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Copenhagen: Keeping on Keeping on. A Reply to Mikael Rask Madsen and Jonas Christoffersen on the Draft Copenhagen Declaration

Published on February 24, 2018        Author:  and
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The debate about the future of the European human rights system is absolutely vital, and with that in mind we venture here to reply to just some of the points made by Mikael Rask Madsen and Jonas Christoffersen in their post about the draft Copenhagen declaration.

Commenting on the position paper recently published by the European Court of Human Rights itself, Madsen and Christoffersen detect a ‘strikingly different tenor’ compared with our comments and those of other academics. However, the Court’s reticent tone is only what one would expect from an international judicial institution, in commenting on draft proposals by a member state of an inter-governmental institution such as the Council of Europe. We would observe that the Court’s apparent cautiousness should not be mistaken for consent to the proposals in the declaration. Indeed, we understand that the draft declaration has caused no little concern within the Council of Europe. We also understand that a number of states have already expressed their serious reservations about the way in which the draft declaration downplays the Court’s oversight, queries its independent judicial role, pronounces on how the Court should interpret and apply the Convention, and questions the principle of the universality of human rights. Closer to home, the Danish Helsinki Committee for Human Rights has called for its ‘complete revision’.

Subsidiarity

It is suggested by Madsen and Christoffersen that the declaration is simply codifying recent developments relating to subsidiarity, and they identify ‘an increased demand’ for subsidiarity since the Brighton Declaration. However, in its paper the Court underlines that the concept of subsidiarity is nothing new, and that it is context-dependent – a matter for the Court to assess in each case. Read the rest of this entry…

 
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A Wolf in Sheep’s Clothing: Why the Draft Copenhagen Declaration Must be Rewritten

Published on February 21, 2018        Author:  and
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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. Read the rest of this entry…

 

The Continuing Utility of International Human Rights Mechanisms?

Published on November 1, 2017        Author: 
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Can a convincing case still be made that the pursuit of international human rights mechanisms leads to efficacious results? The challenges to, and criticisms of, human rights systems in recent years are legion. Their legitimacy has been questioned (leading in some instances to the threat of state withdrawal, such as the case of Russia within the Council of Europe, complaining that it no longer has a role in electing judges to the European Court of Human Rights). It is also said that human rights mechanisms are inefficient and overloaded and that decisions are not implemented. Litigation can of course set bad precedents, resulting in regression, and even progressive decisions can lead to backlash – as a response, legislation may be introduced which is aimed at narrowing or reversing the positive effects. It remains very difficult to measure the impact of strategic litigation: governments seek to deny any impact; there may be a range of legal, social and political dynamics at play; and a lack of baseline data or analysis.

Their effectiveness relies on a minimum level of good faith shown by the executive and sufficient political will to lead to positive change. How viable is that when increasingly we are faced with the perilous position of the executive taking control of the judiciary, as is already the case in countries like Azerbaijan, and as we are seeing in Venezuela and Poland? It is also suggested that there is an over-legalisation of the human rights movement, which is not capable of addressing complex social problems, as a result of its distance from grass roots and the inadequate contextualisation of human rights issues at the national or local levels.

And yet….recent research suggests on the contrary that these legal mechanisms are indeed productive and viable, although we may need to do more to understand their various impacts and to develop different approaches to ensure we are getting the best out of them.

In her new book, Evidence for Hope, Kathryn Sikkink marshals a compelling argument that human rights laws and institutions have had positive impacts, especially in states undergoing political transition to greater democracy. She discerns both evidence of the socialisation of states taking place within these institutions, and also change from the bottom up: as a consequence of domestic social movements in repressive societies using legal tools. Sikkink suggests that the multiple accountability mechanisms (international and regional) address different kinds of impunity and serve to reinforce one another, and that strong domestic courts act to enhance the effects of states’ international commitments. Read the rest of this entry…

 
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Strasbourg Censures Georgia over Detention of Former Prime Minister – the impact of an Article 18 violation

Published on August 2, 2016        Author: 
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In December 2013, former Georgian Prime Minister Vano Merabishvili was hauled out of his Tbilisi prison cell in the middle of the night, and, with his head covered, was driven to an unknown destination. On arrival, he found himself before the Chief Public Prosecutor and the head of the Georgian prison service. Merabishvili was offered a ‘deal’, and was asked for information about the death of the former Prime Minister Zurab Zhvania in 2005, and to provide information about secret offshore bank accounts which they claimed were owned by the former President, Mikheil Saakashvili. Merabishvili turned down any deal, describing what he had been told as a conspiracy theory and nonsense. The Chief Prosecutor then told Merabishvili that his detention conditions would worsen if he did not agree to cooperate with the authorities. In his statement to the European Court, Merabishvili said that the ‘deal’ proposed also involved his release and guarantees to leave the country with his family.

