Subsidiarity as a Cure for Regional Human Rights Regimes? Bottom-Up Perspectives

The African system is now over 40 years old, but in some ways the relationship between it and domestic courts across Africa remains remarkably distant. There are many reasons for this: the ACHPR‘s caseload remains small compared to other regional systems, both the Commission and the Court lack the resources to build strong links with domestic institutions, access to library resources in many African domestic courts is still limited, until the last few decades most domestic African systems had had a relatively weak fundamental rights jurisprudence that did not draw on international and regional human rights law, scholarship on the African human rights regional system is still underdeveloped, and the law school education on the African system remains unsatisfactory. Yet, there are signs that some of these difficulties are being overcome. The question is whether these changed conditions will produce a closer relationship between the regional and domestic human rights systems.

Discussions on subsidiarity and regional human rights law are commonplace. The IACtHR has engaged with these issues since its establishment. In the early 1990s, when national constitutions made human rights law part of domestic law, Latin American constitutional courts became salient players in interpreting human rights norms, giving the IACtHR a prominent role as a regional constitutional court. Not having such power granted by the founding treaties, however, the Court has faced resistance from states. Scholars have studied resistance and pushback, and have offered avenues for reform to make the interaction between the Court and states more amicable. This paper looks at the current process of domestic constitution-making in Chile, which embraces the Court‘s position as a sort of regional constitutional court, and discusses whether the exercise of constituent power is a better, more sustainable, bottom-up mechanism for states to engage with international human rights law.

Constitutional courts in post-communist Central and Eastern Europe (CEE) were seen as domestic ECHR champions until recently. Their initial living conditions, however, did not suggest so. Judges had difficulties accessing expert information on ECHR law: their foreign language skills were often insufficient, domestic literature on the ECHR virtually non-existent, material resources scarce and constitutional courts‘ authority yet to be built. Based on a historical-institutional analysis and interviews with insiders, I trace how CEE constitutional courts overcame these obstacles and how it mattered for implementation of ECHR law. I argue that the phase of “discovering“ the content of regional human rights law and gaining skills to apply it is a necessary but often ignored part of the domestic side of subsidiarity that cannot be taken for granted. Finally, I explain how these factors matter for the current phase of democratic decay and resistance against the ECtHR in some CEE countries.