Экзамен зачет учебный год 2023 / [Andreas_Fllesdal,_Birgit_Peters,_Geir_Ulfstein]-1

Commission’,34 reports of the European Commission Against Racism,35 the European Social Charter,36 the European Union (EU) Charter of Fundamental Rights,37 the European Convention on State Immunity,38 the Oviedo Convention on Human Rights and Biomedicine,39 the Aarhus Convention on Access to Information,40 and Conventions of the International Labour Organization (ILO).41 Some of these materials are not legally binding and some of the legally binding materials were not ratified by many contracting states, sometimes including the respondent state in question. Let us look more closely at some of these cases.

In the Grand Chamber judgment of Demir and Baykara v. Turkey, the Court found a violation of article 11 ECHR (freedom of association). The authorities of the respondent state refused to recognise the legal personality of a trade union formed by municipal civil servants, and annulled the collective agreement into which the trade union had entered. The Grand Chamber found a violation of article 11 ECHR on both these points. In its reasoning, the Court noted that it ‘has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms therein’ and that ‘in defin- ing the meaning of terms and notions in the text of the Convention, it can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values’ (emphasis added).42 Citing Marckx in support, the Court said that:

34ECtHR, Russian Conservative Party of Entrepreneurs and Others v. Russia (Appl. Nos. 55066 and 55638/00), Judgment (First Section), 11 January 2007, not reported.

35ECtHR, Bekos and Koutropoulos v. Greece (Appl. No. 15250/02), Judgment (Fourth Section), 13 December 2005, not reported.

36ECtHR, Sorensen and Rasmussen v. Denmark (Appl. Nos. 52562 and 52620/99), Judgment (Grand Chamber), 11 January 2006, Reports 2006-I.

37ECtHR, Christine Goodwin v. United Kingdom (Appl. No. 28957/95), Judgment (Grand Chamber), 11 July 2002, Reports 2002-VI.

38ECtHR, Al-Adsani v. United Kingdom (Appl. No. 35763/97), Judgment (Grand Chamber), 21 November 2001, Reports 2001-XI.

39ECtHR, Glass v. United Kingdom (Appl. No. 61827/00), Judgment (Fourth Section), 9 March 2004, Reports 2004-II.

40ECtHR, Taskin and Others v. Turkey (Appl. No. 46117/99), Judgment (Third Section), 10 November 2004, Reports 2004-X.

41ECtHR, Siliadin v. France (Appl. No. 73316/01), Judgment (Second Section), 26 July 2005, Reports 2005-VII; ECtHR, Demir and Baykara v. Turkey (Appl. No. 34503/97), Judgment (Grand Chamber), 12 November 2008, Reports 2008.

42See the extensive analysis by the Court in ECtHR, Demir and Baykara v. Turkey, ibid., paras. 69–86.

[I]t is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies.

This was followed by a reference to the living instrument approach, whose purpose the new Court now qualifies as follows: it is to ‘reflect the increasingly high standard being required in the area of the protection of human rights, thus necessitating greater firmness in assessing breaches of the fundamental values of democratic societies’.43

In another landmark judgment, Rantsev v. Cyprus and Russia,44 the Court had to decide whether human trafficking falls within the scope of article 4 ECHR, which prohibits ‘slavery’, ‘servitude’ and ‘forced or compulsory labour’. After looking at a number of international materials on human trafficking, the Court reasoned as follows in a passage worth quoting in its entirety:

[T]he absence of an express reference to trafficking in the Convention is unsurprising. The Convention was inspired by the Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations in 1948, which itself made no express mention of trafficking. In its Article 4, the Declaration prohibited ‘slavery and the slave trade in all their forms’. However, in assessing the scope of Article 4 of the Convention, sight should not be lost of the Convention’s special features or of the fact that it is a living instrument which must be interpreted in the light of present-day conditions. The increasingly high standards required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably require greater firmness in assessing breaches of the fundamental values of democratic societies. There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention. In view of its obligation to interpret the Convention in light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes ‘slavery’, ‘servitude’ or ‘forced and compulsory labour’. Instead, the Court concludes that trafficking itself,

43Ibid., para. 146.

44ECtHR, Rantsev v. Cyprus and Russia (Appl. No. 25965/04), Judgment (First Section), 7 January 2010, Reports 2010.

within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention.45

Goodwin, Demir and Bakara and Rantsev exemplify the new Court’s reliance on evolving trends and emerging consensus in international law (‘present-day conditions’) as a justificatory basis for finding a practice (or policy) to be in breach of the Convention. Since the Court does not consider in these cases whether the emerging practice is followed by all or most contracting states, we may infer that, on the new Court’s approach, this consideration is irrelevant. Meanwhile, the Court shows clear willingness to restrict the margin of appreciation that states enjoy because of lack of consensus, alongside citing the idea that the Convention is a living instrument. The cases of EB v. France and Hirst v. United Kingdom are important to mention here.

