[rayiner]

I can't believe anyone still thinks international tribunals are a good idea. As if not bad enough for unelected judges to subvert democracy in their own county, but now you can have unelected judges in other countries subvert democracy in yours!

[SEMW]

> unelected judges to subvert democracy...

If your definition of 'democracy' is a system of tyranny of the majority, where an elected government can do whatever it likes, create law in its own image without constitutional limit or fetter (for fear of 'subverting democracy'), then I don't particularly want to live in a democracy. And, thankfully, I don't.

Liberal democracy (in the classical sense) has the principle of Rule of Law rather than Rule of Man, with associated elements of due process, human rights, etc. ranking as more important than political will. This necessarily entails a disinterested, unelected, apolitical judiciary to decide when the legislature or executive has breached your constitution / human rights document / etc. This seems to work out a hell of a lot better than the alternative.

(Even if you reject that - and the UK in theory does have a system of Parliamentary sovereignty rather than legal sovereignty - it's still hardly 'subverting democracy'. The situation here is still the executive (GCHQ) may be acting in violation of the will of Parliament (as expressed in the HRA1998). Parliament delegates the task of deciding when the executive has violated its law to various judicial bodies, domestic and international).

[rayiner]

"Democracy" is tyranny of the majority. In our constitutional republics, we have courts as a check on democracy, and that's necessary. Sometimes, those courts strike down programs generally supported by the electorate. Sometimes that's necessary too, but it's always a subversion of democracy.

However, courts ultimately derive their principles of justice from the values and traditions of a people. That's why international tribunals can have no legitimacy. It makes utterly no sense for judges in other countries, representative of people in other countries with different values and traditions, to weigh in on the actions of elected officials in your country. That's why Americans broadly dislike the idea, and I'd guess the majority of Britons do too.

[SEMW]

> However, courts ultimately derive their principles of justice from the values and traditions of a people.

That's a valid POV, but it can hardly be stated as fact. For example, the Universal Declaration of Human Rights owes its existence to a broad consensus that, actually, certain fundamental principles of human rights are universal, and a South African has as much of a right to not be tortured by his government as an Englishman does. Of course, not everyone agrees, but denying any kind of universal quality to human rights is a fairly... niche form of cultural relativism.

> That's why international tribunals can have no legitimacy.

Aaand that's just a non-sequitur. The ECtHR has legal legitimacy to rule on UK issues because the UK voluntarily signed the ECHR. Its rulings do not have direct effect in the UK, but have a certain amount of indirect effect nevertheless because Parliament passed a law in 1998 giving them that. (FWIW, since then, the ECHR - which was mostly drafted by an Englishman - can also be enforced domestically in UK courts, and the ECtHR have only rarely overruled UK courts on ECHR interpretation issues).

So the situation here is the executive (GCHQ) possibly acting in violation of the will of Parliament (as expressed in the HRA1998). Parliament has delegated the task of deciding when the executive has violated its law to various judicial bodies, domestic and international. That's not subverting democracy. It's enforcing it.

[gadders]

> which was mostly drafted by an Englishman

And unfortunately interpreted by activist judges from the continent.

[tptacek]

It's probably not enforcing democracy, since polls seem to show a overwhelming majority of Britons have problems with the ECHR.

[SEMW]

I could take issue with this implicit identification of 'democracy' with 'issue-by-issue 50%-majoritarian direct democracy' (i.e. the idea that democracy is whatever a >50% majority in a referendum would currently show on each issue taken separately). Many countries flirt with some elements of direct democracy (Switzerland goes furthest, that I know of), but none go that far. So the implication that that's the actual true form of democracy is arguably a bit silly.

...And this is getting perilously close to philosophical wankery over competing definitions of the word 'democracy', which doesn't make for a very interesting discussion, so I should probably stop there :)

[DanBC]

But why should a New York judge decide what happens in Alaska or Idaho?

[tptacek]

Well, first of all, they generally can't.

[DanBC]

There's 4 judges from New York on scotus.

