risks are those that minorities tend to face under ma"ority rule. !he ma"ority may e3#loit its #owers, intentionally and knowingly or not, in ways that harm the minority unduly. An added reason for some minorities to be concerned is that they may reIuire unusual arrangements to secure the same needs as the surrounding ma"ority. 9uch arrangements may include s#ecial #rotections, e3em#tions or su##ort to maintain as#ects of their own culture , s#ecial needs with regard to freedom of religion, education and language, diet or other central com#onents of what makes their li es go well in their eyes. A minority may also ha e s#ecial #references which will lose out in all ma"oritarian decisions0 though each of them on its own may be minor, the cumulati e effect is deleterious. +inorities may thus fear that they will be harmed e en by a##arently innocuous ma"oritarian decisions. 9tandard mechanisms in a democracy that ensure res#onsi eness to the electorate will not work for such grou#s. Aor instance, a small minority may ne er get attention from #olitical #arties that seek otes. !he ma"ority can offer some, but not many, good reasons why they can be trusted to domestic judiciary should #rotect minorities against such standard threats. ote according to their sense of "ustice, e en on such minor issues. In general, a well*functioning

%" The Human Rights Judiciary !an !orrect the 2)e34 Human Rights 0iolations That !an &e E5pected Even #hen Democracies #or6 #ell !he first reason why the human rights "udiciary may be "ustifiable and hence normati ely legitimate is that a well*functioning international human rights "udiciary #ro ides further #rotection of ulnerable domestic grou#s. !his is #artly because the domestic "udiciary may

CB (.g., B$..A+P, supra note 1@.

not be sufficiently inde#endent of the go ernment. Aurthermore, national "udges are stee#ed in the domestic culture, often drawn from cultural ma"orities. !here is thus a risk that they may fail to notice or gi e sufficient weight to the untoward effects of decisions on arious minority grou#s> there is a real risk that they do not fully gras# the im#act of such decisions. Aurthermore, while national "udges may be skilled in the domestic legislation and know the domestic institutions, they are not es#ecially trained in com#arati e social science, to discern whether there are alternati e #olicies and legislation that can secure the same , laudable , ob"ecti es without iolating some human rights. A "udiciary com#osed largely of foreign members will be less likely to suffer from such biases. Aor instance, it can #ress for reasoned argument when a state holds that it is "ustified in setting some human rights aside due to the e3igencies of the situation. CC In such case, the international human rights "udiciary can hel# check whether the state is indeed correct, that it has no o#tions a ailable that a oid human rights iolations. !he international "udiciary may thus ser e to monitor the limits on decisions states can make within their borders. !his safeguard reduces the reasonable fear that those in #ower will ignore their sense of "ustice with untoward effects on those who do not side with the ma"ority ote. 9ocial science research suggests that human rights treaties , and hence their bodies , do indeed #ro ide such #rotections under certain conditions. Aor instance, Beth 9immons notes regarding the effect of human rights treaty ratification> $ en the most #olitically sensiti e human rights treaties ha e #ositi e effects on torture and re#ression for the significant number of countries that are neither stable democracies nor stable autocracies. International law matters most where domestic institutions raise the e3#ected alue of mobili;ation, that is, where domestic grou#s ha e the moti e and the means to demand the #rotection of their rights as reflected in ratified treaties. C? 2ote that these findings mainly concern the im#act of ratification rather than that of ad"udication. Aurthermore, we should note that the treaties and their bodies only #lay a limited role within well*functioning democracies, where we can e3#ect the go ernments to take due care, and where the domestic "udiciary often #erforms scru#ulous human rights "udicial re iew. But there are still two "ustifications for the international human rights "udiciary that also hold for democracies. &" The Duty to /romote Just Institutions in Other *tates A second reason to alue the human rights "udiciary is based on citi;ensF and hence their go ernmentsF duty to #romote a more "ust global basic structure , including more human

