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

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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