The European Convention on Human Rights: the draft Copenhagen Declaration and the threat to the European Court

Mar 2, 2018

An opinion editorial by Róisín Pillay, Director of the ICJ Europe Programme.

The European Court of Human Rights is once more facing a political challenge to its role, in proposals for a new political declaration put forward by the Danish Presidency of the Council of Europe.

That the Court’s extraordinary success in advancing human rights protection in Europe provokes the dissent of certain governments is nothing new. Neither is this the first time that the eight year long reform process – instigated by the Interlaken Declaration of 2010  in order to deal with the overwhelming caseload of the Court – has been the forum for political resistance to the Court’s perceived intrusion into national affairs.

The reform process has constantly navigated delicate questions of the respective powers of the Court and the Council of Europe Member States.

Notably, the UK government’s initial proposals for the 2012 Brighton Declaration Brighton Declaration posed serious threats to the independence and role of the Court, and to the right of individuals to petition it.

Ultimately, under pressure from some States as well as civil society, the most damaging of these proposals were not pursued.

However they did result in, amongst other things, the enshrining of a reference to the principles of subsidiarity and the “margin of appreciation” that states are considered to enjoy in protecting certain of the Convention rights, in the preamble to Protocol 15  to the Convention Since then, the Brussels Declaration of 2015 commendably re-directed attention to the problem that is the real root of the Convention system’s struggles: failings in effective national implementation of the Convention rights, which leave victims of human rights violations with no other recourse but to take their case to Strasbourg.

The Danish Government, which took on the rotating Presidency of the Council of Europe in 2017, has now proposed a new political declaration  on the Convention system, to be agreed at a high-level conference of Council of Europe Member States in Copenhagen in April.

A draft of the Copenhagen Declaration was published in February.  The text, while including some welcome re-affirmations of the need for enhanced national implementation measures and better execution of Court judgments, as well as strengthened selection processes for judges of the Court, also contains proposals that carry significant risks for the independence and role of the Court, and for the consistent protection of Convention rights across the Council of Europe region.

To assure the continued credibility and health of the Convention system, it needs to be significantly amended.

The draft Declaration has already faced sharp criticism, including from a coalition of  international NGOs (including the ICJ) which made detailed proposals for amendments; from Danish NGOs and from academic commentators.

The Court itself has responded cautiously refraining from strong criticism, but drawing attention to the governing framework for the role of the Court under the ECHR and to principles of judicial independence which it notes must be respected by the Declaration.

Three main elements in the Declaration are of particular concern.

First, the draft Declaration emphasises the need for “better balance” between the respective roles of the Court and Member States, based on “shared responsibility” for the protection of the Convention rights (para.11).

The Convention certainly envisages complementary roles and responsibilities for national authorities and the Court within the Convention system: it is the obligation of Member States to respect and protect the Convention rights (Article 1 ECHR) and the role of the Court to supervise this obligation.

The Court’s role is clearly set out in Article 19 of the Convention, as “to ensure the observance of the engagements undertaken” by States under the Convention.

Article 32 establishes that the Court’s jurisdiction in doing so extends to “all matters concerning the interpretation and application” of the Convention rights.  The much contested doctrine of the “margin of appreciation” developed in the Court’s jurisprudence applied by the Court in respect of certain rights or aspects of rights only, does not in any way displace or diminish this jurisdiction.

The draft Declaration however, seems to allow for more qualified role, based on an unduly wide interpretation of principles of subsidiarity and the margin of appreciation.

The draft emphasises that the Convention rights should not only be secured at national level, but also “determined” there (para.10) and that rights should be protected “predominantly at national level by State authorities in accordance with their constitutional traditions and in light of national circumstances,”  a proposition that appears to leave room for varying standards in the protection of the Convention rights, contrary to the principle of universality.

Startlingly, given the only too evident, continuing occurrence of sometimes grave and systematic human rights violations within the Council of Europe region, the draft Declaration confidently asserts that this new emphasis on national adjudication is a “natural step in the evolution of the Convention system” given that the Convention is now well embedded in national legal systems (para.10).

