Normative Consensus and Contentious Practice: Challenges to Universalism in International Human Rights Courts

I. INTRODUCTION

In 2015 the Russian Constitutional Court announced that it would review all of the European Court of Human Rights (ECHR) rulings against Russia for their constitutionality.¹ This decision, which both the Duma and the Kremlin supported, underscored a fundamental disagreement between Russia and the ECHR about both the substance of human rights norms and the ways in which disagreements about human rights can and should be resolved. Russia has been a member of the Council of Europe since 1996 and agreed to accept the compulsory jurisdiction of the ECHR in 1998. Russian citizens regularly seek recourse at the ECHR and Russia even complies with many of the Court’s demands to pay financial reparations to victims. And yet, Russia’s prolonged tensions with the ECHR are textbook examples of the persistent, unresolved disputes at the center of the promotion and adjudication of universal human rights. Russia’s relationship with the ECHR suggests that underneath the façade of the institutionalization and judicialization of human rights remain fundamental divides about which rights “count,” and if and how those divides should be bridged. Simply engineering a different court or judicial process cannot ameliorate Russia’s contentious relationship with the ECHR. Instead, as we can learn from Reza Afshari’s long history of grappling with these inconsistencies in the international human rights regime, the problem runs much deeper than institutional design; they cannot be easily resolved.

In his 2007 Human Rights Quarterly article titled “On Historiography of Human Rights,” Afshari begins with an observation about a related fundamental inconsistency in the historiography of the international human rights regime. He writes:

One of the main issues that the current historiography has to grapple with is the apparent disparity between the often-celebrated normative global achievements in codifying human rights values among the UN member states and the often-lamented failures to enforce them. . . . I argue that the link should not be seen as mechanical or procedural. Weaknesses so obviously apparent in the enforcement process signify the lack of vigor in the normative consensus; the vim and vigor by which the face was adorned by high-flying colors might in fact have masked a frail body.²

This pattern of inconsistency is visible across a wide range of issue areas, from women’s rights to economic justice, and in diverse political contexts, from Iran to the United States. Examining the disjuncture between “often-celebrated” international human rights judicial instruments and their “often-lamented” enforcement and cooperation failures can give scholars and practitioners alike a clear view of the tensions that Afshari describes.

II. UNVEILING THE DIVISIONS IN THE INTERNATIONAL HUMAN RIGHTS JUSTICE REGIME

As Afshari reminds us, high levels of state membership and participation in international human rights and criminal tribunals sometimes mask deep divisions among their members over both the meaning of human rights and their understanding of how human rights disputes should be resolved. This is, in essence, illustrative of variations in states’ levels of commitment to international human rights institutions, as well as the basic norms under-girding them.

As part of an in-progress book project, I examine four extreme manifestations of these variations in states’ normative and political commitments to international human rights tribunals: 1) member states’ withdrawing, or threatening to withdraw, from the courts; 2) member states and political elites’ undermining and usurping legal cases; 3) stakeholders’ imposing financial restrictions on the tribunals; and 4) both members and non-members’ creating alternatives to the tribunals. In each of these circumstances, while contenders are calling into question the form and function of the tribunals, they are also casting doubt on the underlying norms themselves. For example, Venezuela’s withdrawal from the Inter-American Court of Human Rights in 2012 and the Organization of American States in 2017 cannot simply be dismissed as the consequences of a state’s displeasure with the international human rights system.³ Instead, it calls into question the principles of universality, compulsory jurisdiction, and the ability of international human rights laws and norms to protect individuals’ rights when the going gets...