Report on ‘Reforms in UN Treaty Bodies and the European Court of Human Rights: Mutual Lessons?’
By Laura Létourneau-Tremblay, Researcher, MultiRights/PluriCourts and Claire Poppelwell-Scevak, Research Assistant, PluriCourts
The concluding conference of the MultiRights project took place 29 February – 1 March 2016 at the Faculty of Law of the University of Oslo. MultiRights is a 5-year project (2011-2016) concerned with the legitimacy of the human rights judiciary and its reform proposals. At this concluding conference the aim was to analyze and compare the reform processes of the UN treaty bodies and of the European Court of Human Rights (ECtHR), aiming to identify lessons across these processes
European Court of Human Rights
The opening of the conference by Professor Geir Ulfstein (co-director PluriCourts and MultiRights) was followed by a general presentation of the reform process of the ECtHR by Professor Başak Çali (Koç University) and Morten Ruud (Ministry of Justice, Norway) who looked at the reform of the ECtHR as a whole. The clear message from both presenters was that the reform proposals now need to address not just the Court but also the domestic structures within the member states. This is the new frontier of reform. Academics and bureaucrats alike should focus on how national parliaments can best implement the European Court’s jurisprudence, and how to enhance the efforts of the Committee of Ministers to help the Court.
Vit A Schorm (Ministry of Justice, Czech Republic) then continued this discussion with a more in-depth analysis on the procedure for selection of members and judges for the Court. He argued that we need a more in-depth analysis on the current system of selection. The existing structures such as the Convention itself may have to be amended to allow for a more transparent and fair selection. Dr Hans-Jörg Behrens (Ministry of Justice, Germany) stressed the need for the judiciary and its registry to be aware of its role and its limitations if it wishes to avoid fragmentation in the future. Dr Behrens argued that this awareness was the single most important factor to bolster the Court. Professor Martin Kuijer (VU University Amsterdam) then spoke of the recent strengthening of the subsidiarity principle an increase in dialogue between the Court and the domestic judiciaries. Despite great progress, much is left to be accomplished, and he highlighted the significance of judicial dialogue in supporting this reform.
UN Treaty Bodies
The conference then turned to the reformation of the UN treaty bodies. Petter Wille (Norway’s National Institution for Human Rights) started the panel with a general overview on what has been achieved so far and which areas in particular need to be addressed for further improvement. Wille concluded that the UN treaty body system as it currently stands can be sustained on the resources it has for the short term. However, more needs to be done, including greater transparency and state involvement for it to last more than a generation. A challenge of transparency is that this isn’t always done in practice. Sir Nigel Rodley (University of Essex) illustrated this in his presentation on how members are chosen by their state for these treaty bodies. Sometimes the positions are not advertised externally, so many qualified applicants are unaware of these positions.
Professor Martin Scheinin (European University Institute) suggested reforms that he argued are necessary for the treaty body system to work. He noted that other human rights systems, such as the Inter-American Court of Human Rights (IACtHR) and the International Criminal Court, spend a considerably larger amount more than the UN treaty body system as a whole. In addition to the financial aspect, the organisation and administration of these bodies - in general - need reform. Scheinin suggested that treaty bodies should be encouraged to do part of their work in parallel chambers (as is already done by the Committee on the Rights of the Child) and allow an extra week per year for a session to consider individual complaints. Scheinin stressed that by helping the UN treaty bodies in even a small way will give back ten-fold in addressing individual human rights complaints and bolstering the integrity of the international human rights system.
Professor Kirsten Sandberg (University of Oslo) analysed the decisions of these treaty bodies and looked to the criticisms of fragmentation and inconsistencies they are now encountering. She stressed the need to not over-load current secretariat, in order to give them enough time to write well-reasoned drafts. Members of the treaty bodies should be specialists in the relevant fields, to reduce the inconsistencies in the decisions. Professor Yuval Shany (Hebrew University of Jerusalem) concluded the session by looking to the influence of the margin of appreciation and the doctrine of subsidiarity in the treaty bodies as compared to its implementation in the ECtHR. Shany argued that it is understandable that the HRC would not accept the margin so readily as the ECtHR due to the differing democratic values of the member states of the former as well as the lack of legally binding power awarded to the UN treaty bodies in general. He argued that the Committee also applies aspects of subsidiarity and the margin of appreciation.
Is it possible to compare the reform processes of the UN treaty bodies and of the ECtHR? Or are we comparing apples and pears? What are we really comparing and how can we compare these two reforms processes? Some meaningful lessons were drawn.
Professor Martin Kuijer highlighted, inter alia, the importance of the authority of the UN treaty bodies and the ECtHR which will much depend on the quality of reasoning in their decisions. Professor Eva Brems (Ghent University) proposed to build on the idea of a ius commune of human rights in order to strengthen and guarantee the legitimacy of human rights monitoring bodies. Professor Kjetil Larsen (Norwegian Centre for Human Rights) compared the ECtHR and the Committee on the Rights of Persons with Disabilities (CRPD), suggesting that it might be more useful not to group all UN treaty bodies into one group when trying to compare them but rather to focus on one specific treaty body. Larsen concluded by proposing to compare two systems - the European human rights system and the UN system – rather than comparing a court and a group of very diverse treaty bodies. Professor Yuval Shany focused more particularly on a comparison between the ECtHR and the Human Rights Committee (HRC). He stressed that one has to understand the structural differences of the two regimes which may lead to differences in influence and legitimacy. Regional human rights bodies, such as the ECtHR and IACtHR, enjoy much stronger support from States than the UN system and the HRC. In addition, the HRC does not benefit from a political body to monitor the implementation of its decisions making: its work is less influential. Bearing in mind these differences, some commonalities in both systems are also to be observed. For instance, similarly to the ECtHR, the HRC is facing a caseload backlog which will eventually necessitate restructuring the treatment of individual communications. The experience of the ECtHR in dealing with this challenge could benefit the HRC in finding potential solutions.
Professor Başak Çali emphasized the importance of the accessibility of human rights mechanisms and decisions. The decisions rendered by UN treaty bodies are much less accessible than the decisions of the ECtHR are. The accessibility of a system might lead to increased participation and interest in the system itself. Accessibility may also lead to the inclusion of ‘outsiders’ in a reform process of ‘insiders’. The reform process of the UN system might be regarded as a process purely driven by the concerns of ‘insiders’ whereas the reform process of the ECtHR has greatly benefited from the inputs of both ‘insiders’ and ‘outsiders’.
The reform process of the ECtHR might be perceived as more successful than the process to strengthen the UN treaty bodies. However, Michael O'Flaherty (EU Agency for Fundamental Rights) underlined the complex political context in which the UN system evolves and recalled the particular value of its report review procedure.
This two day conference has confirmed that these two distinct human rights universes face challenges of a similar nature. Hence, both systems could take advantage by sharing knowledge and experience with regards to the selection of members and judges, the ever-problematic caseload and the quality of reasoning in decisions. Views differed on whether the margin of appreciation doctrine and the principle of subsidiarity embedded in the European human rights system can also be applied to the UN treaty bodies. Some fear that it could render the UN treaty bodies too deferential to States. Moving away from a state centric interpretation of subsidiarity, Professor Andreas Føllesdal (co-director PluriCourts and MultiRights) proposed the elaboration of a more legitimate interpretation of subsidiarity and margin appreciation doctrines based on a more person centric conception.