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

After 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.