Denmark’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.
Both posts are mainly confined to the first half of the Draft Declaration, i.e. -, paragraphs which focus especially on the distribution of powers between Strasbourg and the States.
The content of this part of the Declaration may alarm – indeed, depress – those who regarded the Brighton Declaration as controversial or unwelcome for the way it sought to get Strasbourg to operate a substantive subsidiarity approach, and perceived this to be dictating to the Court generally. ‘Depress’ – for the Draft Copenhagen Declaration:
- is an endorsement of the ‘age of subsidiarity’ agenda (although that phrase is not employed), see -; it purports to set out the States’ view on what the Court’s role should be, and lock these as coordinates for its future direction of travel, making it subject to subsequent reviews;
- more than that, it seeks to give States a greater voice, and so influence, over general advances in the case law; see -.
My position on this is that, generally speaking, it is valid for (a) to form part of the Draft Declaration’s agenda (with refinements/ moderations), less so (b), and that the Draft’s great emphasis on (a) and (b) communicates a misleading, indeed potentially dangerous impression about where priorities should lie in the reform process. Failure of national implementation and challenges to Strasbourg’s authority pose a far greater threat to the Convention’s future. The Draft Declaration should convey that message loud and clear, rather than risk implying that it is the Court which is the focal point of problems, and that it has got the system into trouble.
I examine these themes in my second post. In this post, I start by providing some comments on the overarching philosophy of the Draft Copenhagen Declaration.
As I read it, this overall philosophy can be defended on the basis that it strives for a more effective, European human rights regime. However, changes are required.
Arguably, the Draft Declaration highlights a dilemma reached over the last decade of the Convention’s 70-year evolution: some of the steps that are now required to strengthen the overall European system of human rights control (which necessitate a certain distribution of powers between Strasbourg and national authorities) can also be perceived as weakening human rights protection more generally.
The opening paragraphs (-) frame the Draft Copenhagen Declaration, setting out its philosophy.
We are told that this latest Declaration will form part of the reform process commenced at Interlaken in 2010, with the Declarations to date being aimed at setting ‘the future direction of the Convention and ensur[ing] its viability’. Previous Declarations, have ‘clarif[ied] the relationship between the national authorities and the Convention machinery’ (). As  explains:
‘States Parties have underlined the need for a more effective, focused and balanced Convention system, where the Court can focus its efforts on identifying serious or widespread violations, systemic and structural problems, and important questions of interpretation and application of the Convention. Great emphasis has been placed on the principle of subsidiarity, by which the protection of human rights takes place primarily at the national level’.
The results achieved to date are commended, but the challenges ahead noted. To that end, ‘States Parties remain committed to periodically reviewing the effectiveness of the Convention system and taking all necessary steps to ensure its effective functioning’ .
Thus, the Draft Copenhagen Declaration is envisaged as forming part of a stocktaking process occurring as we look to the review of the ECHR to be undertaken (by the Committee of Ministers) before the end of 2019 (as foreseen by the Interlaken Declaration). With that deadline approaching, one of the Draft Declaration’s ‘goal[s]’, is to address ‘current and future challenges’ () for that – and beyond.
So, what is the agenda, as the Draft Copenhagen Declaration envisages it, and what philosophy guides it?
Overarching philosophy: ‘Shared responsibility – better balance, improved protection’
The first main section of the Draft Declaration sets out the overarching philosophy: ‘Shared responsibility – better balance, improved protection’.
The reform process as it has unfolded to date is commended, for ‘the creation of a workable model for the respective roles of the States Parties and the Court, based on a shared responsibility’: this is heralded as ‘a major achievement upon which future reforms can build’ (, emphasis added).