[tptacek]

And in addition to the fact that they're 4 judges out of 9,800 total state and federal judges (which federal judges are also regionally allocated so as not to have Connecticut judges hearing Alaskan controversies), those four are extremely limited in which cases they can hear.

It's impossible to look at the US judicial system and come away with the conclusion that it heedless of the concerns of Floridians hearing Alaskan cases. The US system is almost literally the opposite of that.

[rayiner]

Tell me how people in Montana feel about the three justices born in New York City: Kagan, Sotomayor, Ginsburg? Tell me how much people in Montana like edicts coming down from Washington, D.C.?

We have a Supreme Court, and we need one because we're one country under one Constitution and one Federal Government, but it's been bitterly divisive and I don't know why any country would want to subject themselves to that without those constraints.

[oleganza]

Who defines and enforces "rule of law" and "human rights"? These people are the rulers then. When some "majority" or "president" decides that "X is a basic human right", then suddenly everyone who produces and sells X must sell it for government-imposed prices. Or has to go to jail.

It would probably be cool if we figured out all basic human rights once and for all and had the written laws enforce themselves without human supervision. But the reality is that people are doing harm to people, not papers. And people decide when this harm is justified and when it's not.

[SEMW]

> "X is a basic human right", then suddenly everyone who produces and sells X must sell it for government-imposed prices. Or has to go to jail.

This is nonsense. The ECHR is enforceable against states only (it's a treaty, after all - its signatories are states, not individuals). Non-state entities can't be sued, let alone prosecuted, for violating it - they're not bound by it.

It contains a list of rights and restrictions that states must comply in their three capacities (when taking executive actions, making laws, and ruling on cases). The rights are things like 'right not to be tortured' and 'right to free expression', not 'right to buy milk for 50p'.

(Ironically, if a state did decide to price-fix some basic substance, they're then in danger of running afoul of a different set of international laws: EU free trade regulations).

[gadders]

But things like "right to free expression" and "rights to a family life" are interpreted so broadly as to become a mockery.

[DanBC]

In this case GCHQ might be operating illegally. So, we follow the legal process in our country. But then, if the Government is still breaking its own laws, we can go to the European courts to get justice.

This is an important step in our justice system, and it's something that we are (mostly) proud of. There are a few problems.

[pjc50]

Sticking the "unelected" qualifier on "judge" as if there is no distinction between law and politics betrays a lot of prejudice. Judges in the EU aren't directly elected anywhere, as far as I know.

Human Rights law in the EU serves much the same role as constitutional law does in the US: an underlying set of values that the behaviour of the government must be consistent with. Article 8 ECHR serves much the same role as the US 4th Amendment in limiting searches.

Besides, if there's genuine consensus the rules can be changed and the judiciary have to go along with that.

[tptacek]

Judges everywhere tend to be "unelected". That's not innuendo. It's a fact that constitutional and legal scholars tend to be acutely aware of when determining the scope and balance of powers in a judiciary. Constitutional scholars constantly raise the same point about the US Supreme Court: its justices are unelected, and we are not a nation governed by philosopher kings.

[gadders]

I think C.S. Lewis had it right:

Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.

[rmc]

What's wrong with that? You have unelected judges deciding things in any country with a form of constitualial law. Not everything should be directly elected. A system where everything is decided by democracy can be bad too.

[tptacek]

Stipulate that our basis for comparison is the US just to keep things simple.

First, a lot of angst and effort goes into circumscribing the powers of the federal judiciary precisely because they're unelected. They are for instance limited to hearing actual controversies involving parties with standing.

Second, our constitutional system "works" because it follows from an actual constitution, which was ratified and over 200 years reshaped by elected representatives of the people. In no place in the US system is there an escape hatch for the Supreme Court to do whatever it thinks is right while contravening the constitution. A strong enough democratic majority can in fact force the Supreme Court to do anything, by amending the constitution.

[Zigurd]

The result we get is that the executive of a government claims they have complete freedom of action regarding national security. National security becomes a magic word that unlocks unconstitutional actions when you mix domestic operations with national security.

Are you claiming that an international tribunal to try a case against an unlawful executive is worse? Or are you claiming that if the executive does it, it isn't unlawful?