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).
The 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?
Failure of national implementation and declining authority as *the* major issues
Whilst some recognition of the ‘better balance’/’improved protection’ agenda is merited, there is too great an emphasis on that, the residual role of the Court and ‘dialogue and participation’ (for coverage of each, see my previous post). This risks detracting from issues that are far bigger and more pressing for the Convention’s future: failures in national implementation (not merely ‘among the principal challenges’ (, emphasis added)), and threats to the Court’s authority.
The Court’s Annual Reports, those of the Committee of Ministers on Execution of Judgments, and of the Parliamentary Assembly, plus repeated statements by figures such as the Secretary General of the Council of Europe addressing the Convention’s plight etc. all demonstrate that inadequate national implementation (in certain States) is by far and away the most important issue facing the Convention today. Arguably, this has been so for the last 10, if not 20 years; and it looks to be so for potentially many years to come. Indeed, it was failures in national implementation, and the knock-on impact that this was having on the Court’s case load, and so its ability to function, that prompted President Costa (2009) to launch the reform process in the first place. That was the main context to his use of the phrase ‘improved protection’ and ‘shared responsibility’ (between the Court and the States).
Recent speeches delivered by the Council of Europe’s Secretary-General (Mr Thorbjørn Jagland) and by its former Commissioner on Human Rights (Nils Muižnieks), point to an aspect of the picture unforeseen when Costa called for the States to give the Convention a ‘second wind’ (his term) of support. Jagland and Muižnieks warned against tendencies (in some quarters) to resist implementation of certain judgments – an insidious agenda that threatens to radiate negativity into the Convention system generally. The former spoke in 2015 of a ‘growing political threat’ to the ECHR. As he put it:
’[t]here have always been those who challenge the authority of international institutions, but these forces have slipped into the mainstream – and they are gaining traction. When we join the dots, the danger to our Convention system begins to feel very real indeed’.
Muižnieks (2016) stated that the two challenges which particularly ‘struck’ him were: ‘firstly, prolonged non-implementation of a number of judgments of the European Court of Human Rights and secondly, direct attacks on the Court’s authority’.
Presumably those States which are failing in their duty of national implementation, and who are not opposed to the shift to the ‘mainstream’ Jagland referred to, may welcome the Draft Declaration’s current emphasis on ‘Shared responsibility etc’.. That is, if the Declaration conveys a message that failures on the Court’s part are just as much the problem, those with sinister agendas against the Convention can emphasise this, in order to detract from the more serious issues just noted.
Of course, I am certainly not suggesting that this is the Danish government’s intention. However, I hope that the structure and balance of the final Declaration might be changed to reflect – and state expressly – that national implementation is the absolute number one priority, and to robustly condemn the trends Jagland and Muižnieks identify.
These aspects should be highlighted in the early sections/ paragraphs of the Draft to unequivocally demonstrate their paramount significance in the ‘pecking order’, with these elements also to be made subject to any future Convention “stock-taking” reviews envisaged.
After that, the section of the Draft dealing with Execution of Judgments should follow, and only then a section going to the Court’s supervisory/ review role, i.e. the subsidiary role of the Court.
On the subject of Execution of Judgments, due credit should be given for what the Draft Declaration says about this (described by the Court as an area of ‘critical importance’: cf the Court’s Opinion on the Draft Declaration, at ], especially as it stresses that this issue is intimately related to the authority of the Court and the credibility of the system. For example, it is to be welcomed that the Draft reads:
The full, effective and prompt execution of judgments and a strong political commitment by the States Parties in this respect strengthen the authority of the Court and the Convention system in general and have a profound influence on the Court’s caseload by preventing repetitive applications.
A failure to execute a judgment in good time can negatively affect the applicant(s), create additional workload for the Court and the Committee of Ministers, and undermine the authority and credibility of the Convention system. Such failures must therefore be squarely confronted.
I also regard it as potentially constructive that there is a call for an annual debate before the Committee of Ministers (meeting at ministerial level) to:
‘take note of and debate a report setting out serious instances of the non-execution of judgments, according to predefined criteria, and to ask for the relevant States’ response’, .
