Fourth (2018) edition of Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights (forthcoming, this month) – Preface

hobw2018I am delighted to be involved as a co-author of the fourth edition of the latest edition of this leading textbook on the ECHR, and to say that this is due out later this month.

Details may be found on Oxford University Press’ website, where the first chapter may also be read (here).
Below I set out the text of the Preface, which was written back in March (in fact, just before the final version of the Copenhagen Declaration was issued).

PREFACE

This is the fourth edition of Law of the European Convention on Human Rights. Since the last edition the book has been translated into Turkish, Bulgarian, and Russian, thus increasing dramatically our readership and creating a basis for informed comment about the Convention in many different countries.

This edition of the book seeks to give an account of the main developments that have occurred in the Court’s case law since 2014 and to do so in roughly the same number of pages as the third edition so that the text remains both accurate, comprehensive, and manageable.

Such is the dizzying pace of legal development at the ECtHR that discussions of older cases have had to be pruned somewhat in order to deal with more recent judgments. However, the new judgments compel our attention. As is often the case, judgments coming from the Court continue to examine cutting-edge questions of relevance to modern societies. To give but a few examples, these concern new issues of respect for family life such as the legal recognition of children born out of surrogacy arrangements abroad (Menesson and Others v France and Labassee v France), the electronic surveillance of employees at their workplace (Barbulescu v Romania), the legal safeguards that are necessary in a democratic society to control telephone surveillance (Roman Zakharov v Russia), the scourge of human trafficking (Chowdury and Others v Greece), or the existence of universal civil jurisdiction in respect of extraterritorial acts of torture (Näit-Liman v Switzerland).

Since the last edition there have been important developments in the area of subsidiarity in keeping with the reform Declarations in Interlaken, Izmir, Brighton, and Brussels. Not surprisingly the Draft Copenhagen Declaration (February 2018) was also peppered with references to the importance of the principle. Some commentators now refer to the arrival of the ‘age of subsidiarity’ as the most recent phase of the Court’s evolution.
This would indeed appear to be so.

For example, the Court has recently applied the rule of the exhaustion of domestic remedies to large numbers of cases as reflected in decisions to reject de limine 27,000 Turkish cases concerning the dismissal of civil servants following the Köksal judgment and 6,000 cases concerning prison conditions in Hungary following the Domján judgment. Of course, the Court has always applied the exhaustion rule with firmness so there is strictly speaking nothing new in this except that it demonstrates graphically the strength of the Court’s attachment to the governing principle that Convention rights are meant, first and foremost, to be protected by the national judge.

Also emphasizing subsidiarity, in an unprecedented development (Burmych and Others v Ukraine) the Court has struck out around 12,000 cases and forwarded them to the Committee of Ministers on the grounds that Ukraine had failed to give effect to a pilot judgment concerning the non-enforcement of court judgments.

This concern with subsidiarity is further evident in the Court’s evolving approach to the margin of appreciation. Where the national judge correctly identifies the Court’s relevant principles, for example, in immigration (Article 8) and freedom of the press (Article 10) cases, and reaches a decision on the balancing of the interests involved, the Strasbourg Court will not substitute its view for that of the local court unless there are exceptional reasons to do so. This approach has arguably become more systematic in recent years and to some extent anticipates the reference to the margin that will appear in the ECHR Preamble when and if Protocol No 15 enters into force.

Subsidiarity is also the driving factor in the Court’s continuous dialogue with national superior courts, either through its leading judgments or its frequent meetings in Strasbourg with delegations of judges from the contracting parties with a focus on case law issues of common interest. In keeping with this concern to build up its relationship with national courts— relationships that are essential for an international tribunal that is under such constant political attack as the ECtHR—it has gradually built up a Network of Superior Courts with a membership of sixty-four courts exchanging information on relevant case law developments.

