Democracy and sovereignty vs international human rights: reconciling the irreconcilable?

Abstract

ABSTRACT Developing friendly relations among nations founded on the ‘principle of equal rights and self-determination of peoples’ and ‘sovereign equality of all its Members’ and encouraging ‘respect for human rights and fundamental freedoms’ are two purposes of the United Nations. Human rights are often understood to be ‘universal, indivisible and interdependent and interrelated’, but with hundreds of different peoples in the world how can that be? Democracy is another ‘universally recognised ideal’ and ‘core value’ usually understood to mean that a sovereign people through a democratic-majority-rule system of governance decide the rules of law by which they live. Are these concepts reconcilable? The tension between human rights and democracy is not isolated to Europe where states in the ECtHR system often object to human rights decisions by the court. A meta-narrative of constitutionalisation and judicialisation is offered to explain a complex global political context of human rights jurisprudence. How the ECtHR, a leading human right court, addresses this tension may be an important lesson for the global human rights movement; the court’s use of evolutionary dynamic interpretation and the margin of appreciation reflect these tensions. Will the court accept the invitation to be more respectful of democratic sovereignty or exercise increasingly strong judicial review such that contracting parties withdraw from the system? This is not only an important question for the success of the ECtHR but the wrong response could portend a dim future for the global human rights movement.