The Copenhagen Declaration (April 2018) – first thoughts (Ed Bates, Leicester, UK).

cph picAfter the draft version of the Copenhagen Declaration (February 2018) excited considerable reaction and lively debate on various blogs, we now have the final version (simply entitled, it seems, ‘Copenhagen Declaration’, April 2018). Here are some first thoughts:

–          The final text is very different to that of February, which was heavily criticized. We now have a Declaration that is, for the greater part, well-balanced and realistic in how it envisages Strasbourg’s role and function. Not unlike Brighton 2012, perhaps Copenhagen may be seen as communicating reassuring messages to those States where the Convention is already genuinely embedded, and applied in good faith, yet where strains in national-Strasbourg relations may have been emerging in recent years.

–          In that respect, the central messages remain similar to February Draft; happily, however, those elements that were perceived as threatening the Court’s authority (an overreaction to the strains?) have been toned down – considerably. (Note also, for example, para 10: ‘strengthening the principle of subsidiarity is not intended to limit or weaken human rights protection, but to underline the responsibility of national authorities to guarantee the rights and freedoms set out in the Convention’).

–          As to what those central messages are, the first main section of Declaration entitled, ‘Shared responsibility – Ensuring a proper balance and enhanced protection’, frames matters. The tone is that ‘Shared responsibility’ is the key to ‘ensuring a proper balance and enhanced protection’ of Convention rights.

So, what does the Copenhagen Declaration’s understanding of ‘Shared responsibility’ entail?

First and foremost, the onus lies on the States to implement the Convention and execute judgments – early sections in the Declaration make this crystal clear, placing these issues centre-stage, and largely consolidating what has been said in previous Declarations;

In terms of Strasbourg’s role, at the risk of over-implication one may say that the notion of ‘shared responsibility’ endorsed by Copenhagen is very much in keeping with the ‘age of subsidiarity’ agenda. The Declaration does not say this expressly; however, it would seem that those who had a hand in drafting paragraphs 8, 9 and 10, and para 28, for example, were influenced by this school of thought (and correctly so, I believe).

‘European supervision – the role of the Court’

As to paragraph 28 of the Declaration, coming within the section  entitled ‘European supervision – the role of the Court’, this is likely to attract much attention. What should one make of it?

As this part of the Declaration now stands, I would suggest that those who are generally supportive of what has been labelled Strasbourg’s ‘age of subsidiarity’ jurisprudence are likely to view what is said as an appropriately balanced statement regarding Strasbourg’s review role in relation to the States.

On the one hand, and very importantly, paragraph 28 confirms that the Court ultimately decides what is, and is not permissible, under the Convention (see the last sentence of [28]). Even States faithfully implementing the Convention are not immune from Strasbourg review.

On the other hand, the relevant paragraph underline how, when approaching its review role, the Court pays great respect to the reasonable, balanced and engaged (with Strasbourg) decisions of democratic States on human rights matters. That is what the ‘age of subsidiarity’ jurisprudence is largely directed to, as it has developed in the period since the Brighton Declaration, in particular. Arguably the Copenhagen Declaration endorses this, and seeks to consolidate this thinking into the Convention’s future trajectory. Personally, I welcome this.

Provisos looking forward (the onus is now on the States)

I do, however, have some provisos. They relate less to the final text, and more to how we arrived at it, and what happens next.

In many respects one has the feeling that the Copenhagen Declaration speaks especially to those States where the Convention is already genuinely embedded, and applied in good faith, yet where strains in national-Strasbourg relations may have been emerging in recent years. Of course, keeping those States ‘on side’ (not at any cost, obviously) is vital to the future success of the Convention, and it seems to me that Declaration reflects such realities, and strikes suitable balances.

A first proviso, however, is that it is, in my opinion, regretful that so much energy and attention has had to be put into the endeavour just referred to in the first place. Did it create the false impression for some that there was a major problem with Strasbourg that needed to be rectified? In reality, I do not think there was a problem, especially when one looks to Strasbourg’s, post-Brighton ‘age of subsidiarity’ judgments, in particular.

