How should the European Court of Human Rights be reformed? Para. 41 of the Copenhagen Declaration of April 2018 seeks to scrutinise, for this purpose, recent developments in its jurisprudence, to decide, before the end of 2019, on further reform (para. 5 Copenhagen Declaration). What is a meaningful idea for such scrutiny? This post provides a legal reconstruction of the Court with respect to who it represents and in whose name it decides, that is in the name of the European club of liberal democracies. From here on, it flags the identity crisis of the club as the Court’s most important challenge. It also shows the procedural margin of appreciation doctrine as a possible path to the Court’s future, with a reformed role that focuses on the essentials of the club.
The focus “in whose name?”
An evaluation of the Court’s jurisprudence needs an idea of its democratic legitimacy, not least because it often confronts elected governments. The question, ‘in whose name’ the Strasbourg Court is deciding, evokes such an idea. Indeed, many national courts state right at the outset that they decide In the name of the people or the republic, whatever is conceived as the ultimate source of their legitimacy. Accordingly, most evaluations of domestic courts start from this premise.
In the judgements of the ECtHR, as those of any international court, nothing of that kind is written. So the question is what could feature in there as a short formula which provides a similar idea? One might consider referring to the Convention. It would then read In the name of the European Convention on Human Rights, as if a domestic court would start with In the name of the law. Yet, this is a step too short: the legitimacy does not stem from the law itself, but from its approval by parliament. Accordingly, the basis of the Court’s democratic legitimacy stems from the national ratifications of the Convention.
Hence, in a normal international controversy between two states, one could consider a court to decide In the name of the high contracting parties litigating before the court. But this makes little sense for the Strasbourg court: most controversies at the ECtHR are between a state and a national of that state. A different formula is needed.
The European club of liberal democracies
The starting point for the Court’s democratic legitimacy is the Convention’s ratification by the states, by all parties. Accordingly, the Court decides In the name of all high contracting parties. The holistic all must be stressed. The Convention cannot be reduced to a web of bilateral relations. It is undisputed that the jurisprudence of the Court serves a role beyond a bilateral relation. In general terms, it is about “human rights and the rule of law in Europe” (para. 2 Copenhagen Declaration). Any evaluation of the Court needs to account for this.
If the Convention makes an important step beyond bilateral international law, it makes yet another one that goes beyond agnostic international law, too. Its high contracting parties are qualified by being part of the Strasbourg system. Under the Convention and the Statute of the Council of Europe, two qualifications seem safe. First, all parties are considered European states. Second, more importantly, they are legally qualified as liberal and democratic states. The bottom line of the Convention and the Statute is that they stand against authoritarianism. Of course, liberal is an open concept, meaning, among many things, a left leaning ideology, or a neoliberal ideology, or an old fashioned mindset. In this context however, liberal refers to a pluralist democracy where the majority is constrained by a substantive rule of law, by a working system of separation of powers, not least by an independent and impartial judiciary. Accordingly, the formula evolves into In the name of European liberal democratic states.
The Convention is not just about states or about the formal organization of public authority in the States Parties. Its focus is on individuals, even on citizens. Of course, the Convention’s protective reach includes aliens. But citizen rights are at its core: evidence can be found in the Convention’s preamble with its plea for “effective political democracy”, in the Court’s case law on freedom of political assembly, political opinion, or fair elections, in Articles 3 and 8 Statute of the Council of Europe. This should be reflected in the formula. Indeed, this is why in the domestic setting, courts decide In the name of the people or the republic. For the Convention, its reach beyond the formal organization of power can be expressed by simply deleting states from the formula.
Thus, it turns into In the name of European liberal democracies. Note the plural democracies: at stake is not an abstract idea of political organization. The formula rather stresses that democratic legitimacy of the Court comes from the peoples, the citizens of its countries.
