ECtHR, Civil Society, & Academics Respond to Proposed ECtHR Reforms
On February 5, 2018, the Chair of the Committee of Ministers of the Council of Europe, the primary intergovernmental organization tasked with promoting human rights in Europe, circulated an advanced draft of the Copenhagen Declaration, the next stage in ongoing reform efforts of the European Court of Human Rights (ECtHR), prompting civil society, academics, and the Court itself to respond to the proposal. See Danish Chairmanship of the Committee of Ministers of the Council of Europe, Draft Copenhagen Declaration (2018). Civil society and members of academia have warned against potential flaws in the draft, including, some argue, that it would lock the Court into deferring to State sovereignty. See AIRE Centre et al., Joint NGO Response to Draft Copenhagen Declaration (2018). [EJIL: Rewritten; EJIL: Dialogue; EJIL: Madsen and Christoffersen] In the midst of increasing discussion and at the request of the Chair of the Committee of Ministers, the European Court weighed in on February 19, 2018 with its own set of observations on the draft, which were primarily positive, despite civil society and academia’s opinions. See ECtHR, Opinion on the draft Copenhagen Declaration (2018), paras. 1, 5. The Declaration is part of the Interlaken process, a long-term reform process that aims to identify and implement measures to ensure the long-term viability of the European Court of Human Rights and the European Convention on Human Rights. The draft Declaration will set the stage for the next round of high-level talks on reform scheduled for April of 2018 in Copenhagen between State representatives; those talks will produce a final version of the Declaration. Previous declarations from similar talks have produced significant changes to the European human rights system, including amendments to the European Convention as well as changes in the European Court’s rules of procedure. See European Court, History of the Court’s Reforms.
The Draft Copenhagen Declaration
The Court’s significant backlog of cases, which was the primary reason for the first round of high-level talks in 2010, and the need for increased national implementation are two of the most prominent issues in the draft Declaration, both of which have been the focus of high-level talks in the past. [EJIL: Rewritten] See Danish Chairmanship, Draft Copenhagen Declaration, paras. 16-21, 43-54; Interlaken Declaration (2010), para. 7.
The draft proposes that a more effective use of the European Court’s friendly settlement and unilateral declaration processes could lead to a reduction in the backlog, and proposes the creation of a separate mechanism or court to address the large number of cases that have been arising from international conflicts between States parties. See Danish Chairmanship, Draft Copenhagen Declaration, at para. 54. The draft Copenhagen Declaration promotes these measures to fully eliminate the backlog even while the earlier reform efforts have successfully reduced the backlog. See id. at paras. 43-45.
The draft recommends that States create effective domestic remedies for violations of the Convention, ensure that domestic policies and legislation comply with Convention standards, provide professorial training and awareness-raising of Convention case-law, and take into account principles established under case-law against other Member States. See id. at paras. 19-21. These recommendations draw from the draft’s identification of the Member States’ failure to implement the Convention at a national level as one of the “principle challenges” confronting the respect for the Convention and the Court. See id. at paras. 1, 16.
The draft Copenhagen Declaration also devotes significant attention to reform efforts centered on the idea that responsibility for the protection of human rights is shared between the Member States and the European Court, and on increased input from Member States. See id. at paras. 8-9, 31. First, the draft recommends that reform efforts should be directed towards striking a better balance between the responsibility of the European Court and Member States. See id. at para. 11. The draft elaborates that under the principle of subsidiarity, Member States maintain the primary obligation to guarantee the protection of human rights, and as a result of this obligation, States are entitled to a margin of appreciation in their enforcement of human rights. See id. at para. 9.
The draft also proposes that the Court seek further participation from third-party States not involved in a pending case, including through procedures that inform stakeholders of important cases or through improved access for third-party submissions from States in support of referrals to the Court’s Grand Chamber. See id. at paras. 38-39. The draft notes that this need derives from the fact that the Court’s case law may have an important impact on policy decisions at the State level, and accordingly, States should utilize the third-party intervention process to fully inform the Court of the national interests at stake in cases with policy impacts. See id. at paras. 31-35.
