The Danish Chairmanship of the Committee of Ministers of the Council of Europe has issued a draft declaration ahead of the High Level Conference of foreign ministers of the 47 states in Copenhagen on 12-13 April 2018.
Here, we argue that the Draft Copenhagen Declaration poses a grave risk to the independence, integrity and authority of the European Court of Human Rights – and, in turn, to the protection of human rights in Europe – and should be substantially rewritten. Our concerns echo those raised in a detailed joint response to the draft declaration issued by eight non-government organisations that have monitored and participated in the process of ameliorating the Convention system, including at the high-level conference in Kokkedal in November 2017, after which the NGOs expressed disquiet over the proposed approach of the Danish Chairmanship.
That disquiet is borne out by both the tone and content of the draft declaration. While it professes to respect the Court, its leitmotif is a misconstrued understanding of the principle of subsidiarity, which underpins proposals that would seriously infringe on the role and jurisdiction of the Court and potentially expose it to permanent political pressure from states. Moreover, the draft declaration contains errors, contradictions and indeterminate proposals that would, if they are not removed, become dangerous weapons in the hands of those who bear ill-will to the Convention system, undermining it through weak implementation and/or politicised attacks (see here and here).
In so doing, the draft declaration irresponsibly squanders the opportunity to build upon the Brussels Declaration of March 2015 by reinforcing the imperative on states to strengthen national implementation of the European Convention on Human Rights and judgments of the Court.
Below, we contextualise the Copenhagen process before explaining our principal concerns about the tenor of this dangerous draft in terms of how it misconstrues subsidiarity and the margin of appreciation, undermines the universality of human rights, and creates channels for states to apply political pressure on the Court. Further, we highlight an unexplained and extremely worrying proposal to remove human rights litigation arising from armed conflict from the Court’s remit.
How did we get here?
Copenhagen will be fifth in a series of inter-governmental conferences reviewing the Court system, starting with Interlaken in 2010, followed by Izmir in 2011, Brighton in 2012 and Brussels in 2015. While Interlaken and Izmir were principally concerned with the backlog of applications to the Court, which peaked at 160,000 in September 2011, subsequent conferences rehashed “subsidiarity”, a principle confirmed by the Court long beforehand.
The Brighton conference took place in an inflamed political atmosphere, in the midst of the Abu Qatada saga and shortly after David Cameron’s speech in Strasbourg, suggesting a need to “re-balance” states’ relationship with the Court. A leaked draft of the Brighton Declaration contained several contentious proposals which, thankfully, were strongly diluted, with the result being an express reference to subsidiarity and the margin of appreciation to be inserted in the Preamble of the Convention via Protocol No. 15 (not yet in force).
The Brussels conference decisively, and commendably, shifted the focus towards practical steps to strengthen national implementation. It is regrettable that the Danish draft text channels the spirit of Brighton rather than Brussels. This may not come as a surprise, as Denmark has been described as waging a “crusade” against the Strasbourg Court, fuelled by anti-immigration sentiment stoked by the Danish People’s Party and focused in particular on the Supreme Court’s invocation of the right to family life to prevent the deportation of a convicted Croatian national.
Subsidiarity and margin of appreciation misconstrued
Although the draft declaration starts promisingly, underlining states’ “deep and abiding commitment” to the Convention and “strong attachment” to the right of individual application as a “cornerstone” of the Convention system, the rest of the draft is punctuated by pretexts for states to apply political pressure on the Court.
At the root of these regressive proposals is a mischaracterisation of subsidiarity and the doctrine of the margin of appreciation, two well-established principles of interpretation in the Court’s case law.
Subsidiarity is the principle that states (governments, parliaments and courts) have the primary responsibility to secure to everyone within their jurisdiction the Convention rights and freedoms, and to provide an effective remedy when these are violated, always subject to the Court’s supervision. What subsidiarity is not is a basis either for asserting the primacy of national law over Convention law, or for demarcating national spheres of exclusive competence, free from Strasbourg’s supervision. Yet the draft declaration embraces exactly this misconception.