Finally, the formula should reflect the countries’ coming together to fully express the source of the Court’s democratic legitimacy. This explains the club in the formula. The term club expresses that European liberal democracies have teamed up to do together what they cannot achieve alone. The towering objective is a continental human rights system that supports their corresponding constitutional choices. But further common aims are not to be forgotten: the pursuit of unity, of common ideals and principles, of economic and social progress (Article 1 Statute of the Council of Europe). To this end, the State Parties set up common institutions, staffed through common procedures which pool their various authorities and legitimacies. Given the scarce power of the Strasbourg institutions, one should not speak of a union, in the sense of Article 1 para. 2 TEU with respect to the European Union, but use a less demanding term, a club. In the more formal language of juridical German, the term of art is Verbund.
That the Court hence decides In the name of the European club of liberal democracies conveys the idea that its legitimacy rests on some pooling of European liberal democracies. This is not a revolutionary understanding of the Court by any means. It expresses, though in different terms, the settled idea that the Strasbourg system provides an important example for community in international law and politics.
Tasks in times of normalcy
Any evaluation of ECtHR needs to see that it performs crucial tasks. This is by no means self-evident, but quite an achievement. In its first decades, the Court was in search of a proper role, being originally designed as an instrument against authoritarianism in Western Europe. Its first president famously mused about its irrelevance. The Court only gradually found a role in developing what then became the European club of liberal democracies, namely by advancing the rights revolution in Western democracies, by embedding constitutional courts and by easing democratic transitions.
The catchy term ‘the rights revolution’ summarizes the fact that, from the 1970s, it became essential for Western liberal democracies to protect individual rights beyond the traditional rule of law. However, in a number of State Parties, there was no good domestic legal basis for this. This dearth offered an opportunity for relevance which the Court, and the former Commission, seized. They started supporting the ‘rights revolution’ in a number of countries, performing a task somewhat comparable to constitutional adjudication. Thus, the Court’s jurisprudence helped an important evolution, and even transformation of the domestic legal orders. Doctrinally, this role justifies the Court’s evolutive (or dynamic) interpretation and its creation of a human rights case law with precedential effects (Copenhagen Declaration paras. 3, 8, 14, 26 f.). Today, the Court is key to its Parties being European liberal democracies.
This also holds true for State Parties with operative constitutional courts, such as Germany and Italy. Of course, it is beyond reasonable doubt that these courts have autonomously advanced the cause of individual rights. No true help from the Strasbourg Court was needed, notwithstanding Italy’s problems under Article 6 ECHR. Yet, the Strasbourg jurisprudence has, by providing for their European embedding, played a crucial role for Germany and Italy to become European liberal democracies.
The European embedding of all countries is crucial for a truly European wide human rights system with a common vocabulary and some common rights culture. To this end, the Strasbourg institutions must visibly operate with respect to all countries, including those with a lively culture of individual rights. This visibility comes at a price: if the Strasbourg Court is to have authority with those constitutional courts, a specific type of conflict is almost unavoidable, given that their identity is much defined by being final authorities on such rights. So far, this price has been considered as worth paying, and rightly so. The frictions can be managed. Indeed, the stance of the Copenhagen Declaration is to constructively address these tensions by concepts such as dialogue and shared responsibility (e. g. paras. 6 f., 33, 36 f.).
After the Berlin wall came down, a further task emerged for the Strasbourg court: supporting countries emerging from Soviet rule on their path towards liberal democracies. This brought new challenges by which to evaluate the Court’s case law, for example through its guidance for judicial reform or for transitional justice. On that path, the structural dimension of the Court’s interventions became ever more important, which was one of the reasons that led to the pilot judgment procedure. All this sharply increased the breadth and depth of the Court’s relevance and powers. However, most observers see this expansion as legitimate, and so does the Copenhagen Declaration (para. 14, 17). And rightly so: it helped the Continent to move towards a public law constellation first laid out in Immanuel Kant’s 1795 essay on perpetual peace.