The European Court’s Observations on the Draft
The European Court expressed strong support for the draft’s focus on addressing the Court’s caseload and Member States’ national implementation. See ECtHR, Opinion on the draft Copenhagen Declaration, paras. 11, 19-20. While the Court is receptive to increasing the use of friendly settlements and unilateral declarations, it declined to comment on the draft’s proposal concerning the creation of a new mechanism to resolve cases arising from international conflicts. See id. at paras. 25-26.
The Court expressed concerns over the draft’s characterization of shared responsibility with respect to the protection of human rights at the national level. See id. at para. 10. In the draft’s discussion of shared responsibility, the draft affirms that rights should be secured in light of the Member States’ “constitutional traditions” and “national circumstances.” See Danish Chairmanship, Draft Copenhagen Declaration, para. 14. The Court found that this statement misrepresents the role these factors play in the Court’s adjudication process. See ECtHR, Opinion on the draft Copenhagen Declaration, para. 10. The Court also highlighted that while the principle of subsidiarity has been employed more frequently as Member States have demonstrated sufficient respect for human rights at the national level, there are a significant number of cases where Member States have failed in this respect. See id. at para. 14.
On the issue of increased dialogue, the Court observed that domestic court decisions and third-party interventions before the European Court are the appropriate mechanisms for States to enter the dialogue around the development of European Court jurisprudence. See id. at para. 16. The Court recognizes that States currently do not frequently use third-party interventions. See id.
The Civil Society and Academic Responses
On February 13, 2018, a group of eight civil society organizations issued a joint-response to the draft Copenhagen Declaration. See AIRE Centre et al., Joint NGO Response to Draft Copenhagen Declaration (2018). The NGO statement welcomed several aspects of the Declaration, such as the emphasis on the importance of national implementation and execution of judgments. See id. However, the response noted that while implementation and execution were the focus of previous high-level talks in past years, the current draft Declaration has devoted less attention on these issues. See id.
The NGOs’ and academics’ responses were critical of the draft’s discussion of shared responsibility surrounding the principles of subsidiarity and margin of appreciation, believing the document to favor State sovereignty too strongly. See id. The NGO response emphasized that subsidiarity and margin of appreciation are principles of judicial interpretation and are not an aspect of the reform process. See id. Several academics have echoed this concern, criticizing the draft Declaration’s use of these principles to “handcuff” the Court’s freedom to address national human rights questions as they arise under the Convention. [EJIL: Rewritten] Furthermore, some academics have claimed that the draft’s conception of the principle of subsidiarity “fails, and consistently errs in favour of state sovereignty.” [EJIL: Dialogue]
Those same groups have largely met the calls for increased dialogue with suspicion. Critics caution that certain channels of dialogue between the Court and Member States may be used as a means to exert political pressure, undermining the Court’s independence and jeopardizing the separation of powers among the European system. [EJIL: Rewritten; EJIL: Dialogue] See AIRE Centre et al., Joint NGO Response to Draft Copenhagen Declaration (2018).
The Interlaken Process
The ongoing effort to reform the European Court is the Interlaken Process, named after the first round of high-level talks held in Interlaken, Switzerland in 2010. Each stage of the Interlaken Process consists of high-level talks, led by the current Chair of the Council of Europe’s Committee of Ministers. See European Court, History of the Court’s Reforms. In addition to being attended by State delegates of the Committee of Ministers, the talks will receive input from the European Court, including both judges and members of the registry. See id.; see also Council of Europe, Programme of the High Level Conference (2015). Additionally, past talks have provided a forum for civil society involvement, including inviting civil society members to speak as well as hold side events. See, e.g., Council of Europe, Programme of the High Level Conference (2015).
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