Monday, 6 April 2009

British Law Lord Heavily Criticizes European Court

The British Law Lord Hoffmann has heavily criticised the European Court of Human Rights, as the BBC reported last Saturday in a news release. In a lecture held at the Judicial Studies Board on March 19, Lord Hoffmann argued the following about the Court in Strasbourg:

"In practice, the Court has not taken the doctrine of the margin of appreciation nearly far enough. It has been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States. It considers itself the equivalent of the Supreme Court of the United States, laying down a federal law of Europe."
He also implies that part of the Court's backlog of cases is due to this approach. Certainly worth a read (although I do on most points not agree with his analysis), since it is rare that one of the highest judges of any ECHR state party is so critical of the Court.

Many thanks to Ed Bates of the University of Southampton for notifying me of this!


Peggy said...

I was really disappointed by this paper.
Lord Hoffmann agrees with the principles laid down in the convention as long as their are not enforced by an international Court! But should we let, for instance, people who have been tortured by national authorities seek redress before national courts? The idea of the entire project was to offer an independent remedy for the people of Europe.
Lord hoffmann uses 3 cases to build his case against the court but it quite easy to find 3 cases with which you disagree to draw general adverse conclusions on an institution. He also criticises judicial activism from the court but praises the margin of appreciation, which is, but I may be wrong, an creation of the court.
Well I could go on but I'd better stop now.
Thank you for the post

Sarah Johnes said...

Taking a Universalist approach to the margin of appreciation one might say those controversial societal values at national level should have no bearing upon the jurisprudence of the European Court of Human Rights. The rights it protects are of such import that their status at the domestic level should not be a consideration for a court whose role is to ensure that adequate legal protection is being given to them. One might additionally note that the doctrine does not feature in the convention, and as a political creature of Strasbourg might have assumed competences not initially envisaged. But this is flawed: It assumes that countries prioritize human rights protection above all else, which is simply not the case. The margin is a vital interface between Convention standards and the decision-making process of the court, beneficial for both the nation under scrutiny and the court since it provides a more effective mechanism to protect rights- the Convention can be taken as a universal minimum standard, guaranteeing certain rights, and yet also respecting a degree of discretion by which they may be implemented in keeping with a country’s own traditions. The state may govern in the way it feels appropriate, balancing national security against human rights at times of crisis and this will be taken into account by the court. Similarly if the court feels that fundamental guarantees are being short-changed they may take a narrower margin and hold the state to account. Here I agree with a human rights expert Ana Nacvalovaite that this is the right approach: human rights should remain a dynamic area, and fixed standards would mire their natural evolution.