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Globalization and Democracy 207

of human rights insofar as the European Convention of Human Rights
(ECHR) is binding on all member states, whether or not they have incor-
porated it into domestic law, and the European Court of Human Rights
works as a kind of Supreme Court to interpret the ECHR for all member
states. Even here, however, rulings are made on the basis of what is called
the “ margin of appreciation ” : in most cases, the European Court will fi nd
a state in breach of the European Convention only where there is agree-
ment across member states that individuals should enjoy particular rights.
A striking example is the Court ’ s decision in the case of children ’ s rights
in T v United Kingdom in 1999, where it was decided that, as there is no
common standard across the EU for the age at which someone can be
considered criminally responsible, the English court that tried a child of
10 on charges of murdering another child was not in breach of European
human rights law (Dembour, 2006 : 163 – 5).
The democratic legitimacy of the vast majority of human rights agree-
ments comes, then, from the way in which the procedures by which they
are created and adopted at international and national levels have built - in
state sovereignty. It is states that are bound to ensure the human rights
of individuals within their jurisdictions. One notable feature of this system

is that, although most states have ratified the major human rights
Conventions, human rights law differs somewhat between states. Variation
in the practices of human rights raises difficult questions, however, given

that they are supposed to be universal: each and every individual in the
world should be treated equal according to human rights principles. How
acceptable are national variations in this case, and who is to decide
(McCarthy, 1999 )? In fact, once human rights law is incorporated into
national law, to a large extent it is judges who decide, in high - profi le cases
brought by advocacy organizations precisely to test the law and extend
it in scope and detail. Human rights become a “ higher law ” to which the
policies and laws that governments make must legally conform and judges
decide whether they have done so in a particular case (Stone Sweet, 2008 ;
Nash 2009a ). Moreover, judges reviewing national law and policy increas-
ingly do so in the light of international understandings of human rights
as they have been judged in other national and international courts
(Slaughter, 2004 : 66 – 7). Test cases also offer, then, a further opportunity
for the convergence of norms across different states that support what is,
effectively, the development of a global constitution “ from below. ” A
striking example is the US Supreme Court decision in Roper v Simmons
that, though allowed in US law (by the special reservation from the
ICCPR), capital punishment for juveniles should no longer be carried out
because it is counter to “ evolving standards of decency, ” based partly on