CC (.g., I%%1', supra note B, art. B0 $%&', supra note 7, art. 1C. C? 9I++=29, supra note 18, at 1K.

rights*res#ecting states. Aor instance, when a well*functioning democracy agrees to sub"ect itself to a human rights court, this may #romote similar sub"ection by other states whose citi;ens stand to benefit from such re iew. !his is because ratification by some states adds #ressure on other states to also ratify , states whose ratification does make a difference to citi;ens. 9immons notes that DtEhe single strongest moti e for ratification in the absence of a strong alue commitment is the #reference that nearly all go ernments ha e to a oid the social and #olitical #ressures of remaining aloof from a multilateral agreement to which most of their #eers ha e already committed themsel es. CK =ne conseIuence of this im#act of the human rights "udiciary is that any assessment of the human rights "udiciary cannot be restricted to intra*state effects, but must also consider the im#act in less democratic states that form #art of the #resent global structure. !his seems an a##ro#riate res#onse to some generally well*functioning democracies who claim that the human rights "udiciary at best #ro ides few benefits to the domestic #o#ulation. !he benefits to citi;ens of other states cannot be o erlooked, and they hel# legitimi;e the international human rights "udiciary.

!" %ssurance that the Domestic Institutions %re *ufficiently Legitimate so that Their !ommands *hould !ount as Reasons for %ction A third reason for ha ing a human rights "udiciary is that such bodies that are inde#endent of the domestic go ernment may #ro ide citi;ens much*needed assurance about othersF com#liance , including that of their go ernment. 9uch a mechanism hel#s con ince contingent com#liers that the go ernment will continue to res#ect human rights, and that these citi;ens thus ha e an obligation to obey. !his is an im#lication of the role of human rights, as 'a; noted> !he human rights "udiciary ser es to delineate the limits of national go ernmentsF authority o er citi;ens.C@ It may thus hel# bestow legitimacy on states by #ro iding assurance when appropriate that these actors are #ursuing normati ely "ust #olicies. !hese go ernments thus ha e the right to rule and are themsel es authorities that create obligations for yet others. 'ecall that com#ared to other modes of go ernance, democratic arrangements not only ha e better mechanisms to ensure that authorities go ern fairly and effecti ely, but also hel# #ro ide #ublic assurance that such is the case. C: 1arty contestation and media scrutiny

CK Id. at 16. C@ 'a;, supra note 7:, at 67@. C: 1hili# 1ettit, )emocracy: (lectoral and 'ontestatory, in G$9I-2I2- G$+=%'A!I% I29!I!5!I=29
18C (Ian 9ha#iro N 9te#hen +acedo eds., 7888)0 Adam 1r;eworski et al., %inimalist 'onception of )emocracy: A )efense, in G$+=%'A%PO9 JA.5$ 76 (Ian 9ha#iro N %asiano &acker*%ordon eds., 1:::)0 Ian 9ha#iro, The !tate of )emocratic Theory , in 1=.I!I%A. 9%I$2%$> !&$ 9!A!$ =A !&$ GI9%I1.I2$ 76C (Ira <at;nelson N &elen +ilner eds., 7881).