Within three days of the incident, when Merabishvili next appeared at the city court in Tbilisi, he described what had happened to him. Immediately, the Prime Minister, Minister of Prisons and Chief Public Prosecutor all denied that the events happened at all and rejected out of hand calls for an investigation.

However, in a judgment published on 14th June the European Court of Human Rights described Merabishvili’s account as ‘particularly credible and convincing’ Read the rest of this entry…

 

Thawing the Frozen Conflict? The European Court’s Nagorno-Karabakh Judgments

Published on July 6, 2015        Author: 
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Last September, Erik Fribergh, the Registrar of the European Court of Human Rights, told Government representatives on the Steering Committee for Human Rights (CDDH) that ‘the Court is … not equipped to deal with large scale abuses of human rights. It cannot settle war-like conflicts between States.’ Yet, as Fribergh noted, the Court is increasingly being called on to adjudicate on such situations. Through the two Grand Chamber judgments delivered on 16 June (Sargsyan v Azerbaijan and Chiragov v Armenia) has the European Court entered into the terrain of international conflict resolution?

Both judgments upheld the European Convention rights of families displaced by the Nagorno-Karabakh conflict in the early 1990s, a conflict that created hundreds of thousands of refugees and internally-displaced persons (IDPs) on both sides, and which has remained unresolved in the ensuing decades. Peace negotiations have been held under the auspices of the OSCE ‘Minsk Group’ (co-chaired by France, Russia and the United States), but as the judgments make clear, settlement negotiations have repeatedly failed, due to the uncompromising attitudes of both Governments. The cases are legally important, given the Court’s position on the jurisdictional reach of the Convention, which Marko Milanovic has previously discussed here. They are politically significant too – in emphasising the importance of the two states establishing a property claims mechanism, and giving the parties to the cases 12 months to come back with proposals on redress, the Court has arguably given significant fresh impetus to the resolution of the ‘frozen conflict’.

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Ukraine, Russia and Crimea in the European Court of Human Rights

Published on March 19, 2014        Author: 
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Much has been written recently about the legal ramifications of events in Ukraine, but there was a new development last week when the European Court of Human Rights granted interim measures in an inter-state case brought by Ukraine against Russia. The case was lodged on 13 March, and on the same day the Strasbourg Court issued an interim measure (under rule 39) indicating that the Russian government should ‘refrain from measures which might threaten the life and health of the civilian population on the territory of Ukraine’.

The decision was taken by the President of the Third Section of the Court, the Andorran judge, Josep Casadevall. Judge Casadevall went further in calling on both Ukraine and Russia to refrain from taking any measures, ‘in particular military actions’, which might breach the rights of civilians under the European Convention on Human Rights, including putting their life and health at risk, and calling on the states to comply with Articles 2 and 3 of the Convention. Both states are obliged to inform the Court as soon as possible of the measures they have taken in response.

In spite of the Convention preamble’s exhortation to state parties to ensure its collective enforcement, the inter-state case procedure in Strasbourg remains a rarity. It may come as little surprise that Russia has been the respondent in the three most recent such cases, each of which has been brought by Georgia. Georgia v Russia (I) relates to the arrest and detention of the Georgian immigrant population in Russia in September 2006, following the arrest in Tbilisi of four Russian service personnel on espionage charges. More pertinently to the current events in Ukraine, Georgia v Russia (II) concerns the August 2008 conflict in South Ossetia and Abkhazia, in which Russia claims to have been defending the civilian population (Russian citizens who had been granted passports) in both regions against Georgian attacks (there are also at least 2,000 individual applications pending against one or other (or both) states). A third case brought by Georgia, relating to the detention of four Georgian minors in South Ossetia, was withdrawn after they were released in December 2009, following missions to the region by the Commissioner for Human Rights.

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