EU Accession to the European Convention on Human Rights

On St Patrick’s Day, while we were engaging in national celebrations, the European Commission was addressing the accession of the EU to the European Convention on Human Rights (ECHR). For those who are not familiar with the history of this issue, the European Convention is the basis of human rights protection across Europe and is under the custodianship of the Council of Europe (an organisation of 47 Member States including all EU Member States). The EU has long harboured an ambition to join the Convention. However, in 1994, a decision of the European Court of Justice (Opinion 2/94) declared that the EU could not join the Convention without an explicit treaty basis allowing it to do so. In the absence of such a basis in the EC and EU Treaties, accession would have to wait.

Dickson on the ECHR and Northern Ireland

Congratulations to Brice Dickson, professor of international and comparative law and director of the human rights centre at the QUB School of Law, whose new book entitled The European Convention on Human Rights and the Conflict in Northern Ireland has just been published by Oxford University Press. According to the blurb:

This book provides the first comprehensive account of the role played by the European Convention on Human Rights during the conflict in Northern Ireland from 1968. Brice Dickson studies the effectiveness of the Convention in protecting human rights in a society wracked by terrorism and deep political conflict, detailing the numerous applications lodged at Strasbourg relating to the conflict and considering how they were dealt with by the enforcement bodies. The book illustrates the limitations inherent in the Convention system but also demonstrates how the European Commission and Court of Human Rights gradually developed a more interventionist approach to the applications emanating from Northern Ireland. In turn this allowed the Convention to become a more secure guarantor of basic rights and freedoms during times of extreme civil unrest and political turmoil elsewhere in Europe.

The topics examined include the right to life, the right not to be ill-treated, the right to liberty, the right to a fair trial, the right to a private life, the right to freedom of belief, the right to freedom of expression, the right to freedom of assembly, and the right not to be discriminated against. The book argues that, while eventually the European Court did use the applications from Northern Ireland to establish important human rights principles, their development was slow and arduous and some gaps in protection still remain. The book illustrates the limits of the European Convention as a tool for protecting human rights in times of crisis.

I look forward very much to reading this. The ECtHR’s approach to the conflict in Northern Ireland was, in many cases, very ‘light touch’ and deferential although, as the blurb notes, it became more rigorous over time. Although the book deals with the specific context of Northern Ireland I am sure that the theories and arguments will be generalisable beyond that. As NI is one of the main contexts within which the limits and possibilities of the Convention’s capacity to be effective in times of terroristic crisis I have no doubt the book will be of general interest to readers grappling with these difficult questions.

Interlaken and the Role of the European Court of Human Rights

This week saw the much anticipated Interlaken Conference on the Future of the European Court of Human Rights (briefing paper), intended to secure workable solutions for the future of the Court. The Court, which started as a part-time court working with a commission, is now full-time and has developed under the recently ratified Protocol No. 14 (which comes into force on 1 June 2010) in order to try to meet the very real challenges of resources and workloads. Those challenges, however, are not entirely resolved by Protocol No. 14 and further work is needed in order to try to ensure the stability and continuing operation of the Strasbourg Court as an important part of Europe’s human rights infrastructure. This raises questions as to what the role of the Court is: is it an adjudicative court that ought to focus mostly on resolving disputes and providing redress, or is it a constitutionalist court? Ought it to be both and, if so, is that a feasible objective? In this post I intend to outline some of the challenges faced by the Court, consider the extent to which this question as to role and function remains unresolved by Protocol No. 14, and consider how this debate might be relevant in the Interlaken process.

The Role of the European Court of Human Rights

The European Court of Human Rights has four main formalised functions to hear inter-state complaints where they arise; to hear individual complaints where they arise and are deemed admissible; to provide Advisory Opinions when requested (Art.47, ECHR); to clarify interpretation of judgments and assess whether judgments are being abided by where requested by a super-majority of the Committee of Ministers (Art.46, ECHR). These are the formal functions of the court, however, and a mere recitation of them or even a detailed analysis of them does not answer the more fundamental question of what role the Court is intended to play.

It is commonly assumed that there is some tension between the Court’s roles as an adjudicative court in individual cases (albeit in a subsidiary manner as complainants must exhaust all domestic remedies first) and its role as a constitutionalist court for the Council of Europe. If the Court is primarily intended to carry out the former role then rules relating to admissibility, remedies, supervision of judgments etc… have an importance that must be jealously guarded. If, however, the Court also, or even primarily, has a constitutionalist role then what is important is not that every individual complainant would have her case heard and adjudicated upon, but rather that judgments of the court would outline and formalise (or ‘harden up’) the constitutionalist principles of the Convention. This kind of role does not require the Court to have particularly open admissibility rules or for every individual complainant to have satisfaction of some kind; rather it requires a more strategic kind of role in terms of case selection (not, one would think, entirely dissimilar to the certiorari decisions of the US Supreme Court [intro]).

Italy, Tunisia and the European Court of Human Rights

Via Statewatch comes news that the European Court of Human Rights is still battling with the Italian government’s penchant for ignoring interim measures under which the Court provides that applicants are not to be transferred to Tunisia pending the hearing of their Article 3 (torture, inhuman and degrading treatment and punishment) claims.