This Special Issue deals with the relationship between the European Convention on Human Rights (ECHR) and other parts of international law. The topic has been the subject of increasing debate, following several recent judgments by the European Court of Human Rights (ECtHR). Indeed, the Council of Europe Steering Committee for Human Rights (CDDH) report on The Longer-term Future of the System of the European Convention on Human Rights of 11 December 2015 identified the ‘place of the of the Convention mechanisms in the European and international legal order” as one of the four areas to be decisive for the effectiveness and viability of the Convention system.Footnote1
Drafts of the articles in this Special Issue were first presented at a Brainstorming seminar in Strasbourg 29-30 March 2017, to launch the work of the Drafting Group II of the Committee of experts on the system of the Convention (DH-SYSC-II) of the Council of Europe. The seminar was organized in cooperation between the PluriCourts Centre on the Legitimacy of the International Judiciary, at the University of Oslo, and the Council of Europe. DS-SYSC-II has finalized its report, which was adopted by the CDDH at its 92nd meeting (26-29 November 2019) and published as an addendum to the report from that meeting.Footnote2
The SYSC-II report discusses the methodology of interpretation by the Court and its approach to international law; State responsibility and extraterritorial application of the Convention; interaction between resolutions of the UN Security Council and the Convention; interaction between international humanitarian law and the Convention; the challenge and interaction between the Convention and other international human rights instruments; and the challenge of the interaction between the Convention and the legal order of the European Union and other regional organizations.
The report recognizes the independence of the Court in noting that ‘throughout the preparation of the report careful attention has been paid to the fact that ultimately, in any given case, it will be a matter for the Court to decide on how to meet these challenges, in the independent exercise of its judicial function’ (paragraph 2). However, this does not prevent the report from being critical in its assessment of the Court’s practice on several points.
The report supports the Court’s view that the ECHR should be interpreted according to the principles of the Vienna Convention on the Law of Treaties. Yet, a persistent issue has been the Convention’s ‘special character’ as a human rights instrument. The report acknowledges that the Court applies a dynamic (‘evolutive’) interpretation, but cautions against taking such interpretation too far, by emphasizing the ‘consensual nature of State obligations under international law’ (paragraphs 95 and 96). It notes that the Court is not always clear about the distinction between extraterritorial jurisdiction of States and the attribution of State responsibility for extraterritorial acts (paragraph 148). The report questions the Court’s wide-reaching understanding of attribution (relying on a State’s ‘decisive influence’), which goes beyond the practice both by the International Court of Justice and the International Criminal Tribunal for the Former Yugoslavia (ICTY) (paragraph 167). Furthermore, the report warns that subjecting obligations under UN Security Council resolutions to regional or national law may have negative implications for the implementation of such resolutions (paragraph 224). Overall, the report underlines that the Court’s practice should be predictable and understandable (paragraphs 96 and 191). The report notes that parallel human rights protection mechanisms may be a source of enrichment and enhancement of such protection, but may also result in inconsistencies and uncertainty of States Parties. It emphasizes that the practice of the ECtHR and the EU Court can lead to fragmentation of the international obligations and re-commends that the failed negotiations regarding EU’s accession to the Convention to be resumed.
We believe that a selection of the developed papers from the 2017 seminar will be of great interest to the readership of this Journal. The Special Issue includes three headings:
– the ECHR and general international law;
– the ECHR’s relations with other international human rights regimes; and
– the ECHR and EU accession.
The ECHR and general international law
This section starts with Geir Ulfstein’s Interpretation of the ECHR in Light of the Vienna Convention on the Law of Treaties. Ulfstein notes that the Court has, in principle, moved from a qualified to a full acceptance that the Vienna Convention’s (VCLT) principles of interpretation apply to the ECHR. These principles do not prevent effective and timely human rights protection. However, a core issue is how far the Court should go. The author argues that the Court should distinguish between evolutive interpretation based on the ECHR’s object and purpose and, on the other hand, interpretation based on VCLT Article 31(3)(b) (subsequent practice) and 31(3)(c) (other rules of international law). In the former form of interpretation, the notion of European consensus is prominent. However, the Court should clarify its use of such consensus and restrict its apparently unfettered discretion in using international legal instruments for this purpose. The Court has granted extensive discretion to EU member States in their implementation of EU obligations through the so-called Bosphorus doctrine. However, the Court may in the future apply stricter scrutiny to the EU’s reliance on its ‘mutual trust’ principle, whereby EU States should respect decisions in other member States without further examinations. Finally, there is some uncertainty in the Court’s approach to review of implementation of the formally superior Security Council resolutions.