Tasks in situations of crisis
The Court’s jurisprudence has been successful in advancing the rights revolution in Europe, in Europeanizing constitutional courts and in supporting the constitutional transformations in former Communist countries. Also for its own making, the formula In the name of the European club of liberal democracies has become ever more credible, not only as a legal reconstruction of the Court’s mandate, but also of the political realities under its jurisdiction. Yet, the path of the Continent is not unidirectional. Various countries have started transitions that estrange them from the club. The human rights situation in some Convention States appears imperilled for “serious structural and systemic reasons” (Copenhagen Declaration, para. 16). Moreover, the club itself, its very identity, seems endangered.
To be or not to be a club of liberal democracies; this is the question the club is facing. Shakespeare’s Hamlet well expresses the club’s dilemma: “Whether ’tis nobler in the mind to suffer the slings and arrows of outrageous fortune, or to take Arms against a Sea of troubles, and by opposing end them”. Any evaluation of the Court’s respective jurisprudence should recognize this dilemma. Any action is fraught with uncertainties, and a Court frozen in uncertainty is a terrible option, too.
The club stands at a bifurcation. One way is to defend its identity as a club of liberal democracies as we know it. Along this path it will, in all likelihood, also modify its identity, not least by moving away from its consensus culture. The other way would be for those dissident members to co-define what the club stands for. In the latter case, the club will probably not dissolve, but evolve into something else. As such, it might be still useful: the UN is a useful institution, and so are the UN Human Rights Committee, the UN Human Rights Council, or the International Court of Justice.
These developments affect the very essence of the club and provide the towering angle for evaluating the Court’s jurisprudence today (Copenhagen Declaration, para. 12). Before suggesting some points for this evaluation, an epistemological consideration is in order. So far this post has presented a doctrinal reconstruction, which has a solid methodological basis. Now, it moves on to the methodologically more muddy fields of choices and guesses.
The need for red lines and structural measures
This post’s choice is a reformed role for the Court which allows it to credibly continue deciding In the name of the European club of liberal democracies. It departs from the premise that no measure by the Council of Europe or decision by the Strasbourg Court can impose liberal democracy on a State Party. The Strasbourg system can only lend support to broader trends and powers. This is particularly true when the system faces an elected government that defies basics of the European club of liberal democracies. In such a situation, I consider drawing red lines and ordering structural measures as crucial, both for supporting self-healing within the internal processes of such a country as for maintaining the club’s identity.
This provides a yardstick for the evaluation of the case law: whether it succeeds in convincingly drawing such lines that mark the essentials of a liberal democracy. It must become clear to everybody, not least to the European public, what transgresses the outer boundaries of the club. This leads to a focus on the jurisprudence on core rights, on the essence of other Convention doctrines of qualified illegality, such as the one of serious systemic or structural problems (Copenhagen Declaration, para. 12, 16) or the Court’s bad faith case law on Article 18 ECHR, for example the Grand Chamber judgments Navalnyy v. Russia and Merabishvili v. Georgia. Timeliness is a further issue, which leads to questions on the Court’s reluctant admission of Turkish cases after the 2016 crackdown. In all this, coherence across countries is key: the red lines must be applied even-handedly to all club members. The club must respect, and visibly respect, its rule of law-standards in its own actions.
Given the magnitude of the problems, their systemic and structural dimensions, more is needed than addressing the individual situation at hand. Often, cases are symptomatic of deeper problems which require deep and lasting change. The Court’s orders should clearly point out what the club of liberal democracies requires in terms of structural change. It is important that the Copenhagen Declaration unequivocally supports the pilot judgment procedure (Copenhagen Declaration, para 17).
Here, the question arises why the Court is using this instrument so sparingly, last in Rezmiveș and Others v. Romania . True, the Court continues to identify systemic deficits and has ordered general measures in some 30 cases in the last year. However, the potential of the pilot judgments seems not to have been fully exploited. The Court’s reticence might be explained in the context of a fear of non-compliance. Non-compliance with a pilot judgement might be seen as damaging its authority, the Court’s most important asset. The reactions to its decision in the case Burmych and Others v. Ukraine in late 2017 are well known. In times of crises, however, the compliance of a deviant government should not be a standard by which to judge the Court’s jurisprudence.
