Undue political pressure is not dialogue: The draft Copenhagen Declaration and its potential repercussions on the Court’s independence

By Sarah Lambrecht, researcher, Research Group Government and Law, UAntwerp and law clerk at the Belgian Constitutional Court[1]

 The Danish Government wishes to initiate a renewed discussion on the future of the European Convention on Human Rights system­, as one of its priorities of the Danish Chairmanship of the Committee of Ministers of the Council of Europe from November 2017 till May 2018. Before issuing its draft Copenhagen Declaration on 5 February 2018, the Danish Government hosted a High-Level Expert Symposium ‘The Future of the European Court of Human Rights – Time for a Renewed Discussion?’ on 20-21 April 2017 at Copenhagen, at which I participated, and a High-Level Expert Conference ‘2019 and Beyond – Taking Stock and Moving Forward from the Interlaken Process’ on 22-24 November 2017 at Kokkedal. This process has been particularly transparent, a stark contrast from previous efforts, for which the Danish Government should be commended. Continue reading

The Draft Copenhagen Declaration – What About Civil Society?

By Antoine Buyse, professor of human rights from a multidisciplinary perspective, Utrecht University

The very existence of this critical comment series on the draft Copenhagen Declaration of the Danish chairmanship of the Council of Europe shows that the recent publication of the draft was enough to elicit a stream of responses. This possibility for open discussion is to be applauded and certainly a big improvement over the earlier discussion surrounding the Brighton Declaration of 2012, over which debate was only possible after the text was leaked. Indeed the intensity and concerns palpable in the current responses show that the contents of the draft are not warmly welcomed by everyone. Some very esteemed colleagues, with supporting reasoning, even relegate the whole draft back to the drawing board. Continue reading

The draft Copenhagen Declaration and the Court’s dual role – the need for a different definition of subsidiarity and the margin of appreciation

By Janneke Gerards, Professor of fundamental rights law, Utrecht University, the Netherlands

The double-faced role of the Court

One of the recurring topics in all High Level Declarations is the role the European Court of Human Rights (ECtHR or Court) should play in protecting the Convention rights. Article 32 of the Convention stipulates that the Court’s jurisdiction extends to ‘all matters concerning the interpretation and application of the Convention and the Protocols thereto’. The meaning of this provision has always remained somewhat ambiguous. On the one hand, the importance of the Court’s offering individual redress to victims of Convention rights violation has been stressed over and over again (not in the least in the Interlaken Declaration). On the other hand, the Convention’s Preamble discloses that the Convention was originally regarded as a first step towards the ‘collective enforcement’ of human rights. Apparently, offering general protection against human rights violations was considered an important objective, too. In line with this ambiguity, the Court accepted already in 1978 that under Article 32, its task is ‘not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention’. Continue reading

The Draft Copenhagen Declaration – Process-based review and subsidiarity

By Leonie Huijbers (PhD Candidate, Utrecht University, the Netherlands)

With the publication of the list of priorities for the Danish Chairmanship in November 2017, it became publicly clear that the Danes would push for yet another debate on the future of the Convention system. According to the Danish Chairmanship, such a debate is needed because ‘support’ for the Convention system is diminishing and the authority of the Court is (actively) questioned by European citizens and national policy-makers. Ironically, the Danes themselves were faced with a lack of support for their plans to engage in another round of reform deliberations. The Council of Europe bodies appear to be a little tired of all the reforms and have questioned the usefulness of new reforms. Indeed a 2015 CDDH-report states that the challenges faced by the Convention system requires ‘allocating additional resources and more efficient working methods rather than introducing a major reform’ (p. 10). Continue reading

The Draft Copenhagen Declaration: ‘New Ways’ to ensure a ‘Strengthened Dialogue’?

By Lize R. Glas, assistant professor of European law, Radboud University

When making public its priorities for its chairmanship on 13 November 2017, Denmark already announced that finding ‘new ways’ to ensure a ‘strengthened dialogue’ between the states parties, domestic courts and the Court would be a ‘key objective’. As could be expected therefore, the draft Copenhagen Declaration (Declaration) dedicates a special section to dialogue, entitled ‘Interplay between national and European levels – the need for dialogue and participation’. The dialogue should be mainly about ‘the general development of case law in important areas’ (para. 33, see also paras. 32, 41). Including a message about dialogue fits into a trend: whereas the first two ministerial declarations about the Court (adopted in 2010 and 2011) did not refer to dialogue, the two most recent declarations did. The Brighton Declaration (2012) encouraged ‘open dialogues’ between, among others, the Court and states parties. Comparably, the Brussels Declaration (2015) welcomed the Court’s dialogue with the highest domestic courts. Continue reading

Blog Seminar: The Draft Copenhagen Declaration – Food for Thought

By Janneke Gerards (professor of fundamental rights law, Utrecht University, the Netherlands) & Sarah Lambrecht (affiliated researcher, Research Group Government and Law, UAntwerp, Belgium and law clerk at the Belgian Constitutional Court)

It is a well-known fact that the ECHR system of fundamental rights protection is almost continually under construction. Since the major overhaul of the Court’s structure with the entry into force of Protocol No 11 in 1998, there has been a nearly constant flow of ideas for change. Perhaps, the Court should become more constitutional court-like, or rather enhance its objective of offering individual justice. Perhaps, the Court should more actively steer national interpretations of the Convention, or rather be more restrained and more respectful of national diversity. Surely, the Court should be better equipped to deal with the continuous stream of tens of thousands incoming complaints and to handle their extraordinarily diverse nature, ranging from being repetitive and legally uninteresting to posing new, challenging and complex issues. Continue reading