Mention must also be made of what has been dubbed the ‘dialogue’ Protocol (Protocol No 16) that creates the possibility of a national superior court seeking an advisory opinion from the ECtHR on a matter concerning the interpretation of the ECHR. It appears possible that this Protocol may enter into force sooner than expected as it needs only two more ratifications (out of ten required). [Note: in fact the Protocol entered into force on 1 August 2018]. Designed to function alongside a system based on the right of individual petition, the Protocol will take some time before it is fully operational but offers the prospect of a new dimension in human rights litigation that eliminates to some extent the confrontation with national judges involved in the current system by transforming them into major actors within that system.

One of the continuous challenges for the Court is to develop its case law in a manner that respects the diversity of legal cultures present in the Convention system without betraying its mission to protect human rights. It is through this lens that one must understand the Court’s evolving attachment to the different forms of subsidiarity that assist it to perform such a tricky balancing act.

The ECtHR has made important progress in reducing its case load but is still challenged by a large docket of non-repetitive Chamber cases. It has also seven inter-state cases on its docket—two brought by Georgia against Russia and five brought by Ukraine against Russia. EU accession to the Convention has been set back by a strong negative opinion by the Court of Justice of the European Union and is unlikely to happen, if it happens at all, for some considerable time. Further, the European Commissioner for Human Rights has observed that the twin problems of non-implementation of important Court judgments and the continued attacks on the authority of the Court by states such as Switzerland, Russia, the UK, and Azerbaijan contribute to undermining the principle of shared responsibility supposedly endorsed by all the contracting parties (speech by Nils Muižnieks of 23 August 2016).

The Court also faces important budgetary cuts in 2018 following political decisions by Russia not to pay its budgetary contribution to the Council of Europe and by Turkey to reduce its contribution considerably. It seems unlikely that the shortfall will be made up by other Council of Europe states. These difficult challenges will hopefully be addressed in the upcoming Copenhagen Reform Conference in April 2018. They are typical of the difficulties that have episodically, and perhaps inevitably, beset the Convention system.

The system continues, unfortunately, to receive a bad press in the UK post the Brexit referendum. The Conservative party’s plans to create a home-grown bill of rights—which may rekindle debate on the UK’s membership of the ECHR—has been put on hold while the complex Brexit negotiations continue to occupy the exclusive attention of Whitehall. However, we can state with conviction that this particular sword of Damocles will not deter the authors from producing further editions.

Against such a background it is reassuring to see the growth of critical scholarship on the Convention system when it is most needed, with emphasis on the notions of subsidiarity, the margin of appreciation, and legitimacy. Professor Merris Amos has set out cogently what the UK and its inhabitants would lose were the government also to turn its back on the Convention and the oversight of the Court—not least the opportunity for UK courts to lose ‘their remarkable and growing influence on the jurisprudence’ (28 EJIL 3 at 763–85 (2017)). As was underlined in a recent speech given at the Court ‘The truth is that the [ECHR] was drafted by visionaries, and that this vision still protects us today, as it protects our fellow citizens, and it is incumbent on us to remain faithful to it’ (Emmanuel Macron, Speech at the ECtHR, 31 October 2017).

Fortunately, nearly all of our team of authors for the third edition have been available to contribute to the fourth edition, with some chapters being redistributed between them. There is one less chapter than in earlier editions. The chapter on the common elements of Articles 8 to 11 has been omitted, with some of its content, on such matters as the margin of appreciation that have general Convention application, being placed in Chapter 1. There is just one new author, Kresimir Kamber, a lawyer in the Registry of the Court, who has updated Chapter 3 on the Court.

We would like to thank Nicolas Kimber, LLM graduate, University of Nottingham, and John Riddell, LLM student, University of Nottingham, for their considerable research and editorial assistance in the preparation of this new edition, and Romana Lemishka, PhD student, University of Nottingham, for her editorial contribution. Finally, we would like to thank our colleagues at Oxford University Press for their assistance and understanding during the production of the book.
David Harris
Michael O’Boyle
Ed Bates
Carla Buckley
March 2018.

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