‘Potentially’ – for what counts, of course, is how this report and debate proposal work out. This new initiative would need to be conducted in the spirit of the first two paragraphs of the Draft Declaration, which attest to the States’ overall commitment to the Convention, and need to keep the system effective.
(See also  regarding assistance to be offered in relation to pilot judgments).
The ‘Shared responsibility – better balance, improved protection’ agenda
Coming back to the ‘Shared responsibility – better balance, improved protection’ agenda (as discussed in my first post), what should we make of that?
Attacks on Strasbourg independence?
Is any attempt on the States’ part to identify how they envisage the appropriate role for the Court, and purporting to identify certain limitations on that, an unwarranted attack on Strasbourg’s independence?
I would not go as far as that (and, see the Court’s careful words on the ‘independence’ aspect in its Opinion, at , last sentence).
Of course, the Draft Copenhagen Declaration is not the first time this issue has arisen. Here recall the build up to the Brighton Declaration of 2012, which included an initial (leaked) Draft of the same (see, for example, here ), with certain proposals in relation to the Court’s review function. Readers will be aware of the final Declaration, which foresaw Protocols 15 and 16 (see, generally, here).
Perhaps we should not be surprised that, once the door to the question of reform was ajar, a debate started to unfold regarding the appropriate distribution of powers between Strasbourg and those States which are faithfully applying the Convention. That was not the reason former President Costa called for the Interlaken Conference of 2010; then again, perhaps the twist that occurred was not entirely unanticipated. Back in 2009, when envisaging the ground to be covered at the Interlaken Conference, Costa stated (p 3):
‘After fifty years’ existence, we now need to look to the future of the Court. To do this the relationship between the Court and the national authorities has to be defined with maximum clarity. In carrying out that exercise it is necessary to identify and respect the roles that both the national authorities and the Court must play within the Convention system. States and the Court have the same objective, namely securing the rights guaranteed under the Convention and its Protocols’.
He went on:
‘The States should ask themselves the following questions: what sort of Court of Human Rights do they want for the future? What sort of machinery are they prepared to finance? What should it deal with? There can be no question of modifying the substantive rights and freedoms guaranteed by the Convention; the aim is to reaffirm the principle of the right of individual application, while being fully aware that the Court cannot deal with everything in the way that it deals with it today. Yet how can that basic principle be preserved while ensuring that it remains effective, in other words that the Court can process and adjudicate with sufficient speed well-founded and in particular serious allegations of human rights abuses? At the same time it is necessary to ensure that the Court maintains the quality and the coherence of its case-law’.
(See, also, Costa’s comments on ‘independence’ at p 1).
It was clear that Costa was not envisaging steps that would be destructive of vital features of the system. And, of course, what he said should not be taken as meaning that it would be completely up to the governments of the States which happened to be in power in the 2010s to reframe a Convention system that had lasted for over half a century, indeed is now close to 70 years’ old.
Indeed, given the Convention’s long history, one might even ask whether those governments would be entitled to do that (even if legally they could attempt to do so); are they not, instead, more temporary custodians of the Convention system, with a duty to hand it over in good order to subsequent generations? [Danish PM quote]
So, for me it is clear that there should be limits to what the States can do, for a point will be reached when their endeavours can genuinely be criticised as affecting the credibility and authority of the very system they claim to be protecting. At the same time, we observe that former President Costa was calling for action to save the Convention system. And, as we know, a succession of reform Conferences and Declarations followed that call.
If so, does what is said in the Draft Copenhagen Declaration constitute a reasonable and valid approach for the States to be proposing?
I suggest that, with some refinements, the ‘European Supervision – the subsidiary role of the Court’ section of the Draft can. I say that – and I wish to stress this point – not because I wish to weaken human rights (although I fear some will see it that way), but because the agenda is credibly directed to strengthening the Convention system, and so preserving the Court’s overall capacity under Article 19, ECHR in the longer-term.