Don’t judge the Court on compliance rates
A Court decision that confronts an elected government on its path from a liberal to an illiberal order is unlikely to be swiftly executed. Sometimes, these governments take pride in resisting Europe. If their compliance were the towering yardstick, the Court’s authority would be surrendered to the whims of those governments. Moreover, the Court would be strongly discouraged from addressing the most important challenges to the European public order. All that makes no sense.
Of course, compliance, full compliance, remains the dominant standard when judging the reactions of the responding State Party (Copenhagen Declaration, para. 19 ss.). With this statement, the Convention States unequivocally back the Court’s authority. But while compliance is the primary yardstick to judge the respondent state, other considerations appear more important to judge the Court. One is that its jurisprudence, by facing deviant governments, allows the club to maintain its identity as a club of liberal democracies.
The other is that its jurisprudence strengthens domestic forces which struggle in maintaining liberal democracy in those countries. In this respect, it is worth recalling the role of the 1975 Helsinki final act which supported dissident individuals and groups and thus the liberation of Soviet Europe. In that vein today, the Court’s jurisprudence, identifying concretely what a government must do, can support such domestic forces. Much can be learnt from the Inter-American system which has over the last 40 years succeeded in making human rights relevant in a region where human rights were despised by almost all sides. Thereby, the San José Court is supporting democratic transitions in many countries. Accordingly, the yardstick for a human rights court in such a constellation is not whether a government obeys, but whether it succeeds in positioning human rights, rule of law and constitutional democracy as powerful arguments in institutional procedures as well as public discourses.
The potential of the procedural margin of appreciation
The procedural margin of appreciation-doctrine rests on a clear principle: The Court refrains from second guessing the best interpretation and application of Convention rights in a concrete case, if the domestic court has considered convincingly the Convention as interpreted and applied by the Strasbourg court. The doctrine is currently in the process of being refined through a European dialogue. In this regard, the German Federal Constitutional Court has laid out its understanding in its decision of 12 June 2018.
This doctrine might become, notwithstanding Protocol 16, what the preliminary ruling procedure is for Union law and the conventionality control-doctrine for the American Convention on Human Rights: A tool to closely link domestic and international institutions, so that international human rights are deeply embedded into the domestic legal order. As the EU experience and the Inter-American experience show, this promises a mutual strengthening of judicial institutions and helps the legitimacy as well as the effectiveness of international jurisprudence. The doctrine responds to principles cherished in the Copenhagen Declaration, namely shared responsibility, subsidiarity, and complementarity.
Thereby, this doctrine promises to strengthen the European club of liberal democracies. With respect to current critiques, it can meet the reproach of a too intrusive Court. At the same time, by embedding the Convention in the domestic legal orders, it has a preventive effect. Of course, the doctrine is likely to reduce the Court’s role as a human rights trend setter. A retreat from this role, however, seems acceptable, even advisable, as the judicial protection of individual rights, a rarity in the 1970s, has become a normal feature in most European legal systems. Indeed, such a recalibration of the Court’s role can be read into some of its recent decisions.
The doctrine also holds promise for situations of estrangement. The estrangements of some members from the club come with arguments: the values of national identity, of national diversity, of national democracy. Being a club of 47 democracies of very different cuts, such arguments carry weight. The doctrine might help to accommodate such claims while protecting what is essential to the club, because it is conditional that those estranged members allow for a true role for the Convention in the domestic sphere. This is a narrow and uncertain path, built on the conviction, ridiculous to some, that legal doctrines can provide for common ground in deeply conflicting constellations. Yet, this idea of the autonomy of the law defines, more than anything, European legal culture.
Author’s Note: Key note to High-Level the Expert Conference on the ECHR system, 31 October – 2 November 2018. Many thanks to the Dienstagsrunde as well as Christina Binder and Raffaela Kunz for their valuable critique.