For example, at paragraph 4, it notes that:
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 (emphasis added).
As the NGO response states (p. 3), this suggestion misconstrues subsidiarity “as allowing or even requiring the Court to limit or delegate aspects of its material jurisdiction to states”. Indeed, Council of Europe governments considered – and rejected – similar proposals in the report (paragraphs 90-94) on the longer-term future of the Court issued by the Committee of Ministers’ Steering Committee for Human Rights in December 2015.
Confusingly, at paragraph 13, the draft declaration suggests that the larger-scale the human rights violation in terms of the number of people affected, the more “unrealistic” it becomes for individual solutions to be found “at international level” as opposed to national level. This not only contradicts paragraph 4, cited above, but also carries the highly questionable implication that national authorities which have presided over systemic or widespread abuses are presumed to be trusted to resolve them without individual victims having recourse to a supranational judicial mechanism – in other words that the worst offending states should expect less rather than more scrutiny from Strasbourg.
Another attempt to handcuff the Strasbourg judges (at paragraph 26) is an extraordinary proposal for the Court, when examining cases related to asylum or immigration, to take full account of the effectiveness of domestic procedures and, where these procedures are assessed as operating fairly and with respect for human rights, to “avoid intervening except in the most exceptional circumstances”. The language of “non-intervention” is wholly inappropriate and infringes the Court’s authority to interpret Convention rights independently. Moreover, no justification is offered as to why asylum and immigration cases are singled out as requiring a lower standard of review by the Court.
Other mischaracterisations of the principle of subsidiarity appear in paragraphs 22-24, where the margin of appreciation is also deployed in questionable terms. The margin of appreciation is the doctrine, underpinned by the principle of subsidiarity, according to which states enjoy a degree of latitude in deciding from a range of possible ways of giving effect to the Convention rights and freedoms, subject to the ultimate supervisory jurisdiction of the Court. Regrettably, the draft declaration omits to clarify that states do not always have a margin of appreciation and that the scope of the margin of appreciation, if any, is determined by the Court and not by states. As the NGO response rightly points out (p. 6),
it is not for a political Declaration to seek to determine what and how judicial tools of interpretation, such as the margin of appreciation, apply. This is the sole task of the Court, and it must remain so, including with a view to respecting the Court’s integrity, authority and independence.
The draft declaration goes on (at paragraphs 27-28) to “strongly encourage” the Court to continue “robustly” to apply the principles of subsidiarity and the margin of appreciation, which it says provide “important incentives for national authorities properly to fulfil their Convention role”. This appears to refer to what Judge Robert Spano has called a “parliamentary-oriented” conception of subsidiarity whereby, in cases where an impugned law or policy is the result of reasoned, participatory deliberations within a parliament working conscientiously to ensure human rights compatibility, it is more likely to be defensible in a democratic society and hence the Court is less likely to find a violation.
Crucially, however, the draft declaration overlooks one side of the equation, seeking weaker supervision from Strasbourg while neglecting to exhort states to strengthen the parliamentary human rights mechanisms that would allow them to “earn” deference from the Court (aside from a passing reference at paragraph 18). This is a glaring omission from the draft declaration, and stands in sorry contrast to the Brussels Declaration, which contains numerous references to the importance of parliaments in implementing Convention rights and judgments of the Court. This matters because, as we have argued elsewhere, the perceived “democratic deficit” afflicting supranational human rights regimes stems less from a surfeit of judicial intervention than from the inadequacy of political mechanisms to “domesticate” human rights at national level.
A further concern about the draft declaration is the challenge it poses to the universality of human rights. The assertions (in paragraphs 10 and 14) that rights should be “determined” at national level as a “natural step in the evolution of the Convention system” and protected “predominantly” at national level “in accordance with their constitutional traditions and in light of national circumstances”, reinforces – as the NGO response observes (p. 5) – “the risks of fragmentation of the European human rights protection framework”. The final declaration should, the NGOs propose, “use inclusive language to recognize the importance of adequate implementation of all human rights in all situations in all State Parties” (emphasis in original).
