Copenhagen – much ado about little?
By Geir Ulfstein and Andreas Føllesdal. This text was first published on the EJIL Talk - Blog of the European Journal of International Law.
The Ministers of the Council of Europe adopted the ‘Copenhagen Declaration’ Friday April 13 concerning the perpetual reform of the European Human Rights System. Previous installments were agreed at Interlaken, Izmir, Brighton and Brussels.
On the face of it not much is new in the Declaration. It is still interesting, not least for what the Ministers agreed not to include from the draft circulated by the hosts April 5. The Danish draft urged states to reign in the Court by a dramatic extension of the ‘margin of appreciation,’ and by more control through political ‘dialogue.’ The robust rejection of these proposals also show us how the Court is independent yet accountable, to states committed both to protect human rights in Europe, and to complex conceptions of sovereignty and subsidiarity.
The agreed declaration is strikingly different: Instead of being skeptical to the Court’s achievements and its course, the final Declaration is explicitly supportive of the Court and its independence from the states. The large backlog of cases gives reasons for “serious concern”, though the principal problem is not the Court, but rather some states’ failure to implement the Court’s judgments.
What is new? The Court and national authorities
The Declaration does not accept the objections against dynamic interpretation, which the draft considered a major challenge. Rather, it says that the Court should give “appropriate consideration to present-day conditions” (26).
The Declaration establishes that the Court through its case law “has provided a body of case law interpreting most Convention rights. This enables the States Parties to play their Convention role of ensuring the protection of human rights to the full” (paragraph 8).
This is an important starting point. The extensive case law from the Court enhances national authorities’ ability to implement the Convention – as interpreted by the Court.
Accordingly, the Declaration (28 c) seems to affirm but also generalize parts of the Court’s emerging ‘margin of appreciation’ doctrine. There must generally [our emphasis] be “strong reasons” for the Court to overturn the decisions of domestic courts concerning restrictions of the rights in Articles 8 to 11, if they have performed a proportionality test in accordance with the criteria of the Court.
This goes further than the Brighton and Brussels Declarations. The account is based on the jurisprudence of the Court. The Grand Chamber held already in the von Hannover (No. 2) case (2012) that “[w]here the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of domestic courts” (107). The Court’s subsequent jurisprudence has confirmed this approach..
In its Opinion on the draft Copenhagen declaration, the Court emphasizes the context specific nature of its pronunciations on subsidiarity since it “in any given case will depend on factors including the provisions involved, the exact nature of the complaints raised, the particular facts of the case and its procedural background. It is therefore a matter for the Court to assess each time as it performs its function in accordance with Article 19 of the Convention, and in light of the relevant case-law” (13).
This point of clarification from the Court seems compatible with the Declaration, which underscores that “[t]he margin of appreciation goes hand in hand with supervision under the Convention system,” and the Declaration adds – beyond what the Draft proposed: “and the decision as to whether there has been a violation of the Convention ultimately rests with the Court” (28 d). The Declaration also insists that ‘strengthening the principle of subsidiarity is not intended to limit or weaken human rights protection’ (10). The standard adopted in the Declaration may nudge the Court to clarify the principle of subsidiarity and criteria for the required domestic “balancing exercise.”
The Danish draft required the Court to exercise less strict review for immigrant cases. This vanished without a trace in the final Declaration. The Declaration also dismisses Danish proposals that the Court generally should practice less strict review and defer more to the various “constitutional traditions and in light of national circumstances.”
A major ‘rebalancing’ proposal disappeared. The Danes did not succeed in their efforts to control the Court through a political ‘dialogue.’
Instead, the Declaration welcomes thematic discussions in the Committee of Ministers – but limited to “major issues relating to the execution of judgments” (37 d) (emphasis added). The Declaration confirms the value of a “constructive and continuous dialogue between the States Parties and the Court on their respective roles in the implementation and development of the Convention system, including the Court’s development of the rights and obligations set out in the Convention,” but subject to “the independence of the Court and the binding nature of its judgments.” The Declaration also expressly widens the dialogue to include civil society (33).