Paragraph 10 then seeks to justify why this new, ‘workable model’ fits with the Convention scheme:
‘Emphasising the importance of human rights protection being secured and determined at national level is consistent with the object and purpose of the Convention. It is also a natural step in the evolution of the Convention system. It reflects the fact that the Convention has been incorporated and, to a large extent, embedded into the national legal systems of States Parties. At the same time, the Court has formulated general principles for the interpretation of the Convention rights. Thereby, the conditions have been created for increasingly bringing human rights home’.
The Court’s application of the subsidiarity principle in case law of recent years is welcomed and thoroughly encouraged. The Draft Declaration goes on to invite the Conference of States parties to:
 Affirm[s] the importance of securing the ownership and support of human rights by all people in Europe, underpinned by those rights being protected predominantly at national level by State authorities in accordance with their constitutional traditions and in light of national circumstances.
Against the above background, and skipping ahead to -, milestones for the Committee of Ministers’ review of the Convention’s future are envisaged:
- there is the end of 2019 review envisaged by Interlaken, which the Draft Declaration looks to as a basis ‘to evaluate the effectiveness of each part of the Convention system, taking into account such reforms that remain in train’ [81, emphasis added].
- However, the Draft Declaration also calls for the Committee of Ministers, ‘before the end of 2020, to set a process for responding to this evaluation and a timetable for the preparation and implementation of any further changes required, including the examination of the effect of Protocols No. 15 and 16 five years after their entry into force’ [82, emphasis added].
Hence, the Draft Declaration looks beyond the current Reform decade. It broadens its scope from the emphasis on coping with the caseload crisis (the main spur for Interlaken, 2010), to the functioning of the overall system of European human rights control, including the Court’s role in relation to national authorities.
Summing up, then, the Draft Copenhagen Declaration proceeds on the basis of ‘Shared responsibility – better balance, improved protection’ (emphasis added), as follows:
Point of departure: an evolving (not necessarily, totally new) landscape of European human rights protection has been endorsed by the reform Declarations, to include Copenhagen (forthcoming); it is claimed this offers the prospect of, ‘improved protection’.
Way ahead: upon this basis, the Draft Declaration purports to justify why it is appropriate and correct that Strasbourg should adopt a residual position compared to national authorities, emphasising subsidiarity, and the role of the States. It proposes a roadmap for this, and forthcoming reviews of the same.
The subsequent paragraphs – - – of the Draft Declaration follow up and expand upon this, under three subsequent sub-headings, as shall now be observed.
Components of the ‘Shared responsibility – better balance, improved protection’ agenda: (i) national implementation and (ii) Strasbourg subsidiarity
Component one is found under ‘National implementation – the primary role of States’.
Here several paragraphs (-) echo previous reform Declarations by reiterating the fundamental importance of national implementation. As such, the brevity of my comments on this part of the Draft only reflect the fact that the issues raised in this section of it are likely to be familiar to those aware of the reform process.
That said, one observes that inadequate national implementation is described as ‘among the principal challenges’ (, emphasis added) confronting the Convention system. This is emblematic of a fault with the Draft Declaration: viewed objectively, failures of national implementation, are, have been and will remain for years to come the biggest issue facing the Convention system. That matter dwarfs the ‘better balance, improved protection’ agenda as regards the Court’s review role, yet it is the latter which the Draft Declaration is preoccupied with.
So, for example, as for component two, the next section of the Draft Declaration comes under the sub-heading, ‘European supervision – the subsidiary role of the Court’. It purports to articulate in broad-brush terms what Strasbourg’s job is, but puts special emphasis on what it is not.
Strasbourg provides ‘a safeguard for violations that have not been remedied at national level and authoritatively interpret[s] the Convention’; however, ‘[i]t should not take on the role of States Parties’, their role being to ‘ensure that Convention rights and freedoms are respected and protected at national level’ . The next paragraphs echo (to some extent, but not always fully accurately, or with sufficient nuance) some leading Strasbourg rulings of recent vintage, stating:
States Parties enjoy a margin of appreciation in how they apply and implement the Convention, depending on the rights and freedoms engaged and the circumstances of the case. National authorities have democratic legitimacy and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight.