Strengthening the system? Background considerations
Why does the system need strengthening?
An unavoidable feature of the Court’s jurisdiction is that it is not integrated into the national legal orders (its jurisprudence may be, to varying extents; but not the Court itself, of course). Strasbourg is an international institution, not a Constitutional Court for Europe in the field of human rights; so, it must sit in a relationship with, potentially, 47 States, each with their own sovereign Parliaments and Supreme/ Constitutional Courts.
Indeed, from one angle the fact that the Court has progressed as far as it has is quite extraordinary. The former Deputy Registrar of the Court, Michael O’Boyle (2000) once referred the ‘emergence of the authority of the European Court of Human Rights’ as ‘one of the most remarkable phenomena in the history of international law, perhaps in the history of all law’.
The point is underlined by the writing of Hersch Lauterpacht in the 1940s, as he probed the case for an international law of human rights. He wished to see that realised, yet he regarded any attempt to ‘translate the idea of an International Bill of Rights of Man into a working rule of law’ as ‘fraught with difficulties which disturb orthodox thought to the point of utter discouragement’!
One difficulty Lauterpacht foresaw would be how to get sovereign States which already regarded themselves as good at protecting human rights, to join an effective system, which would be one safeguarded by a Court able to deliver binding judgments. Would the States be willing to put their faith in such international arrangements? On that there was no means of ‘excluding the operation of the human element’ – the judge. Yet, an international judge or a domestic one? States would ,understandably, be concerned:
‘Within the same national group there exist restraints upon the unavoidable power of judges: these are the community of national tradition, the overwhelming sentiment (from which judges are not immune) of national solidarity and of the higher national interest, the corrective and deterrent influence of public opinion, and, in case of a clear abuse of judicial discretion, the relatively speedy operation of political checks and remedies. None of these safeguards exist, to any comparable extent, in the international sphere. All these difficulties reveal the implications of the proposal to confer such powers, in relation to the very basis of the national life of sovereign and independent States, upon a tribunal of foreign Judges’ (Lauterpacht, 1945).
The point of this historical digression is that I believe what Lauterpacht stated has some relevance for the Convention system as we view it today, and, in particular, the ‘Shared responsibility – better balance, improved protection’ agenda.
This is not to say that what Lauterpacht said above is sacrosanct (indeed, some points he made can be turned into arguments as to precisely why we need a European check, beyond the State). Nor do I regard what he had to say as supporting everything in the Draft Copenhagen Declaration.
Nonetheless, it must be true that the system of the ECHR will become weaker if its Court is perceived (note the emphasis) to be an activist institution, too far detached from national contexts, and if the perception is that it lacks legitimacy in some respects. The Convention system simply could not survive if national authorities were not willing to cooperate with the Court, and engage with its jurisprudence.
As such, a key question is to ask how such cooperation can best be achieved, whilst respecting core ideals of the system, for the greater good and durability of it overall, into the 2020s and beyond. (In this connection, some comparisons may be made with certain comments offered by Gertrude Lübbe-Wolff [Justice of the Federal Constitutional Court of Germany]; see here).
Balance is required. Obviously, striving to achieve cooperation can only go so far; the Convention system cannot just roll-over in the face of State pressure, and most certainly what has just been said should not mean Strasbourg kowtowing to States.
At the same time, how the Court’s role is identified, and its relations with national authorities, is very important. I see the Draft Copenhagen Declaration as striving to make that point: that part of the route to ‘improved protection’ under the system overall is for the Court to adopt a certain relationship with States that faithfully apply the Convention, by adopting certain stances.
Perhaps the Draft Declaration goes too far in pursuit of this, and certainly some refinements to the text would be welcome; however, what is said in - for example, echoing aspects of the case law, to some extent, has clear logic to it.
