The final version of new article, written with Kanstantsin Dzehtsiarou, is now published in the International and Comparative Law Quarterly. The article, entitled (rather pessimistically) “Mission Impossible? Addressing Non-Execution through Infringement Proceedings in the European Court of Human Rights”, picks up on a recent proposal that Article 46(4) of the ECHR would be used to address non-execution. This allows the Committee of Ministers to refer a case back to the Court in the case of non-execution by the contracting state. In short, we argue that such an approach is misguided on three grounds: practicality, futility, and backlash. Fundamentally, we say, the proposed solution does not ‘fit’ the problem of non-execution properly understood.
So, what is the proper understanding of non-execution? We argue that complex situations of non-execution can be said (broadly) to be principled or dilatory. Explaining these, we say:
The former can be said to relate to cases where States refuse to execute because of a deep-seated disagreement not only with the outcome but, perhaps more significantly, with the principle of an international court’s decision ‘overturning’ a domestic, democratically arrived at position in respect of a particular matter. There are very few instances of this type of non-execution, which is ultimately related to the fact that reasonable disagreement about human rights and about the meaning of a human rights treaty is possible, even when parties truly believe in and are committed to the protection of human rights per se. The latter relate to cases where States are generally dilatory in their execution of adverse judgments from the Court, so that individual cases of non-execution might be connected to this general pattern of resistance to giving effect to the outcome of international judicial supervision in the area of rights.
If we understand non-execution of ECtHR judgments in a nuanced way, then it becomes clear that infringement proceedings under Article 46(4) will not work to address the problem. The practical objection is pretty straightforward: an Article 46(4) reference can only be triggered by a vote of two-thirds of the Committee of Ministers following service of an official notice to comply. For lots of reasons—pragmatic, political and otherwise—the likelihood of that super-majority being achieved is vanishingly low. However, even if the practical hurdle could be overcome, an Article 46(4) proceeding does not address the reason why the judgment has not been executed. Where non-execution arises from a resource shortage, an infringement proceeding does not provide resources. Where non-execution arises out of principled disagreement with the judgment, it also does nothing to address that disagreement. As we write:
If States fail to execute because of either principle or dilatoriness it seems unlikely that the scolded State would suddenly see the error of its ways were the Court to scold it again, especially after the Committee of Ministers has already unsuccessfully attempted to ensure execution.
All of this goes to the third reason why we argue against reliance on Article 46(4) to address non-execution: the possibility of backlash. To put it in summary terms:
In a climate in which, in at least some Contracting Parties, there is a deep popular scepticism about the Court, involving the Court in the (ultimately political) process of execution may well add fuel to the fire of the illegitimacy discourse. It is difficult to see how actors who already considered the Court to be illegitimate, interfering and expansionist would have their minds changed by infringement proceedings in which the Court might be said to have a political or self-interested motivation in reaching one conclusion or another, given that it would in some ways be called upon to adjudicate upon the effectiveness of its own judgments.
Does this mean that non-execution should not be addressed? Of course not. Throughout the paper we recognize the legitimacy and effectiveness costs of non-execution, not to mention the international obligation under Article 46(1) to execute an adverse judgment against the contracting party. However, a turn towards Article 46(4) misses the point. Non-execution is a serious problem, but its solutions will not be legal. Article 46(1) is as much legal leverage as should be needed: it resolved unequivocally the question of whether a state is obliged to execute a Court judgment. Another decision by the Court will do nothing to make that obligation more binding or, indeed, more compelling for the non-executing state. As we write at the end of the paper:
Non-execution is a political problem requiring political solutions. Failure to recognize that may well spell ‘mission impossible’ for the system; an outcome that would be desired by some States, but disastrous for all European peoples.