International Human Rights and National Legislatures – Conflict or Balance?

Abstract

AbstractThe complex and often sensitive interrelationship between international human rights obligations and national governments and legislatures is the subject of debate in the Nordic countries. Criticism has been voiced against the dynamic interpretation of human rights norms and the limitations on legislatures resulting from the judicial activities at the international level, in particular the European Court of Human Rights. Against this background, this article discusses the interdependence between democratic legitimacy and the protection of fundamental rights, as illustrated by recent ECtHR case law. While the need for democracy to be capable of defending itself has been recognised, the ECtHR has emphasised the impact of the rule of law in the context of restrictions of rights as well as the responsibility of domestic authorities to exercise their legislative and other competences as a precondition for being granted the margin of appreciation. The distinction between civil and political rights and socio-economic rights has had significant influence on the discussion of human rights, democracy and the division of powers, and the animosity against entrusting power to settle legal disputes to judicial bodies is particularly strong with regard to socio-economic rights. Therefore, this traditional perception of the normative character of the two sets of human rights is being questioned, and the indispensable role of social, economic and cultural rights in developing stable and sustainable democracies is illustrated by reference to theory and practice applying an integrated approach to the various types of rights. The article concludes with some reflections on the impact of the criticism of dynamic human rights on the future protection of socio-economic rights, and the dilemmas inherent in domestic implementation of evolving international norms.