As a general rule, if national authorities are doing more to properly apply the Convention, then one would expect less of a role for Strasbourg. Indeed, the former’s confidence in the system might be undermined if that were not so (in the 1990s Convention States were encouraged to incorporate the Convention: in part, to enable Strasbourg to operate subsidiarity effectively). That confidence – the need to retain it and avoid perceptions such as those alluded to above (an activist institution) – and perceptions about a lack of appropriate safeguards (cf Lauterpacht’s comments above, re ‘safeguards’) may necessitate the Court not only adopting a subsidiarity approach in practice, but, today, being seen to do just that.
Why so, and why today?
I would argue that, unfortunately, the necessity to be seen to cooperate in this way is greater today than ever before. We have come a very long way since a former Registrar of the Court (Heribert Golsong) felt able to say (in 1987):
‘The Court acts with great authority; in Western Europe, it is perceived as the preeminent authority over those matters usually covered by the catalogues of civil rights and freedoms in national constitutions’.
Also in 1987, Judge Walsh (‘Irish’, Strasbourg judge) stated that he ‘believe[d] it would now be politically impossible in most countries to withdraw from the Convention, as it has captured the minds of the public to a great extent’.
One may compare this to the words of the Vice-President of the Venice Commission (Jan Erik Helgesen) in 2011: he feared that
‘we have left the governments behind’, and that the expansive dynamism of international human rights law had ‘created some kind of a backfire effect’, resulting in ‘a lack of trust between many governments and the international supervisory bodies’.
He was referring to international human rights law generally, but also to the Convention system (indeed at the Strasbourg Court).
So, I suggest, we are now in a different era. One in which some of the Court’s natural allies – even some original ECHR signatories – seem prepared to question Strasbourg, as Jagland and Muižnieks note.
To be crystal clear, I do not celebrate or defend that. I observe, however, that in the UK, for example, it may be no coincidence that growing criticism has occurred after a decade or so of the Convention being very faithfully incorporated.
Certainly, that is not in itself a reason for strains in the UK-Strasbourg relationship, and, to be absolutely clear, much of the criticism has been in pursuit of inappropriate /political agendas (which, of course, I do not defend). However, the Court’s overall, beleaguered situation – the gigantic caseload and talk of implementation crisis – perhaps makes it more vulnerable today than it has been in its history.
For example, in the UK some politicians critical of Strasbourg have asked rhetorically why the UK should accept certain Strasbourg rulings, when, it is claimed, other countries apparently ignore them (evidence of which, it was said, in the gigantic caseload and implementation crisis). A not dissimilar point was made by the Danish Prime Minister (see here, at p 3).
To be clear, once again, I do not defend such stances, and appreciate (and say with respect) that they reveal a misunderstanding of the Convention (for example, implementation in your own country is not conditional on that occurring elsewhere). Sadly, however, the stances reveal that the system is being questioned for its effectiveness: is a crack emerging, that threatens to spread?
Strengthening the system: what direction now?
I suggest this is of relevance to what the Court should realistically expect to achieve in the environment of the 2010s (very different to the 1980s and 1990s), and so why a careful approach to its relationship with national authorities that make genuine efforts to faithfully apply the Convention is merited, and might be openly recognised for the sake of their confidence in the system going forward.
Yet more caveats apply here: what has just been said does not mean that faithful States obtain immunity from Strasbourg review (cf Court’s Opinion, at ); of course, not.
Moreover, where lines of jurisdiction are drawn between national sphere and Strasbourg on this will be crucial (cf Court’s Opinion, at -: correctly saying, in effect, that Strasbourg review is context dependent and there should be no one-size-fits-all approach). I suggest that, in this regard, it is far better for the Court to work this out incrementally, and to be trusted to do so (it is already doing it), rather than have too much dictation from States.
That said, I wonder if we have arrived at stage when – like it or lump it, so-to-speak, and because of the Convention overall plight – there is some tension between, on the one hand, the imperative of keeping the ECHR system sufficiently strong (one component of which is the need to reinvigorate State confidence in it, for some States at least), and, on the other, Strasbourg’s authority to deliver (substantively-speaking) strong, path-breaking human rights judgments in fields related to social policy that remain contentious. Those who see the priority to be the former may be more disposed to Strasbourg operating a form of ‘substantive subsidiarity’ (to retain strength in the system, amongst other reasons); those in favour of the latter may be less inclined to accept that.
