The Great Change: Turning Cathy into a Lawyer

This would be why the US rarely consents to jurisidiction of the international courts.

Incidentially, as far as the issue of damages goes, I don't think that this case wields much of a club. If it is precidential, then it seems to severely limit the types of damages that can be sought in this sort of case.

Of course, this is just about the only international law case I've ever read (and I just read it right now), so what do I know?

Mark

Because, from what I understand, it was fairly groundbreaking to award any damages at all, the court may have been reluctant to award a higher amount.

However, now that states have been put on notice that they will be held liable if they do not apply their national law sufficiently to the protection of these parents' and children's rights, punitive damages for future lapses will be seen as much more appropriate.

Not having any understanding of either the rules on precident in the international court or of the rules about punative damages in those courts, I can't really comment.

On the other hand, if the court regularly begins giving out large damages in these sorts of cases, I suspect that the signatories to the convention would be likely to seek changes in the rules.

But, once again, I really don't know that much about international law (though after reading these cases, I am becoming sympathetic to the administration's relucatance to subject our government to the jurisdiction of many of these courts).

Mark

You can't equate the issues of sovereignty you see played out here with the issues that Bush articulates. The exchange of complete autonomy for the protection of unifying institutions has been driven by circumstances unique to Europe. Its states have struck a bargain that makes sense for their geopolitical situation (whereas our system of federalism is the bargain that makes sense for ours.) Also, the lack of any formal bill of rights (like we have) means that human rights in Europe get protected via different mechanisms than they do in the US. They don't have a Supreme Court that can interpret its Constitution, like we have. They need some other process, which is what you see in action here.

True...

Though I suspect that the British probably felt that their sovereign judicial system (convoluted and quaint as it is) was perfectly capable of maintaining the rights of their citizens on matters that don't really involve the citizens of other EU nations.

Thus, I can't imagine that, using your example from another post, the Brits are thrilld that some international court has decided that British defamation laws (as applied to a domestic defendant and upheld by the Brit's highest court-- the law division of the house of lords) were (in at least one application) a violation of human rights.

And, I suspect, the Brits would be distraught to hear you say that their relationship with Europe was more like that of Alabama to the United States than like that of the United State to the world organizations. Though of course, the relationship is clearly somewhere in between.

I note, also, that the plaintiff in the Austrian case was not an EU citizen, but an American. it seems interesting that EU members would be willing to give our citizens a claim against their sovereign states that the US would be totally unwilling to reciprocate. We both know what remedy an Austrian father would have against an American state were the situation exactly reversed-- there would definitely be no money damages awarded.

Mark

You're not taking into account the nature of the treaties involved, and why the affected countries would want to be bound by them.

The ECHR currently has 45 members, including all the EU countries, those formerly comprising Yugoslavia, and those from the former Soviet Union. In a region which has so recently and so often been wracked by wars and destruction because one nation in its sovreignty was NOT "perfectly capable of maintaining the rights of their citizens" this convention is a tremendously important safeguard against that kind of future harm. It has tremendous legitimacy among its members, and does not easily or often change. Nor would any nation want to leave it in a tiff; to do so would signal that it is a rogue nation, unwilling to respect basic human rights and would send an alarm to its neighbors. Rather, when they joined the Convention each nation voluntarily subjected itself to this court's jurisdiction, knowing full well that it might be applied against it, and on matters such as these.

This is not, of course, to say that the UK is "thrilled" by this ruling [the McLibel one]. But its opinion on the matter is not really the issue. The decision is a bit like Gideon v. Wainwright, where a separate state is being told that its obligations under a unifying agreement (there the Constitution, here the European Convention on Human Rights), requires it to provide legal aid. (I doubt Florida was "thrilled" with that ruling either.) But it's part of the bargain of being part of something greater than itself. Florida gets benefits by being part of the United States, and the UK gets benefits by being part of the ECHR.

[Note: this also has nothing directly to do with the UK being part of the EU. It refers to its condition as part of the European community, not the "European Community."]

[And the American claim was based on an obligation Austria had under the Hague Convention, so it really had little to do with providing any sort of special right to an American]

I appreciate your factual clarifiactions (though I can't say I fully understand their impact)... However I still would argue that this is exactly the kind of decision that casuses the US to avoid participation in international courts.

This is not to say that the UK was wrong to choose to give up some sovereignty to these sorts of bodies. This is only to say that the US (in its rather distinctive political, economic, and geographic situation) would have relatively little to gain from subjecting its legal and political systems to this sort of reduction in sovereignty.

Mark

Also...

I don't know that I agree with your comparisson to Gideon v. Wainright.

Gideon applied federal law of a soverign to limit the effect of the laws of what really was a political subdivision of that soveriegn.

The European Court decision interpreted the provision of a treaty against a soverign signatory to the treaty.

Notwithstanding the likely intent of the founding fathers, by the 60's no one really would look at an american state as a fully soveriegn government. The constitution just grants the federal government too many reserved powers.

By contrast, the various signatories to the (apparant) web of different treaty organizations are clearly soverigns who are contracting away limited amounts of sovereign rights to a loosely connected web of treaty organizations (which you named in your post, and the difference between which I don't pretend to understand).

This is a big difference.

Mark

I'm not sure this is too groundbreaking as a matter of the international framework, and so perhaps not too relevant to the U.S.'s international framework.

If the situation was reversed, a European suing in the U.S. would be possible. You have the Alien Torts Claims Act, for one, allowing aliens to sue here for breaches of international law. I don't know if it's that much more likely for the ECHR to be 'activist' than any given district court. And beyond the jurisdictional issues, it's just a matter of deciding what the relevant treaty obligations are, and any 'sovereign immunity' issues.

And the ECHR is a bit different than other international courts, like the International Court of Justice. Much of the problem with the ICJ and other courts is that there are serious enforcement problems; the ECHR, by contrast, is much more binding on all parties. So even if Austria loses this case, it knows it can rely on the ECHR as an effective court in future cases.