The principle of subsidiarity underpins the way in which the Court conducts its review. If a genuine balancing of interests has taken place at the national level, it is not the Court’s task to conduct the proportionality assessment afresh. Where domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and the Court’s case law, and adequately balanced the interests at stake, it is not for the Court to substitute their assessment with its own, unless it has identified strong reasons for doing so.
It is widely accepted that the Court should not act as a court of fourth instance, nor as an immigration appeals tribunal, but respect the domestic courts’ assessment of evidence and interpretation and application of domestic legislation, unless arbitrary or manifestly unreasonable.
Paragraph  takes  further still (indeed, takes it to any unnecessary extreme) in the context of asylum and immigration decisions.
Based on the above, the Draft Declaration proposes that the Conference of State Parties in Denmark:
Welcomes that the Court has engaged in a process of more robustly applying the principle of subsidiarity and the margin of appreciation in its case law, thereby supporting the development towards an increased sharing of responsibility for the Convention system and providing important incentives for national authorities properly to fulfil their Convention role.
Strongly encourages the Court to continue this development in a coherent way.
Component (iii): Interplay between national and European levels – the need for dialogue and participation
The third component in the Draft Copenhagen’s ‘Shared responsibility – better balance, improved protection’ agenda comes under the heading, ‘Interplay between national and European levels – the need for dialogue and participation’. This starts with two propositions purportedly related to improved protection:
‘For a system of shared responsibility to operate effectively there must be a well-functioning interplay between the national and European levels’.
‘This requires an ongoing constructive dialogue between States Parties and the Court on their respective roles in applying and developing the Convention’ [31, emphasis added].
It seems that what is being said here, is that some features of the landscape required for effective ‘shared responsibility’ are missing (it is claimed), or at least need improving, particularly having in mind the Court’s capacity to creatively interpret the Convention. More bluntly: given the power the Court wields, States should be able to hold the Court to account more.
Of course, it is not put as explicitly as that, but the point just made is evident from  (Strasbourg case law, ‘develops the Convention and has a significant impact on policy questions of importance to States Parties and their citizens’; this, ‘should go hand-in-hand with an ongoing dialogue in which States Parties and their populations are appropriately involved, including civil society’).
Upon this basis, subsequent paragraphs elaborate on how ‘dialogue and participation’ should be improved. The Draft Declaration asserts that:
‘An increased dialogue on the general development of case law in important areas, which should take place with respect for the independence of the Court and the binding character of its judgments, can 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. It will also anchor the development of human rights more solidly in European democracies.’ [33, emphasis added].
The implicit claim – assertion? – is that Strasbourg needs a helping hand here, for the greater good identified in the last sentence.
What type of helping hand? There is a call for greater recourse to Third Party interventions before the Court, and developing systems which will allow stakeholders (especially States) to foresee and engage with important case law developments before they materialise, especially at Grand Chamber level. The idea is touted that States Parties other than a respondent State could indicate their support for a chamber case to be reheard by the Grand Chamber, which the GC Referral Panel may take account of .
Then comes a more radical turn, whereby it is suggested that the Conference issuing the (Draft) Declaration:
Encourages States Parties to discuss the general development of areas of the Court’s case law of particular interest to them and, if appropriate, adopt texts expressing their general views. Such discussions, as well as possible texts adopted, may be useful for the Court as means of better understanding the views and positions of States Parties. Such discussions should respect the independence of the Court.
Decides, therefore, in continuation of the 2017 High-Level Expert Conference in Kokkedal, as a pilot project, to hold a series of informal meetings of States Parties before the end of 2019, where relevant developments in the jurisprudence of the Court can be discussed, with input of other relevant actors, and appreciates the Danish Chairmanship’s invitation to organise and host these meetings.
Shared responsibility? Better balance? Improved protection’? I address some of these questions, and comment on the Draft Declaration’s philosophy in my second posting (to come).