Judging International Judgments Anew? The Human Rights Courts before Domestic Courts

Abstract

In recent times, instances of contestation against the European Court of Human Rights and the Inter-American Court of Human Rights have made headlines, and, in many of these cases, domestic courts have played a role by refusing to follow the human rights courts or even declaring their judgments to be unconstitutional. This article undertakes an in-depth analysis of these instances of judicial resistance and puts them into context. This shows that domestic courts, even though originally not having been allocated this role, have become important ‘compliance partners’ of the human rights courts and now play an important and autonomous role in the implementation of their judgments. At the same time, they act as ‘gatekeepers’ and limit their effects in the domestic order. Recent cases even suggest a turn to a less open and more national self-perception of domestic courts. While this reflects to some extent the multiple – and sometimes conflicting – roles domestic courts perform at the intersection of legal orders, the article argues that the open and flexible stance many domestic courts take when faced with international judgments is better suited to cope with the complex and plural legal reality than systematically judging anew on matters already decided by the human rights courts.

Principled resistance and future of the ECtHR

“…Finally, the interpretative role of the ECtHR has been the subject of a recent formalisation. The invasion of the ECTHR into the process of discussions and of the reform proposals of the conventional system requires the strengthening of the principle of subsidiarity and the use of the margin of appreciation in the action of the ECtHR (Grabenwarter, 2014;Marchadier, 2014;Ziegler et al, 2015;Davis, 2016;Gerards & Lambrecht, 2018;Kälin & Künzli, 2019;Glas, 2020;Kunz, 2020;Alves Pinto, 2020).…”

Reconciling State Immunity with Remedies for War Victims in a Legal Pluriverse

“…On the other hand, national courts often, and maybe increasingly so, resist the application of international law and the implementation of international judgments, notably of the regional human rights courts. 113 In the Inter-American human rights system, courts in Venezuela, Uruguay, Dominican Republic, Costa Rica, El Salvador, and Argentina have refused to fully implement judgments issued by the Inter-American Human Rights Bodies since 2011. 114 In the European human rights system, the resistance by the Russian Constitutional Court, followed by the legislature, is notorious, and the Court quoted Sentenza 238/2014 as a precedent.…”

Who Safeguards the Guardians? A Subjective Right of Judges to their Independence under Article 6(1) ECHR

“…They are in a position to enforce the Convention standards in national disputes and to assume an essential role as compliance partners. 106 Exactly as in the EU, domestic courts are the foot soldiers in the enforcement of the Convention. 107 However, this privileged position in the enforcement mechanism of the Convention presupposes that the domestic courts operate in an institutional framework that guarantees their impartiality and independence.…”