In EB, the applicant was a lesbian who had been refused authorisation to adopt by the French authorities, partly on the ground that there was no paternal referent in her household. The Court held that in the circumstances of the case, this ground was used as a pretext, and that it was the applicant’s homosexuality that served, implicitly, as a decisive factor for refusing her authorisation to adopt. It concluded she had suffered a difference in treatment on the basis of her sexual orientation and moved on to examine whether the difference in treatment had an objective and reasonable justification. In the earlier case of Fretté,46 the Court had allowed France a wide margin of appreciation on the basis that there was no common ground in Europe.47 But in EB the Court held that ‘where sexual orientation is in issue, there is a need for particularly convincing and weighty reasons to justify a difference in treatment regarding rights falling within Article 8’.48 In its reasoning, the Grand Chamber made no reference to the margin of appreciation and to

45Ibid., paras. 272–82.

46ECtHR, Fretté v. France (Appl. No. 36515/97), Judgment (Third Section), 26 February 2002, Reports 2002-I.

47‘Since the delicate issues raised in the case, therefore, touch on areas where there is little common ground amongst the member States of the Council of Europe and, generally speaking, the law appears to be in a transitional stage, a wide margin of appreciation must be left to the authorities of each State’, Fretté v. France, ibid., para. 41.

48ECtHR, EB v. France (Appl. No. 43546/02), Judgment (Grand Chamber), 22 January 2008, not reported, para. 91. For a more extensive discussion of the differences between EB and Fretté, see G. Letsas, ‘No Human Right to Adopt?’, UCL Human Rights Review 1:1 (2008) 134–53.

whether there is consensus within contracting states in making adoption available to single homosexuals. It paid no attention to the argument put forward by the French government that the division of the scientific community, the contracting states and public opinion over homosexual adoption should weigh against the ruling of a violation. Instead, the Court based its judgment on the principle that the burden should be on the respondent state to provide particularly weighty reasons that call for differential treatment when sexual orientation is in issue. Given that no such reasons were put forward, the Court found a violation of article 14 ECHR (non-discrimination) in conjunction with article 8 ECHR, reiterating that the Convention is a living instrument.

In Hirst v. United Kingdom,49 the Court, sitting as a Grand Chamber, held that the UK’s blanket restriction on the right of convicted prisoners to vote is disproportionate and in breach of the Convention. Noting that the UK is not alone among Convention countries in depriving all convicted prisoners of the right to vote, it nevertheless remarked: ‘Even if no common European approach to the problem can be discerned, this cannot in itself be determinative of the issue.’50

This is not to say, however, that there are no cases in which the new Court would assign significant weight to the absence of common ground amongst contracting states. Apart from the earlier cases of Fretté (2002) and Murphy v. Ireland (2004), the Court has also done so in more recent cases, usually where the applicant is challenging the public morals prevailing within the respondent state. So, for example, in the case of Schalk and Kopf v. Austria, the Court had to decide whether the prohibition of same-sex marriage and the absence of an alternative means of legal recognition of same-sex relationships violated article 8 ECHR in conjunction with article 14 ECHR. It concluded that there was no violation, citing in support the fact that there was at the time no consensus amongst contracting states providing legal recognition of same-sex partnerships. And in the case of Lautsi v. Italy, the Grand Chamber found that the obligatory display of crucifixes in public classrooms is not in breach of the Convention, holding that the absence of a European consensus counts in favour of granting the respondent state a margin of appreciation.51

49ECtHR, Hirst v. United Kingdom (Appl. No. 74025/01), Judgment (Grand Chamber), 6 October 2005, Reports 2005-IX.

50Ibid., para. 81.

51‘The Court concludes in the present case that the decision whether crucifixes should be present in State-school classrooms is, in principle, a matter falling within the margin of

Still, these cases must be seen as outliers for at least two reasons; first, because they are still outnumbered by cases such as Goodwin, Demir and Bakara, EB, Rantsev, Hirst and many others. And second, because reliance on the absence of consensus as the basis for granting a margin of appreciation is now treated by the Court itself as an exception, not the norm. This is evidenced by the fact that it is met with vocal opposition by many of the Court’s judges. So, for example, in the case of Schalk and Kopf v. Austria, three judges (Spielmann, Jebens and Rozakis) dissented not only on the weight that the Grand Chamber had assigned to the absence of common ground amongst contracting states, but also on its very relevance. Here is what they argued:

Having identified a ‘relevantly similar situation’, and emphasized that ‘differences based on sexual orientation require particularly serious reasons by way of justification’, the Court should have found a violation of Article 14 taken in conjunction with Article 8 of the Convention because the respondent Government did not advance any argument to justify the difference of treatment, relying in this connection mainly on their margin of appreciation. However, in the absence of any cogent reasons offered by the respondent Government to justify the difference of treatment, there should be no room to apply the margin of appreciation. Consequently, the ‘existence or nonexistence of common ground between the laws of the Contracting States’ is irrelevant as such considerations are only a subordinate basis for the application of the concept of the margin of appreciation.