The second aspect of the draft Declaration worthy of particular scrutiny is proposals addressing the “subsidiary rule of the Court”. The principle of the subsidiary nature of the Convention system is long established in the jurisprudence of the Court.

It recognises that national authorities are best placed to evaluate local needs and conditions in the implementation of human rights, but also that such implementation must always be subject to the Court’s review.

The draft Declaration posits a notion of subsidiarity that appears to restrict the Court’s role, however, stating (without qualification as to the nature of the rights or aspects of rights concerned) that: “the Court … should not take on the role of States Parties whose responsibility it is to ensure that Convention rights and freedoms are respected and protected at national level.” (para.22) Singling out asylum and migration cases, it asserts that where national procedures in these cases operate fairly and in respect for human rights, the court should only intervene “in the most exceptional circumstances”. (para.26) In the context of a political declaration, such language appears to question the scope of the Court’s role under Article 19 of the Convention.

It is all the more concerning because it is followed by direct calls on the Court to apply more “robustly” the principles of subsidiarity and the margin of appreciation.

These are principles of judicial interpretation, whose application should be a matter for the Court alone; in seeking to direct the Court as to their nature and scope, the draft Declaration fundamentally misconstrues the role of the judiciary under the rule of law.

Finally, the most disturbing passages of the draft Declaration are those that promote the idea of a “dialogue” between Member States and the Court.

The draft declaration proposes “an ongoing constructive dialogue between States Parties and the Court on their respective roles in applying and developing the Convention” (para.31) and “an ongoing dialogue in which states and their populations are actively involved” (para.32).

Such dialogue would “give a clearer picture of the general views and positions of governments and other stakeholders, thereby solving some of the challenges of developing the Convention over time [and…] anchor the development of human rights more solidly in European democracies.”

Although the draft also stipulates that such dialogue should take place “with respect for the independence of the Court and the binding character of its judgments”, this qualification rings hollow against the background of the proposals made; the risk that that they could facilitate inappropriate political pressure on the Court regarding specific cases, principles or standards, is clear, and is difficult to avoid.

Of course, the Convention system already allows space for the views of Member States on regional human rights standards to be expressed – a “dialogue” of sorts – within the bounds of constitutionalism.

First, Member States can continuously shape and develop Council of Europe human rights standards through standard setting in the Committee of Ministers.

In individual cases before the Court, they also have wide powers to put forward their views through third party interventions.

“Dialogue” between governments and an independent court outside of these spheres is however no more appropriate than it would be within a national system.

The court’s proper interlocutors in any exchange of views between the national and regional levels are national courts, with which it has already established fruitful dialogues.

It is disappointing to see basic principles of the rule of law such as the independence of the judiciary being called into question within a regional human rights system designed precisely to defend such standards – and which has been so effective in upholding these standards in the region.

It is a cause for continuing concern that regional human rights systems – not only the European Convention system but also notably the Inter-American Court and Commission – increasingly face such challenges arising from the hyper-nationalist politics of their Member States.

The draft of the Declaration is of course still in its early stages and it is to be hoped that the Member States will heed the warning voices and substantially amend the Declaration.  How should they transform it? The European Convention system undoubtedly needs the political support that a high level political declaration could bring.

First and foremost, it needs a Declaration that would contain clear, specific and practical commitments from the Member States on national implementation and on execution of judgements (drawing on the language in the Brussels declaration).

This, combined with better national processes for the often complex exercises involved in executing European Court judgments, would considerably lessen the caseload of the Court.

Second, the Declaration should provide the elements the court needs to be effective in exercising its supervisory role: strong political re-affirmation of support for its role and independence; commitments for sufficient additional resources to deal with its caseload effectively, and improved judicial selection procedures that will ensure that the best candidates can be appointed to the Court and can carry forward its vital work.

It is this last point, as ICJ and OSJI have argued in a recent report on selection of judges for regional human rights courts, can truly ensure that future of the system is strengthened from within.

These issues are already addressed by the Copenhagen Declaration – they should be placed at its heart, and the text that threatens the independence and role of the Court should be discarded.

As negotiations on the Declaration continue, there is still time for it to make a positive contribution to the future of the Convention system.

This opinion editorial can also be found on opiniojuris.org