Wednesday, 19 January 2011

Article on Court After Interlaken

In the wake of last year's Interlaken reform summit, discussions have started again about the core functions of the European Court of Human Rights. A recent working paper by Fiona de Londras of University College Dublin, later to be published in the Irish Human Rights Law Review, analyses the issue. The article is entitled 'The European Court of Human Rights, Dual Functionality, and the Future of the Court after Interlaken'. This is the abstract:

The existence of the European Court of Human Rights is generally considered to be central to the success of the European Convention on Human Rights. For that reason, there is ongoing and significant concern about the future of the Court; a future that is characterised by fragility emanating from a number of sources not least of which are increased political antipathy towards the Court from a variety of member states and enormous volumes of applications resulting in serious logistical difficulties. Taking the fragility of the Court’s future into account, this paper asks whether the dual functions that we expect the Court to perform — a constitutionalist function and an adjudicatory function — can be sustained or whether, in fact, that dual functionality contributes to the Court’s fragility.

This fragility clearly presents a crisis for the Court, and it is not one of which either it or the member states to the Council of Europe are unaware. Indeed, in early 2010 a conference was held in Interlaken, Switzerland in order to agree upon a declaration that would secure the future of the Court. At that conference and, indeed, in the Declaration that followed it, the basic principle of dual functionality was preserved. In this paper I argue that any solution that attempts to maintain a full commitment to the European Court of Human Rights acting as both a constitutionalist and an adjudicatory tribunal has only a limited prospect of success in securing the Court’s future. Not only is that approach one that fails to come fully to grips with the logistical nightmares from which the Court finds it so difficult to awaken, but it also allows for the Council of Europe system to abdicate its political role in ensuring compliance with the Convention and for domestic politics and courts to rely too heavily on the subsidiary regional Court instead of developing an autonomous jurisprudence on the Convention.


Mihai Martoiu Ticu said...

It seems to me that this kind of pessimistic words about the court were a part of the it's whole history. Despite that the court kept developing and becoming stronger and stronger.

jailhouselawyer said...

I am wondering if each Member State should have a Court of Human Rights? If this is workable, then the ECtHR would only act as an appeal court like the Grand Chamber is at present.

In my model, the Court of Human Rights would apply the Convention and the ECtHR's case law and not defer to domestic law. Furthermore, its decisions are legally binding on the State and have direct effect (subject only to an appeal within 3 months to the Grand Chamber).

Fiona de Londras said...

Thanks both of you for your comments and Antoine for blogging the piece. First let me say that the concerns raised in this article are raised precisely because I think we need to face up to reality if the Court is to remain strong and the Convention effective. The court has developed at a quick trot and generally well, but can this continue with the way things are now? There is a huge difference between the volume of applications and work the Court had in its early developmental phase and what it must now deal with.

Jailhouselawyer, I suppose the ideal is that domestic courts would apply the Convention in conjunction with their own law either as binding or interpretive authority. It is this kind of real internalisation and harmonisation of domestic standards with ECHR standards that will really allow for the Court to be a true and effective SUBSIDIARY constitutionalist court, I think. I argue in the piece that one of the implications of remaining committed to dual functionality is that it takes away some of the incentive for domestic courts and political processes to really and fully internalise the Convention and its standards. So I am not whether a seperate domestic court of human rights would do the job; I think a much more systematic entrenchment is required.