Not only are judges fallible, but any system which gives them wide-ranging powers over what are often political matters raises the question of how they are appointed and to whom they are accountable. This issue arises when it comes to appointments to national courts but all the more so for international ones.
These points are not made to denigrate judges or to undermine the need for judicial independence. But a political system which tends to turn political questions into legal ones places too much power in the hands of legal elites, while the high cost of legal actions is to the advantage of those with deep pockets.
Sixth, the ideal of compulsory jurisdiction by judges of international courts over contentious political matters produces special difficulties. Certainly, international arbitration may be a practical and peaceful way to resolve disputes between countries. But international courts which claim jurisdiction over individual countries do not coexist comfortably with notions of national sovereignty. Some would wish good riddance to national sovereignty. At the time Kelsen and Lauterpacht published their major writings some of the most powerful nation states were undemocratic.
The spread of democracy has led to a dilemma which those writers did not have to face. The problem is that it is only nation states that are capable of being democratic in any meaningful sense of the term. International elections are a pale shadow of national ones, as the experience of elections to the European Parliament demonstrates. International institutions are remote and unaccountable. The issue of checks and balances between judges and legislators is harder to resolve when the judges in question are drawn from a large number of different countries.
So far, there have been avid attempts by some senior judges in London and Strasbourg and by political advisers to obfuscate the underlying issue of ultimate authority over human rights decisions. There is talk of a "dialogue model" of relationships between the UK's Supreme Court and the European Court of Human Rights. Complex terms such as "subsidiarity" and "margin of appreciation" are bandied about. The issue of which institution is to have the final say is carefully avoided. Clearly, internationalist reformers such as Lord Lester hope that power will move away from the House of Commons, unnoticed and unopposed.
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