Thus, the Declaration is to be welcomed in that ultimately it has ended on a relatively positive note, and given the point of departure (i.e. the February Draft). And, as I say, to the extent that it endorses the ‘age of subsidiarity’ agenda – a conditional agenda, requiring proper, good faith engagement with Strasbourg, encouraging embedding of Convention rights within States -, this is a good thing.

That said, the second proviso is as follows. Having settled the above – having stamped ‘age of subsidiarity’ upon the road map ahead – it must be hoped that the States will now put their full energy, effort and attention into backing the Convention system going forward. This necessarily means full political support for the Convention system as regards the States’ duty to implement the Convention and execute judgments – the first part of ‘shared responsibility’, and the foundation stone upon which the viability of the Convention must rest.

In this last connection, if the signature tune of the Copenhagen Declaration is that of ‘Shared responsibility – Ensuring a proper balance and enhanced protection’, it must be hoped that the ‘shared responsibility’ and ‘enhanced protection’ aspect is also seen from its wider aspect. I refer to the collective duty of States to maintain human rights across Europe, in the sense that the Convention institutionalises a collective commitment to the rule of law and European democratic values in the field of human rights.

That collective duty entails a responsibility to adequately finance the Convention system, and to back it when it is confronted with the types of very serious violations that have been witnessed in some quarters of Europe in recent years.

Thus, the Copenhagen Declaration is to be welcomed. However, now that it is in place, we look to the States’ collective support for the operation of the ECHR going forward, and especially when the human rights issues at stake are recognised by everybody as lying at the core of what an international system of protection should be achieving. This responsibility too is shared and collective.

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The Draft Copenhagen Declaration (Part 2): towards a stronger ECHR system? (Ed Bates, University of Leicester)

 

In my first post on the Draft Copenhagen Declaration I limited my focus to the first part of the same, highlighting the overarching philosophy of the Draft. I now offer some broader comments (still focussing on the first half of the Declaration).

draft cph dec textThe general narrative of the Draft Declaration is that ’improved protection’ will be obtained by achieving ‘better balance’, in terms of the distribution of powers which the Draft proposes to endorse, which involves an emphasis on Strasbourg’s mainly residual role.

That fits with the various speeches made by members of the Danish government, which preceded publication of the Draft. It is well known, however, that the backdrop was one of political frustration with, and criticism of Strasbourg by the Danish government. Going back, concern was expressed about the ‘living instrument’ doctrine, and general criticism directed at Strasbourg law, especially in relation to immigration matters (and, in particular, a domestic case constraining deportation, which obtained some notoriety). Some of the speeches allude to this.

As such, it is valid to at least ask questions about the inspiration for the Draft Declaration, and its ‘better balance’/ ‘improved protection’ agenda.

  • Has the Danish government’s (to some extent, politically-inspired) frustrations with the Convention clouded its assessment of what needs to be done, and is that reflected in the content of the Draft (without questioning the good faith nature of the initiative overall)?
  • As such, to what extent is the Draft Declaration a genuine contribution to the reform debate, of enduring significance, as it purports to be?

I respectfully suggest that, if the Draft Declaration is to fit more comfortably with the second of these, then the emphasis, tone and message communicated by it needs reconsideration. Why? Continue reading

The Draft Copenhagen Declaration (Part 1): overview/ its overarching philosophy

draft cph dec textDenmark’s Chairmanship of the Council of Europe will conclude in April. It is likely to be remembered for the critique representatives of the Danish government have offered of the European Court of Human Rights’ functioning. The relevant speeches, delivered in the Council of Europe context, may be found here. The narratives are reflected to varying degrees in a Draft ‘Copenhagen Declaration’, published in early February, in anticipation of a final version, which is expected in April (12/13th).

That Draft has attracted much attention. A consortium of NGOs issued a strong and detailed critique of it (see here, and see too, comments by the Danish Helsinki Committee for Human Rights). Few aspects of the Draft are viewed positively, the analysis offering emphatic criticism of it, and calling for significant changes. Contributions from Phillip Leach & Alice Donald, and Andreas Follesdal & Geir Ulfstein, also strike a mainly negative chord.

