Scattered responsibility and Melian dialogue?
The Danish Chairmanship of the Council of Europe has proposed a new installation to the reform saga of the European Court of Human Rights (ECtHR). Their recipes sound innocuous: no one can be against ‘sharing responsibility’ for human rights protection, or for improved ‘dialogue’ between the Court and states. Yet some suspect that one may smile, and smile, and be a villain; at least it may be so in Denmark. Many fear that in the Danish details, sovereignty will trump human rights protection. Alice Donald and Philip Leach have provided detailed annotations to the Copenhagen draft in support of the criticism of eight NGOs in their joint response of 13 February 2018.
Broader trends and issues in the shadows of subsidiarity merit further attention, lest shared responsibility morphs into no one’s responsibility, and the discursive dialogue turns Melian, allowing state executives to do as they can and leave the Court to judge as it must.
States surely have grounds for concern about international courts, who have grown in numbers, functions and influence. State ambivalence is even greater about the ECtHR that allow individuals to challenge states. Still, some of the recent resisters are surprising. They count not only those with weak traditions for human rights and the rule of law, among the main suppliers of the large backlog of ECtHR cases – 57 350 by 31 January 2018. Vocal critics include Denmark and other states where little is rotten when it comes to human rights. One explanation may be prominent political parties’ general calls to renationalize authority from international institutions, further fueled by perceptions that the ECtHR protects bad people, criminals in particular, and hinders the defense of democracies under threat.
The vague phrases of ‘shared responsibility’ and ‘dialogue’ serve to hide the striking Copenhagen ‘rebalancing’: to restrict the Court and empower the states. Earlier reform proposals by High Level Conferences in Interlaken (2010), Izmir (2011), Brighton (2012) and Brussels (2015), expressed states’ concerns both with the Court’s dynamic interpretation and with the backlog. To their honour, several of the Ministerial Declarations – especially the last from Brussels – focus on steps to alleviate the root causes of the backlog, namely states’ human rights violations and failures to execute the Court’s judgments. The draft Copenhagen declaration has no new recommendations for how the states can reduce their supply of cases brought to the Court, and how states should improve their execution of judgments. Judging from the new proposals, the drafters concern is not states’ lack of respect for human rights, but the Court’s interference in domestic politics and the backlog of cases.
The aims of reform
The objectives of reform should be to promote and protect the independent, supportive role of the ECtHR as specified in the Convention Preamble and as developed historically – and only too necessary today.
By this standard, the Court should protect states from human rights violations, and from sliding into non-democratic rule. It should:
Supplement, strengthen and safeguard domestic processes of varying democratic quality, including protecting the conditions that make democratic decision-making worthy of respect, such as freedom of the press and freedom of association;
Monitor minority rights, which are at risk even in well-functioning majoritarian democratic processes among voters of good will, not to mention the risk under populist rule; and
Finally, the Court should seek to protect the rule of law including the independence of domestic judiciaries.
The draft Copenhagen Declaration calls for:
‘the concept of shared responsibility, by which a better balance may be found between the national and European levels of the Convention system, and an improved protection of rights may be ensured’ (para. 11, emphasis added).
So what is new and likely to improve rights protection?
Indeed, the metaphor of ‘balancing’ is misguided. The proper relationship between the state and the Court is not a 0-sum of responsibilities – though the Copenhagen declaration seems to insinuate that at times: It states that the Court:
‘should not take on the role of States Parties whose responsibility it is to ensure that Convention rights and freedoms are respected and protected at national level’ (para. 22).
Subsidiarity may sometimes defend the immunity of local autonomy against intrusion from central authorities. But subsidiarity also requires central authorities to support the well-functioning of local authorities. When domestic authorities can be trusted to protect and promote human rights, as seen by their good faith consideration of the Convention, the Court may grant them a ‘margin of appreciation’ regarding the hard balancing of some rights restrictions against other rights and societal objectives. However, when domestic authorities fail in their responsibilities, subsidiarity supports and may indeed require ECtHR intervention to strengthen domestic efforts – not only the executive, but also the legislature and the judiciary. By this more nuanced account of subsidiarity, the Copenhagen draft fails, and consistently errs in favour of state sovereignty.
Consider six flaws in the Copenhagen state centric subsidiarity:
1 Limited domain of the margin of appreciation
Even in the best of cases, the Court should not grant states a margin to restrict all Convention rights – such as the non-derogable rights against torture or forced labour.
2 National traditions are not sacrosanct because states say so
One of the worrisome implications of the state centric subsidiarity conception is how the draft declaration will secure support of human rights by all people in Europe by letting states protect those rights ‘in accordance with their constitutional traditions and in light of national circumstances’ (para. 14). To grant states this discretion is to revoke the protection minorities sorely need precisely against oppressive historic traditions and circumstances.