James Crawford and Amelia Keene discuss, in Interpretation of the human rights treaties by the International Court of Justice, the role of the International Court of Justice (ICJ) in interpreting human rights treaties. The authors note the importance of the jurisdictional limits of the Court on human rights questions and why States hesitate to bring such cases before the Court. Second, they analyze the ICJ’s interpretive techniques, based also on cases concerning general treaty interpretation, in order to examine whether the Court has adopted an interpretive methodology comparable to some of the techniques of the ECtHR. They address purposive interpretation, evolutive interpretation, principles of effectiveness, extraterritoriality and positive obligations. The authors conclude that there are striking parallels between the interpretive techniques applied by the ECtHR and the ICJ. They also consider the important role that the ICJ can play in adjudicating on the relations between human rights and other issues of international law, including diplomatic protection, State immunities and international humanitarian law.
In their article Evasion of the international law of state responsibility? The ECtHR’s jurisprudence on positive and preventive obligations under Article 3 Helen Keller and Reto Walther discuss the criticism that the Court unduly evades the general law on State responsibility by applying an expansive positive obligations doctrine. They submit that the Court’s propensity to focus on preventive obligations is justified in substance, since it is difficult to imagine how human rights could be effectively protected without such positive obligations in a world where different States and private actors mingle. In this sense, the Court’s jurisprudence makes valuable contributions to the adaptation of the international legal system to changing societies. Criticism should focus less on the Court’s inclination toward positive obligations than on its pertinent methodology, which is at times less than convincing.
The ECHR’ relations with other international human rights regimes
In this section Vibeke Blaker Strand contributes with Interpreting the ECHR in its normative environment: interaction between the ECHR, the UN convention on the elimination of all forms of discrimination against women and the UN convention on the rights of the child. She draws attention to how integrative interpretation – a methodology where the ECtHR integrates its normative environment into the interpretation of the ECHR – may offer an important path to bridging many of the challenges caused by fragmentation in the field of human rights. More specifically, the article offers insight into a selection of ECHR cases that are characterized by the existence of normative overlap between the ECHR, the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the UN Convention on the Rights of the Child (CRC). This overlap is taken into account in the interpretation carried out by the Court. The interaction is discussed through two topics: the issue of State obligations in relation to domestic violence, and the issue of State obligations in relation to expulsion of immigrants with children. The author demonstrates that systemic integration may result in a strengthening of the protection of human rights under the ECHR through what she calls ‘interpretive widening and thickening’.
The ECHR and EU accession
In this final section Tonje Meinich in EU accession to the European Convention on Human Rights – challenges in the negotiations goes through the main challenges encountered in the negotiations between the EU and the member states of the Council of Europe on the EU accession to the ECHR. Meinich was chairperson of the committee named “47+1” (representing all Council of Europe States and the EU Commission) that negotiated the terms for EU accession to the ECHR. She particularly comments on the discussions concerning, first, the co-respondent mechanism on participation of relevant EU member States and/or the EU as appropriate and, secondly, the inclusion of EU Common Foreign and Security Policy (CFSP), where the EU Court has limited jurisdiction. As is well known, the CJEU in its opinion 2/13 found the draft Agreement incompatible with the EU treaties on a number of points. She concludes that resumed negotiations will be challenging, but that ‘where there is a will, there is a way’.
Martin Kuijer in The challenging relationship between the European Convention on Human Rights and the EU legal order: consequences of a delayed accession holds that the consequences of a prolonged non-accession of the EU to the ECHR may very well affect the longer-term effectiveness and viability of the ECHR. Kuijer gives a succinct analysis of the institutional link between the ECHR system and the EU legal order, and of the more recent interaction between the two systems, arguing that they were on what seemed to be a collision course until recently. The author stresses the continued need for an institutionalised arrangement between the two regional courts working in the same geographic area interpreting similar human rights standards.
Note by the Editors
The EU stated in a letter of 31 October 2019 that it was willing to resume the negotiations on its accession to the ECHR. The Council of Europe accepted the offer and negotiations were to commence during the spring 2020. Due to the COVID-19 situation the start of the negotiations was postponed to September-October 2020.Footnote3
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Notes
1 The Longer-Term Future of the System of the European Convention on Human Rights. Report of the Steering Committee for Human Rights (CDDH) adopted on 11 December 2015 (https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016806585d8).
2 Contribution of the CDDH to the evaluation provided for by the Interlaken Declaration adopted by the CDDH at its 92nd meeting (26–29 November 2019) (https://rm.coe.int/steering-committee-for-human-rights-cddh-cddh-report-on-the-place-of-t/1680994279).