In 2015, Klaas de Vries prepared a PACE report on the implementation of ECtHR judgments in the contracting parties. In it, he suggested that Article 46(4) of the Convention–the infringement proceeding–could usefully be turned to in order to address non-execution. This provision, which has never been used, provides:
If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1.
The release of that report prompted me and Kanstantsin Dzehtsiarou (Liverpool) to reflect on the potential usefulness of Article 46(4) and, indeed, the dynamics of non-execution per se. The result of that is a paper forthcoming in 2017 in the International and Comparative Law Quarterly. The paper’s title (at least for now, but we think we will stick with it) is “Mission Impossible? Addressing Non-Execution through Infringement Proceedings in the European Court of Human Rights”. In the paper, we focus on what we deem ‘principled non-execution’ and ‘dilatory non-execution’:
It is essential that any attempt to seriously address non-execution would recognise the dynamics and reasons for non-execution. It is only once the root causes have been identified and considered that solutions can be devised or, indeed, that the insoluble nature of some challenges can be recognised. Thus, we propose here that non-simple non-execution can be broadly said to fall into two categories: principled non-execution and dilatory non-execution. 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 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. 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. The vast majority of cases of non-execution would fall into this broadly defined category. Importantly, the same State might well be a principled non-executor in some cases and a dilatory one in others.
Building on this distinction we go on to argue that resorting to the Court to address and resolve non-execution is impractical, futile, and likely to attract backlash. Both common sense and a critical engagement with the dynamics of non-execution illustrate that non-execution is a political problem requiring political solutions. As we argue near the end of the paper:
Not only are the practicalities of using Article 46(4) ECHR so complex as to make its deployment seem unlikely but—and more importantly—the almost certain futility and possible backlash that would flow therefrom make this avenue one in which, we argue, extreme caution should be displayed. If the Council of Europe is serious about tackling non-execution, then it must focus its attention on politics. It must take seriously the reality that, in some cases and at some times, non-execution is the politically popular and advantageous thing for the State to do with an eye to the domestic polity, and that the politics of reputation and peer pressure within the Council of Europe are not sufficiently strong to counter the domestic political ‘payoff’ of non-execution.
We hope to have an open access version of the paper to share soon, but in the meantime do feel free to get in touch directly if you would a copy of the un-typeset, un-finalised version of the paper.
Last night I was at the University of Liverpool to act as discussant of a lecture by Judge Johannes Silvis of the European Court of Human Rights who spoke about ‘terrorism and human rights’ in the jurisprudence of the Court. In his lecture, Judge Silvis outlined some of the key challenges for the reconciliation of rights and security in the cases that come before the Court, and discussed key jurisprudence as well as flagging important forthcoming cases (e.g. on surveillance, and the revisiting of Ireland v United Kingdom).
I was very pleased to be invited to respond to and discuss Judge Silvis’ lecture. Of course, in a short period of time (20 minutes) one cannot expect to do justice to the complexity of the jurisprudence in question, or indeed to challenging context in which these cases emerge and are adjudicated. However, having outlined what we might justifiable expect of a supranational, subsidiary, human rights court such as the ECtHR in the context of counter-terrorism and human rights (e.g. challenging underpinning assumptions about rights and/or security, challenging claims of extraordinariness, maintaining a clear and effective distinction between emergency and normalcy), I argued that the Court’s record is a mixed one. The key challenge is the deference afforded by the Court to state claims of (a) exceptional insecurity, (b) the necessity of the measures impugned, and (c) the content of the rights protected by reference to (a) and (b). I also questioned whether, notwithstanding this mixed record and the persistence of deference, the Court is capable of doing more while maintaining its legitimacy, especially taking into account its particular and limited nature.
The lecture was broadcast, but is also available now on YouTube, with my response/discussion starting at around 54 minutes in.
Last night I was very pleased to speak at the launch event for Human Rights in Collaboration, which was held in the beautiful Common Room at the Law Society in London. The event, entitled ‘Where are human rights headed?‘, was attended by almost one hundred delegates and featured short contributions from me (on terrorism and human rights), Nicole Bigby (on business and the human rights), and Stephen Grosz QC followed by a very involved Q&A session and discussion with the audience. The panel was excellently chaired by Jonathan Smithers, the President of the Law Society, and organised by Sarah Smith.
The event itself is the first in an ever-growing series of events across the country which aims to bring together academics, practitioners and civil society to discuss and debate human rights issues, often through unconventional means including poetry workshops. Human Rights in Collaboration will culminate with a closing panel, again in the Law Society, on December 10th when we will draw out and reflect on key questions and concerns that emerged across all of the events.
The programme of events was conceived and is coordinated by a small and informal committee of me, Nicole Bigby, Alison Klarfeld (BLP LLP), Sarah Smith (Law Society), and Rosa Freedman (Birmingham Law School). The website for the programme is here, and the events calendar is here (please note we are adding events all the time!).
If you are involved in an NGO, a member of a law school, or a legal professional of any kind who would like to organise an event to take place between now and December 10th do please get in touch!
My latest article, co-authored with Kanstantsin Dzehtsiarou (Surrey, but soon to be of Liverpool) has been published in advance access format by the Human Rights Law Review. The paper is entitled “Managing Judicial Innovation in the European Court of Human Rights” and can be download (££) here. The abstract is as follows:
Since its establishment, the European Court of Human Rights has developed into a constitutionalist actor within and beyond the continent of Europe; a development that is in no small part due to judicial innovations, such as evolutive interpretation. Such innovation has resulted in a tension between the Court and the contracting parties that may conceivably call into question states’ diffuse support for the Court. We argue that this tension is addressed by the Court by means of a nascent model of judicial self-restraint discernible from the Court’s docket management, its cognisance of non-legal factors in particularly contentious cases and its use of consensus-based interpretation. While arguably necessary, such a model is not cost-free; rather, it may have implications for the quality of the Court’s decision-making and its standing in the eyes of other stakeholders, such as non-governmental organizations and complainants.
Continue reading “New publication: On ‘judicial innovation’ and self-restraint in the ECtHR”