How and When Can the International Human Rights Judiciary Promote the Human Rights Role of National Parliaments?

Abstract

Parliamentary bodies at the international level work to enhance the role of parliaments in the realisation of human rights. The Parliamentary Assembly of the Council of Europe (PACE) and the Inter-Parliamentary Union (IPU) are particularly active. This chapter addresses the theory and practice that help to determine how and when the international human rights judiciary (IHRJ) may also promote the human rights role of national parliaments. In the first part it asks: what is the human rights role of parliaments? To what extent can that role be subject to external influence? Why should the IHRJ be interested in encouraging its improvement? What could the IHRJ promote to help advance the human rights role of parliaments? In the second part, it draws on the initial analysis in exploration of some of the modalities that are available to the IHRJ for implementation of a promotional agenda. The focus is on three modalities considered to be relatively well suited for impact and further development: interpretation of rights (especially political participation and communication rights), modes of reasoning (on deference and the proportionality test), and concluding observations by UN human rights treaty bodies on state reports. The analysis draws on the institutional frameworks, relevant case law and reports from the IHRJ, along with a surrounding body of literature from multiple disciplines. A key focus of the analysis is on the challenges that might be encountered by IHRJ institutions attempting to promote the human rights role of national parliaments and how they might be navigated. Particular attention is given to the practice from the European Court of Human Rights (ECtHR) and two of the UN human rights treaty bodies, the Committee of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW Committee) and the Committee on the Rights of the Child (CRC Committee). These bodies are at the forefront of developments in this area. However, the analysis is intended to have relevance for the IHRJ institutions in general.