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’.
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. The Court acknowledges the many cases in recent years where it has been unnecessary to intervene, because there has been effective respect for the protection of human rights at the domestic level, but adds (paragraph 14) that,
such cases must be contrasted, however, with the many others in which it is clear that such progress is simply absent, and that reveal instead a failure to engage effectively not only with the reform process, but with the Convention itself.
As the Danish Helsinki Committee for Human Rights has rightly argued
The ECtHR is not and must not become a battleground for member states’ national interests […] the Court is not in need of political admonitions about subsidiarity, but of adequate funding and clear political support for its mission from all member states.
Most contentious amongst the points made by Madsen and Christoffersen is the suggestion that international courts need to be ‘continuously re-legitimated’, which is posited as the basis for ‘increased political dialogue’. Dialogue, of course, yes, in general terms, but this cannot justify political pressure being exerted on the Court by states (who, let’s not forget, are the defendants in the ‘Strasbourg dock’) either in relation to particular decisions, or vis-à-vis certain lines of its jurisprudence of which some states may disapprove. Some of the proposals made by academics at the Kokkedal conference in November 2017 would, in our view, inevitably lead to states seeking to re-argue the merits of cases which had already been lost before the Court.
There is no doubt, of course, that the Court’s caseload (currently at about 57,000) remains too high and needs to be addressed. However, that cannot justify arbitrarily selecting a particular group of cases, such as those arising from armed conflict, for exclusion (as the Draft Copenhagen Declaration does at paragraph 54.b). Madsen and Christoffersen observe that ‘at no point does the Declaration suggest that such cases will be scrapped’, but how else can its proposal that such cases be dealt with by “separate mechanisms or other means” be interpreted except as a suggestion that individuals and states will no longer be able to take these cases to the Court? The exclusion of conflict cases is cited as an example of a reform which is ‘most likely to achieve concrete benefits’. But on what basis? Madsen and Christoffersen acknowledge that ‘the preliminary work has not yet been done’ – therefore, they still provide no justification whatsoever for focusing on such cases, beyond a reference to ‘many unreasonably old cases stemming from inter-state conflicts’ remaining on the Court’s docket. Can that be a responsible basis for suggesting the inclusion of such a drastic provision in an inter-state declaration, which could potentially mean the denial of access to justice for many thousands of particularly vulnerable people? By way of example, at EHRAC and GYLA we are litigating a series of cases arising from the 2008 South Ossetia conflict between Georgia and Russia, on behalf of individuals expelled from their villages and the relatives of people killed. Those cases were lodged almost ten years ago, and have not yet been communicated by the Court. Such delays (for which the applicants are in no way responsible) are highly regrettable, but, if asked, those applicants would strenuously resist any suggestion that they should not be able to seek justice at all from the European Court.
It is reassuring that Madsen and Christoffersen suggest that the proposal on conflict cases is about ‘rethinking how justice can better be served’ for such applicants, but there is nothing to that effect in the draft declaration, and we consider that it is naïve to assume that a better system of justice will somehow emerge.
Finally, to return to the critical question of funding, given the continuing caseload burden on the Court, and the recent withdrawals or reductions of contributions by Russia and Turkey, it is important that its strong call for additional financial resources is heeded. We recall that the Court made a request for a temporary extraordinary budget of 30 million euros over eight years starting in 2015, to deal with the so-called “Brighton backlog” of cases. This shows that the Court has developed workable plans to eliminate the Brighton backlog while dealing expeditiously with new applications. Therefore, it is up to states to ensure that it is properly resourced to do so.
It does seem apparent that the draft declaration will be significantly revised, which Madsen and Christoffersen themselves appear to acknowledge towards the end of their blog. Is there a possibility that the Danish government has sought to ‘fly various kites’, with the intention of appearing to fall back, in the face of opposition, to certain proposals, which were actually their intended objectives in the first place? As outsiders to the negotiations we cannot know, but continued vigilance and close scrutiny is certainly needed, since we are debating the very future of human rights in Europe.