International Human Rights Conventions

Abstract International law in general and international human rights conventions in particular are often thought to constitute a form of global legal constitutionalism that undermines the possibility of a domestic political constitution. This chapter explores four objections that lie behind political constitutionalist criticisms of such legal instruments: the ‘exclusive democratic control’, the ‘global democratic deficit’, the ‘constitutional transfer’, and the ‘judicial discretion’ objections. It suggests all four are reasonable yet can be met if (1) agreement to such a convention is seen as involving a ‘two-level’ game among democratic states whereby they agree to form an international association of democratic states under their equal ongoing democratic control, (2) legislation undergoes pre-legislative parliamentary scrutiny for compliance, and (3) there is an intergovernmental override of court decisions, which thereby remain forms of ‘weak review’. I argue that the convention arrangements can be seen as more or less compliant with these criteria.