hel# align the interests of the sub"ects with those of their rulers, and contribute to making the institutions trustworthy.?8 I submit that "udicial re iew to #rotect human rights #ro ides another trust*building measure. Hith such re iew, those who fear that they will regularly be out oted can be somewhat more certain that the ma"ority will not sub"ect them to undue domination, the risks of unfortunate deliberations, or incom#etence. !his safeguard reduces the risk that those in #ower will ignore their sense of "ustice, with untoward effects on minorities. !his legitimi;ing role of the human rights "udiciary for go ernments that merit com#liance is one reason to su##ort it , and hence contributes to the normati e legitimacy of the human rights "udiciary itself. Aor e3am#le, consider that in 7811, of the :CC a##lications against the 5nited <ingdom that the $%t&' decided, the go ernment was found to ha e iolated the $%&' in only eight cases?1 , and the go ernment usually takes ste#s to correct those iolations that the $%t&' finds. 9ince the ery large ma"ority of cases show the go ernment to be in com#liance with its obligations under the $%&' e en when alleged ictims think otherwise, the $%t&' ser es to assure the citi;ens that this #articular go ernment generally merits com#liance. 2ote that this assurance is , and indeed must be , conditional. Insofar as a go ernment fails to com#ly with the human rights "udiciary, this assurance*building role fails. In such cases, the $%t&' signals to citi;ens that their go ernment #erha#s does not merit obedience. If the $%t&' could not be e3#ected to find against human rights* iolating states, it would no longer #ro ide any aluable assurance to citi;ens of com#liant states. =ne im#lication of this argument is that we must assess the human rights "udiciary, and reform #ro#osals concerning it, not only by whether they enhance com#liance with human rights within states, but whether they also #ro ide #ublic assurance thereof. At least two as#ects of these arguments are rele ant for this discussion of legitimacy. Airst, the main reason why treaties ha e such effects on the ground is not due to international enforcement, but domestic, often democratic mechanisms. 9uch treaties , and arguably their bodies , contribute to shifting the domestic #olitical agenda0 they em#ower grassroots mo ements, and allow ictims of some human rights iolations to go to an international court to defend their interests. !he legal force and amount of sanctions a ailable to the treaty bodies may therefore not be so significant for their effects on the ground. 9econd, note that the first and third reasons for aluing the human rights "udiciary seem to hold regardless of whether

?8 %Wcile Aabre, A 1hilosophical Argument for a ,ill of &ights, 68 B'I!. /. 1=.. 9%I. KK, @6 (7888). ?1 2icolas Brat;a, ,ritain !hould ,e )efending (uropean .ustice, not Attac-ing It , I2G$1$2G$2!,
/an. 7B, 7817, htt#>MMwww.inde#endent.co.ukMo#inionMcommentatorsMnicolas*brat;a*britain*should*be* defending*euro#ean*"ustice*not*attacking*it*?7:6?@:.html.

all other states acce#t its authority. !hus worries about #artial com#liance among the signatory states need not count against such bodies.

!ON!L *ION !his Article has sought to res#ond to two challenges concerning the legitimacy deficit of the international human rights "udiciary. Airst, the standard case for treaty bodies as #arts of the solution to coordination #roblems among states does also a##ly to some e3tent to the human rights "udiciary. And there are other reasons, in addition to the standard case, that indicate how in principle the international human rights "udiciary may be normati ely "ustified , and hence legitimate , e en to citi;ens of fairly well*functioning democratic states. !o conclude, I insist that this sketch of a "ustification of the human rights "udiciary should not be taken to im#ly that the $%t&' or any other #art of the human rights "udiciary is currently legitimate. !hese bodies may well ha e to be modified to enhance their "ustifiable functions. 9uch modifications may encom#ass the substanti e norms of the rele ant con ention, how the "udges are selected and their mode of work, or finally the decisions rendered , including such #ractices as the margin of a##reciation that the $%t&' grants states, or the nature of remedies im#osed by the Inter*American %ourt of &uman 'ights. ?7 I submit that such assessments and #ro#osals must be com#arati e, holistic and institutionalist. !he salient Iuestion is not sim#ly how things would ha e turned out in the absence of these institutions. Instead, we should com#are the current human rights "udiciary with the best alternati e institutions that might com#ose a global basic structure. I enture that in order to mo e toward a more legitimate global basic structure we should not utterly re"ect the #resent international human rights "udiciary, but rather identify areas for reform so as to make it more legitimate.

?7 Andreas Aollesdal, The #egitimacy of International 3uman &ights &eview: The 'ase of the
(uropean 'ourt of 3uman &ights, B8 /. 9=%. 1&I.. C:C (788:).

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