The ministers rolled back the draft proposal that the Danes would host a series of informal meetings to discuss “general developments in the jurisprudence of the Court”: the Declaration invites the Danish Chairmanship to host one such informal meeting in 2018 for States Parties and other stakeholders, but insists that the discussion must take place with “respect for the independence of the Court and the binding character of its judgments” (41).
The Declaration accepts more use of third party interventions. But this is within normal judicial procedure, and does not pose the same risks of political interference with the Court’s independent interpretation of the Convention and application to cases.
The Declaration notes that “the Court’s caseload still gives reason for serious concern” (44) and the States Parties express “serious concern about the large number of applications still pending before the Court” (49). They will conduct “a comprehensive analysis of the Court’s backlog, identifying and examining the causes of the influx of cases from the States Parties so that the most appropriate solutions may be found at the level of the Court and the States Parties” (54 a).
The Declaration does not indicate any solution to the overload. One obvious tension is between the right to individual application and the number of applications. The Declaration strongly emphasizes the right to individual application “as a cornerstone of the Convention system” (48). At the same time, it supports that 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” (3). Strict application of jurisdiction and admissibility requirements, to only consider cases where applicants have suffered a significant disadvantage, also restrict the possibilities for individual applications – while upholding the possibility that well-founded applicants can have redress (32). The Declaration does not say anything about the controversial Burmych approach adopted by the Court (2017), whereby it refused to consider cases stemming from Ukraine’s non-execution of a pilot judgment – placing the responsibility with the Committee of Ministers.
All in all, when compared to the Danish draft, the Declaration gives strong support to the Court’s independence and legal approach, and underscores the importance of implementation by the states and the need for other actors to push for this. It does extend, somewhat, the margin of appreciation.
So what is the upshot? We may draw some more general and tentative conclusions.
The process shows that worries about a ‘democratic deficit’ of an independent ECtHR and fears of unchecked ‘rule by judges’ may be overdrawn, whilst illustrating another democratic deficit: of holding politicians accountable for secret inter-state negotiations. Clearly, the state parties could have agreed with the Danish draft to restrain the Court’s discretion. So the Court is not completely beyond control and change by domestic politicians, though the states have agreed to entrench the existing agreements so that changes require unanimity. The Declaration could have followed the Danish drafters in objecting to the Court’s practices, but instead explicitly confirms several aspects, thus providing an ex post democratic endorsement beyond tacit consent. Such ex post checking is an important form of accountability.
The state parties deliberately chose to not rein in the Court’s independence. Why? Perhaps because enough of the states recognize that the sacrifice they risk by having their own democracies subject to such regional human rights review by the Court is a necessary and tolerable price to pay for a European human rights regime that provides some protection and promotion of important values in the long run: – democracy, rule of law and human rights in Europe.
The Copenhagen Declaration endorsed a more attractive version of a principle of subsidiarity than what seemed to animate the Danish draft. The Declaration’s understanding of subsidiarity is not negative and state centric – not focused on respecting the autonomy of states – but rather a version that supports various actors’ initiatives to promote what states’ sovereignty should also ensure: the human rights of individuals.- Should the hosts be happy with the result? On the one hand, a long list of proposals in the draft did not survive into the final Declaration. On the other hand, the hosts have stimulated a thorough discussion among the states – and political parties, civil society and the academic community – about the powers the Court needs vis-à-vis the state parties. It will be hard for the Danish government to lament the loss of democratic control when their failure to constrain the independent Court is due to other democracies refusal to thus restrain the Court, on the basis of deliberation. Indeed, optimistic supporters of the Danish government may maintain that it got the best result it might hope for, in a two-level game partly shrouded in secrecy. The Danish government can honestly tell their voters that they tried their best to roll back the Court and push for more domestic control over issues of asylum – yet their proposal was rejected by the other European democracies.