Subsidiarity and International Human Rights Courts: Respecting Self Governance and Protecting Human Rights – or Neither?

“Subsidiarity and International Human Rights Courts: Respecting Self Governance and Protecting Human Rights – or Neither?” in Law and Contemporary Problems 79 (2): 147-163. Several regional and international courts (ICs) and treaty bodies are empowered to review whether a state’s legislation and policies are consistent with the human-rights conventions it has signed. This article considers how subsidiarity may be brought to bear on the challenges the ECtHR and the IACtHR face. The article focuses on two politically salient, normative questions. First, should states— even well-functioning democracies—subject themselves to ICs with the authority to interpret and adjudicate alleged violations of relevant human-rights treaties? Second, is it is consistent with their mission of protecting human rights that ICs grant the states some discretion, that is, a “margin of appreciation,” or does such discretion nullify the human-rights protection the ICs were established to provide? The discussion of these ICs lends support to several of the assumptions concerning subsidiarity outlined by Markus Jachtenfuchs and Nico Krisch in this issue’s introduction. [WEB]