Mikael Rask Madsen & Jonas Christoffersen adopt a more upbeat tone citing the Court’s own Opinion on the Draft (although see Leach & Donald’s response). The latter’s Opinion  is less hostile/defensive than the critics might have expected, but this may reflect the Court’s desire to retain its distance and neutrality, although the Opinion does not avoid expressing caution and concern for some aspects of the Draft.

This post is the first of two.

In this post, I comment in the overarching philosophy of the Draft Declaration. In the second I offer my thoughts and comments on the same, asking whether the goal of a stronger ECHR system is being realised by the Draft Declaration. Continue reading

UK membership of the ECHR: continuation of ‘unfinished business’ or a window of opportunity?

18 May 2017.pngThis post proceeds on the assumption that the Conservatives will win the June election, with their manifesto commitment that withdrawal from the ECHR (‘BrECHRit’) will not occur in ‘the next Parliament’. It is submitted that such a scenario poses a threat, but also offers a window of opportunity. The threat is that there will be a continuation of what we have seen since around 2012 (if not before): the implied threat to withdraw, and heated anti-Strasbourg rhetoric every time UK-Strasbourg relations come under strain (with damaging effects on the ECHR). The opportunity is that we now have a period to push forward the case for the UK’s continuing membership of the ECHR, based on careful and informed analysis of the Strasbourg system as it functions today (not one based on dated or false narratives) and affects the UK. This information can then be drawn upon for when debate on the UK’s membership of the ECHR resurfaces, which, I contend, is highly likely to happen – unless arguments are presented in a convincing way to stop that.

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With the Conservative Party well ahead in the opinion polls, the publication of their manifesto today was met with a sighs of relief by human rights lawyers in the UK, and in Strasbourg. It states that: Continue reading

Implementation of Judgments of the European Court of Human Rights

bing 15 mayThank you very much indeed to the Bingham Centre for the Rule of Law (working with Leicester Law School) for hosting a highly interesting and informative event on the state of play regarding execution of Strasbourg judgments. The event was last night, and, I believe, a summary will appear on the Bingham web site in due course.

Merris Amos (QMUL) presented a insightful paper focussing in UK cases, against the backdrop of UK-Strasbourg relations and the domestic landscape of human rights protection; in her paper Eleanor Hourigan (Dep Permanent Representative, UK Delegation to the CoE) offered some insiders’ perspectives on the Committee of Ministers’ process ; Nuala Mole (Aire Centre) provided reflections on her long experience as a Strasbourg litigator, offering some suggestions on areas for improvement; and Prof Philip Leach EHRAC/ Middlesex University added to those perspectives with some important and graphic illustrations of why the process of execution is so important, and the challenges being thrown up.

In between I presented a paper with my own reflections on matters, especially with an eye to the Committee of Ministers’ 2016 Annual Report on the execution of judgments. In case it is of interest, here is the PowerPoint presentation that I used: E Bates Implem Judgments Bingham

‘Implementation of Judgments of the European Court of Human Rights: Opportunities and Challenges for the Rule of Law’ (Bingham Centre for the Rule of Law), 15th May 2017.

bing 15 may

On 15 May 2017, the Bingham Centre and Leicester Law School are organising an event in London, focusing on the implementation of the Court’s judgments.

Speakers at the event will discuss the UK’s record of implementation and the impact of the Court’s judgments in the UK. They will consider the UK government’s recent report ‘Responding to Human Rights Judgments’ which outlines its position on the implementation of the Court’s judgments and responds to recommendations made by the Joint Committee on Human Rights in its 2015 scrutiny report ‘Human Rights Judgments’. We will also hear a UK government perspective “from the inside” on the Committee of Ministers and its work supervising the execution of judgments.

Speakers will then consider the wider picture of implementation across the member states and will reflect on the process for the execution of judgments and the role of the Committee of Ministers in this regard.

Further details of the event, including the speakers can be found here: https://www.biicl.org/event/1258

Download the event flyer.