Sunday, February 15, 2009

Democratising Int'l Law: ECHR as an Approach?

Continuing where my previous post left off, a recent European Court of Human Rights (ECtHR) ruling, Case of Nolan and K. v. Russia, nicely illustrates one potential approach international law could take in addressing the democratic deficit problem. Of course, pondering the democratic deficit itself raises a host of preliminary questions. However, as any adequate treatment of them would extend this post well beyond its narrow scope, I'll mention some, but set them judiciously aside for another day:

  • Is any universal morality we seek to advance ultimately best served by international lawmaking without regard to it, each party instead acting as rational self-aggrandiser?
  • If international self-aggrandising behaviour is morally justifiable, does it nonetheless create universal obligations in its operation? Would these even resemble moral universals?
  • Is democratic input an effective means to arrive at the universal obligations normatively warranted, either as overlap among states' own interests or lawmaking receptive to morals?

It's worth note, however, that at least some commentators consider democratic pressures in the international legal arena justifiable--indeed so much so that their absence makes legal internationalisation morally suspect. For the purposes of this post, I assume at least so much of their argument as casts international democratisation in a normatively desirable light.

The ECtHR, and its Nolan and K. v. Russia case specifically, is an example of how international arrangements might increase the democratic influence on global lawmaking. The role of the public is increased through their access to this court. And even where their efforts by it fail, the visibility it affords them may well spur debate, inform the court's institutional image, and ultimately steer its future jurisprudence.

Admittedly, ECtHR rulings bind State Parties only to the extent they consent. As such, individual actions may well have no substantive effect at the very moment of their disposition. Russia may not reverse its course with regard to Nolan; it might not revise its resident reentry policies at all. But the fact that Russia has committed itself to a broadly worded statement of human rights principles (The European Convention on Human Rights (ECHR)) and jurisdiction of a court tasked with the interpretation thereof works a democratising effect on its own. International law evolves through interplay between the instruments of the present and their framing against the past. As accession to the ECHR sweeps in a broad swath of states--developed and developing, NATO and CIS--its relevance to our times stands on its universality of reach. And being such an index, the law of the future will necessarily build upon the ECHR and its Court's interpretation--along with all its attendant receptivity to the public.

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