3 Court abdication from proportionality assessment?
The draft declaration insists that:
‘if a genuine balancing of interests has taken place at the national level, it is not the Court’s task to conduct the proportionality assessment afresh. Where domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and the Court’s case law, and adequately balanced the interests at stake, it is not for the Court to substitute their assessment with its own, unless is has identified strong reasons for doing so’ (para. 24).
To propose this as a blanket rule is too sweeping, based on recent Court judgments (especially Ndidi v. the UK, 41215/14 paras 76, 81).
4 Differences in democratic policies does not give immunity from scrutiny
Likewise, protection by the Court is at risk if it is left to domestic democratic organs to ignore human rights in ‘matters of general policy, on which opinions within a democratic society may reasonably differ widely’ (para. 23) – see e.g. SAS v France 43835/11 (GC) para. 129. Variations among European states due to democratic majoritarian decision-making merit respect – but only within limits. And the pruning of majority policies for the sake of minorities, the rule of law and well-functioning democratic processes cannot be simply left to the majority. The fact that the ‘the role of the domestic policy-maker should be given special weight’ does not immunize from Court scrutiny.
5 Whose standards of review?
The interpretational standards of the Vienna Convention on the Law of Treaties should be respected. The draft declaration introduces an additional standard that the text of the Convention should be interpreted ‘reasonably’ (para. 55). This risks politicization – at the expense of legal certainty and human rights protection.
6 No issue area should be exempt from standards of review simply because states say so
The Copenhagen draft holds that when examining cases related to asylum and immigration, the Court should ‘avoid intervening except in the most exceptional circumstances’ (para. 26). The focus on asylum seekers reflects the current political concerns in several European states, including Denmark. However, this is precisely the sort of majority preferences against minorities that may need particular protection against majoritarian ill will or ignorance. For states to require less strict scrutiny for no other reason than that they want to is highly troubling, in light of the historic backdrop for establishing the European human rights system.
The draft Copenhagen declaration proposes several ways to enhance the ‘dialogue’ between the Court and other parties, especially state executives. Who can be against dialogue?
There are several reasons for concern about the proposals. They focus almost exclusively on the need to ensure state parties’ interventions, not civil society etc. (paras 34, 39, 40, 41). The Court should instead listen also to civil society and NGO groups, and speak with domestic judiciaries and parliaments. Those who are not invited to the table often find themselves on the menu.
We should also be wary when such ‘dialogue’ is not among equals. These problems of ‘dialogue’ are pressing for international courts, such as the ECtHR. Such courts lack the power both of the purse and of the sword – indeed, it is the state parties that control both.
What is more, human rights courts are peculiar in that they seldom adjudicate among states. If that was the case, states might more often discuss the rules for dispute settlement under a partial ‘veil of ignorance’, not knowing which rule specification they would benefit from most in the long run. But when it comes to human rights, state executives may more easily agree that they are all better off with weaker human rights court supervision. It is others than the executive that benefits from stronger human rights protection: civil society, parliaments, etc. Dialogues about the ECtHR’s level of supervision and support should therefore not be limited to state executives, but include these affected parties. The Court should be able to give many its ear, to avoid being the voice of the states.
Dialogue may also raise issues with respect to the separation of powers between the Court and the Committee of Ministers. The draft declaration states that the dialogue ‘should take place with respect for the independence of the Court and the binding character of its judgments’ (para. 33). But the ‘use of thematic discussions in the Committee of Ministers on major issues relating to the execution of a number of judgments’ (para. 37 c) can easily become a procedure of second-guessing the judgments of the Court, and establish the Committee as a ‘fifth instance’.
Shared responsibility and dialogue are important overarching themes to maintain and improve the European system of human rights protection under stress. But the draft Copenhagen declaration specify these honorifics in ways that will likely damage the system rather than improve it. The proposals will empower the executives of states and weaken the Court – without even trying to explain how the changes might increase the respect for human rights.
The draft appears to ignore and even abet several current urgent issues in Europe: populist forces that abuse their majority positions to undermine the domestic rule of law and impose restrictions on the rights of minorities. Consider that the draft singles out one vulnerable group, i.e. immigrants, whose treatment by states should be subject to less scrutiny by the Court.
Shared responsibility and dialogue should be further developed, guided by sound understandings of the important supportive tasks of the Court based on a broader understanding of subsidiarity. The human rights problems in Europe mainly stem from disrespect for the human rights standards by states and non-execution of the Court’s judgments. When supervision and support for domestic institutions that protect the rule of law and human rights is urgently needed, more unreasoned deference to states is not part of the solution.