Does some (not all) of the criticism of the Draft Copenhagen Declaration illustrate this tension?
I recognise that the need to strengthen the system should not necessarily affect the Court’s capacity to deliver path-breaking human rights judgments in fields related to social policy. Then again, I come back to the special nature of Strasbourg’s jurisdiction: it sits above 47 sovereign jurisdictions, and, is reliant, in practice, upon achieving their consent and cooperation. In the past, the former President of the Strasbourg Court, Luzius Wildhaber, has been critical of some of the Court’s proponents who ‘believe that [it] conceives of its mission as being at the forefront of progressive development, to act as a sort of a[n] indefatigable, widely visible human rights locomotive’ (2013).
Are we now at a stage when the locomotive’s drivers should be very pleased as to how far they have travelled, and the rail network now in place? But should they also be conscious that the load they carry today, and the carriages connected up to it, may demand reconsideration of some aspects of how the train can proceed today, compared to 20 years ago?
Refinements and important changes
What I have just stated does not mean that some important refinements to the ‘European Supervision – the subsidiary role of the Court’ section of the Draft, plus other amendments, would not be in order.
Very importantly, - should highlight more clearly that the approach advocated to subsidiarity and, especially, the margin of appreciation, is conditional (cf Court’s Opinion, at ): what is said is reliant on the proper, good faith application of Convention standards at the national level in the first place. Such conditional or due deference would speak to the last line of  of the Draft, which refers to an ‘increased sharing of responsibility for the Convention system and providing important incentives for national authorities properly to fulfil their Convention role’ (emphasis added).
As to other points: the impression should not be left that human rights matters should be determined by majority, popular views or positions, or that constitutional traditions can automatically trump European human rights law (which one reading  of the Draft might imply). Furthermore, what is said in relation to immigration law matters ( & ) dilutes the Court’s role unacceptably (cf the Court precise phraseology in Ndidi v UK (hudoc) 2017, para 76).
More generally, a genuine and sincere contribution to the reform process, endeavouring to strengthen the longer-term viability of the system, should not create new mechanisms that risk challenging one of its most precious – but also delicate – assets: the authority of the Court.
Here I am inclined to agree with the views expressed in the Joint NGO Response, that certain of those aspects of the Draft addressing ‘dialogue and participation’ (most notably -) are unnecessary, even dangerous (recall here Jagland’s speech: ‘growing political threat’ to the ECHR). This aspect gets an at best lukewarm reception from the Court (cf Court’s Opinion, at ). Opportunities for dialogue already exist, and their functioning can be improved. (On this aspect, see, also, very recent comments by Lize R. Glas, here)
Mikael Rask Madsen and Jonas Christoffersen make some persuasive points about the backdrop to the proposal, highlighting the fact that Strasbourg sits in relative isolation from other constitutional actors (such as a national Parliament) with whom, at domestic level, a level of dialogue and participation would be expected to occur. They are correct in that, I think.
That said, for me the isolation point (of relevance too to the Lauterpacht quote above) underlines why the Court should recognise the need for judicial self-restraint, which, I suggest, its shift of emphasis to the ‘age of subsidiary’ agenda very much reflects. That shift should itself reduce the need for greater checks and balances in the system and help inform the following question.
Do the advantages to be gained of initiatives such as - clearly outweigh the potential risks (undue politicisation, even if  refers to respecting judicial independence and the binding nature of judgments)?
I am not convinced they do, especially given the benefits obtained by an ‘age of subsidiarity’ setting, and think that, if - do not fall, at most this issue needs consideration by an expert body (the CDDH) for a careful analysis of the pros and cons (unforeseen dangers) of the proposals.
In the meantime, I note the Draft Declaration proposes to:
‘60. Encourage[s] the Court to ensure that the interpretation of the Convention proceeds in a careful and balanced manner that ensures an appropriate and measured development of Convention standards, including by indicating that an area should be kept under review when relevant’.
