O'Cinneide, Colm P; (2017) Saying ‘No’ to Strasbourg: When Are National Parliaments Justified in Refusing to Give Effect to Judgments of International Human Rights Courts? In: Saul, M and Follesdal, A, (eds.) The International Human Rights Judiciary and National Parliaments: Europe and Beyond. (pp. 304-328). Cambridge University Press: Cambridge, UK.

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Abstract

This paper critically analyses the normative strength of claims that national authorities – and in particular national parliaments - would be justified in refusing to give effect to judgments of international human rights courts (IHRCs) with which they are in substantive disagreement, and the related argument that a ‘democratic override’ mechanism should be built into all strong international human rights law (SIHRL) frameworks to give adequate legal recognition to this ‘right to disobey’. It examines the strength of the ‘democratic constitutionalist’ critique of IHRCs that underpins these arguments, and concludes that national parliaments will only be justified in refusing to give effect to judgments of IHRCs in exceptional circumstances. As a consequence, there exists no compelling reason to destabilise existing SILs to accommodate the rare instances where such national ‘disobedience’ will be justifiable. These arguments are developed with particular reference to the European Convention of Human Rights (ECHR), the best-developed SIHRL framework

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