“Dialogue and participation” – or institutionalising political pressure?
Another predominant theme of the Danish text is that of insisting on a more direct dialogue between governments and the Court, beyond the existing frameworks of the Committee of Ministers’ processes, litigation and third party interventions before the Court. This strange proposal suggests, in effect, states’ interference in “applying and developing the Convention” (paragraph 31) and “the general development of case law in important areas” (paragraph 33). Why the necessity to seek “appropriate access” for states to “participate in relevant proceedings before the Court” and the creation of “further possibilities to state their views and positions, and draw attention to the possible consequences for their legal systems” (paragraph 34) when the Court does so already in appropriate cases? What is the point of states, in addition, being encouraged 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” (paragraph 41)?
Such proposals for dialogue between the political and judicial levels could “inappropriately lead to political pressure on the Court, compromising its independence and authority” (see NGO response, p. 7).
A related concern is the apparent suggestion in the draft declaration that the development of rights and obligations under the Convention should, as the NGO response puts it (p. 2) be “conditioned by majority views”. For example, paragraph 32 notes the “significant impact” of the Court’s case law on “States Parties and their citizens” and calls for “ongoing dialogue in which States Parties and their populations are appropriately involved”. The reference to “citizens” is especially problematic here, given that states are obliged, under Article 1 of the Convention, to secure Convention rights to “everyone within their jurisdiction” (emphasis added) and not only citizens. While democratic deliberation on human rights is to be welcomed, such proposals come dangerously close to suggesting that the Court’s interpretation of Convention rights and obligations should be made dependent on majoritarian support – a position which runs counter to the role of the Convention system in protecting the rights of relatively powerless minorities who are especially vulnerable to discrimination.
Also of considerable concern is the proposal (paragraph 54.b) to establish “separate mechanisms” to deal with both inter-state and individual cases arising from international conflicts, in the interests of achieving a “balanced caseload”. This would mean that the Court would no longer have remit, as it does now, over human rights litigation arising from armed conflict in regions of Europe such as eastern Ukraine, Crimea, South Ossetia, Abkhazia, Nagorno-Karabakh and northern Cyprus. It would also rule out cases from conflicts such as Iraq, testing the legality of states’ powers of detention and the use of lethal force (see, for example, Al-Skeini v UK, Jaloud v Netherlands, Hassan v UK). There is no explanation as to why this category of cases has been selected for exclusion, over and above any other category of case which may have its complexities and result in substantial litigation. Nor has there been any prior discussion, as far as we are aware, as to the requisite elements of an alternative mechanism, or whether it is politically, practically and financially feasible to establish a viable alternative (providing a level of procedural and substantive access to justice which is at least equivalent to that currently offered by the Court).
What is more, this proposal fundamentally contradicts the express Convention stipulation that its provisions continue to apply in situations of “war or other public emergency” (see Article 15).We recall that in 2015 the Steering Committee for Human Rights ventured as regards large-scale violations that “[t]he Court has a pivotal role in this domain and is equipped to examine large-scale abuses of human rights…” (paragraph 88). Myriad questions would be raised, such as the logic of excluding litigation from eastern Ukraine (if an international armed conflict), but not Chechnya (a non-international armed conflict) – although if Russia’s pleas of its lack of involvement in Ukraine are to be believed, would cases from there also be beyond the Court’s jurisdiction?
Time to heed the warnings
The declaration that will emerge from the high-level conference in April will set the tone and priorities for the Council of Europe for several years to come. While the Brussels Declaration has yielded constructive developments in getting states to recognise and act upon their shared responsibility to secure human rights, the Draft Copenhagen Declaration, as it stands, gives a green light to recalcitrant states to apply pressure on the Court and perpetuates mistaken understandings of the key principles that underpin the Convention system.
Given serious human rights regression across Europe – especially prevalent in Poland and Hungary, Turkey, Azerbaijan and Russia, as well as Ukraine and Crimea – a secure, independent Court is needed for the continent more than ever. We trust that the warnings already issued by civil society will be heeded and that the drafters head straight back to the drawing board.