Since the Court is already doing this, the word ‘continue’ could usefully be inserted after ‘the Court’ in the above paragraph.
Conclusion: a genuine contribution to the reform process, endeavouring to strengthen the longer-term viability of the system?
Noting the political backdrop to the inception of the Draft Copenhagen Declaration, I asked above whether it can be viewed as a genuine and sincere contribution to the reform debate, on the basis that it endeavours to strengthen the longer-term viability of the system (‘improved protection’ in that sense). I believe it can, but that to best achieve that certain observations follow for the final Declaration (this not purporting to be an exhaustive analysis).
As just suggested, the - proposals for more ‘dialogue and participation’ should not be included. I recognise the general motivation here as valid, but, despite the careful terms in which the proposals are put, there is too much risk that these initiatives will lead to problems, and so a weakening of the system, rather than a strengthening it.
As regards the ‘Shared responsibility – better balance, improved protection’ agenda, in my opinion it is valid for this to be included (with some refinements) in the Declaration, via a section dealing with ‘the subsidiary role of the Court’. However, currently there is too much emphasis on this in the Draft. This may reflect domestic political frustrations, but I submit it is problematic from the broader perspective of the best interests of the Convention system overall.
The risk is that a false impression is created: that it has been Strasbourg’s failures that have led to the major problems confronting the Convention today, with the States having to come to the rescue and put this right via Declarations. In fact, not only has Strasbourg itself been taking much of the initiative in this field, but an objective ranking of the importance of the issues would conclude that there are far more pressing and important issues relevant to making the system of the ECHR stronger: the need for proper national implementation (with such words to be backed up by political actions) is by far the most important issue for the Convention’s future, alongside the closely-intertwined issue of execution of judgments. Emphasis on Strasbourg’s subsidiary role should not eclipse that; rather it should be the other way around.
I therefore hope that the final Declaration will reflect this reordering of priorities – national implementation, execution of judgments, and, so, the collective responsibility of States – as the basis for ‘improved protection’. Having done so, references to the subsidiary role of the Court etc. might be integrated into a Declaration in a way that presents this as a valid and important feature of an overall vision.
To repeat, that it not because I want human rights to be weaker, or Strasbourg to become supine; rather the goal is to make the system of the ECHR, as overseen an authoritative Court, to be stronger at a time when it is starting to look very fragile. The aim should be to have a more durable, stable and, hopefully, effective Convention system, with a Court given the opportunity to function effectively, in accordance with the Priority Policy it has instituted (which entails, inter alia, that serious violations of human rights will be addressed first). In turn that should be for the net benefit of human rights across Europe (‘improved protection’ overall; even if a ‘subsidiary’ role for the Court implies that Strasbourg may be less at the vanguard of human rights law, for some issues)).
‘Should be’ – but will it? Of course, a Declaration would just be words; important, yes, but of little value absent the political will to see them through. Is that political will there?
That, of course, is what will really determine the success of the ECHR system going forward.
In that last connection, there is one further, very important issue to add: money. It is well known that the Court is not being given the financial resources required to do its job as effectively as it might (as far as I am aware, the Court’s budget is modest, especially so for the job it does in relation to 47 States; yet it would appear that it is not being resourced to do the job, despite the very considerable efficiency changes it has instituted over the last few years [cf the Court’s Opinion, at  and again at  highlights the ‘crucial issue’ of resources]).
If the States are not even prepared to properly finance the Court, should they really start a new Declaration by praising the Convention system for what it has achieved, and proceed to reiterate how States ‘remain committed to periodically reviewing the effectiveness of the Convention system and taking all necessary steps to ensure its effective functioning’ [5, Draft Copenhagen Declaration]?
If the aim of the Copenhagen Declaration is to help consolidate a kind of new deal of European human rights supervision as 2020 approaches, if it is genuinely aimed at strengthening the system, then they must show an intent in that regard, by paying for it.