Moreover, the Court’s former Vice-President, Christos Rozakis, would often complain about its reference to the margin of appreciation, even though it had found a violation.52

In sum, the new Court has moved away from placing decisive weight on the absence of consensus amongst contracting states and from

appreciation of the respondent State. Moreover, the fact that there is no European consensus on the question of the presence of religious symbols in State schools speaks in favor of that approach,’ ECtHR, Lautsi and Others v. Italy (Appl. No. 30814/06), Judgment (Grand Chamber), 18 March 2011, not reported, para. 70.

52See the Concurring Opinions of Judge Rozakis in ECtHR, Odièvre v. France (Appl. No. 42326/98), Judgment (Grand Chamber), 13 February 2003, Reports 2003-III, and ECtHR, Egeland and Hanseid v. Norway (Appl. No. 34438/04), Judgment (First Section), 16 April 2009, not reported. I analyse the contribution of Rozakis’s Separate Opinions to the Court’s jurisprudence in G. Letsas, ‘Judge Rozakis’s Separate Opinions and the Strasbourg Dilemma’, in Dean Spielmann, Marialena Tsirli and Panayotis Voyatzis (eds.), The European Convention on Human Rights: A Living Instrument, Essays in Honour of Christos L. Rozakis (Brussels: Bruylant, 2011) 305–27.

treating it as the ultimate limit on how far it can evolve the meaning and scope of Convention rights. The new Court treats the ECHR as a living instrument by looking for common values and emerging consensus in international law. In doing so, it often raises the human rights standard above what most contracting states currently offer. It reasons mainly by focusing on the substance of the case and by placing the burden on the respondent states to provide weighty reasons for interfering with core aspects of Convention rights. If no weighty reasons are provided, the new Court will not normally grant the respondent state a margin of appreciation, even in the absence of consensus amongst contracting states on the question. As the Court said in several cases (Goodwin, Rantsev), the lack of consensus in the Council of Europe is hardly surprising, and it is not determinative of the issue before the Court (Hirst). Whether it will maintain this approach in the face of vocal criticism by several contracting states remains to be seen.

4. The moral reading of the Convention and the problem of legitimacy

What are we to make of the new Court’s use of the living instrument approach? Can this use be justified?

The first thing to note is that it coheres with the Court’s general approach to legal interpretation, which in a previous work I have called Strasbourg’s interpretive ethic.53 This ethic is based on rejecting textualism and intentionalism as methods of interpretation of the Convention. I have already mentioned the Court’s doctrine of autonomous concepts, which detaches the meaning of several Convention concepts from the way they are construed within the respondent state. In addition, the Court has read into the Convention rights that are not explicitly mentioned in the text, such as the right of access to court.54 Finally, the Court has recognised not only rights the drafters could not have intended to protect, such as the right to vote in EU elections,55 but also rights that they had intended not to protect, such as the right not to join a trade

53See G. Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’,

European Journal of International Law 21 (2010) 1–33.

54ECtHR, Golder v. United Kingdom (Appl. No. 4451/70), Judgment (Plenary), 21 February 1975, Series A, No. 18.

55ECtHR, Matthews v. United Kingdom (Appl. No. 24833/94), Judgment (Grand Chamber), 18 February 1999, Reports 1999-I.

union.56 In other words, the Court’s interpretive ethic has been both antitextualist and anti-originalist. In fact, one can trace the various stages in the Court’s reasoning as the gradual severing of interpretive links with the beliefs of the following groups: the drafters (Golder, Young, James and Webster), the respondent state’s legal authorities and their classifications (Engel), the respondent state’s public opinion (Marckx, Dudgeon) and finally, the authorities and public opinion of the majority of contracting states (Hirst, Goodwin).

Is the severing of these interpretive links justified? In a book first published in 2007,57 I argued that this severing is fully justified because it is required by the moral foundations of human rights: if human rights are distinctively counter-majoritarian, then it makes no sense conditioning their scope and meaning on what the majority itself believes. For example, if the interpretation of the rights of groups such as children born out of wedlock (Marckx), homosexuals (Dudgeon, Frette, EB, Schalk and Kopf ), juveniles (Tyrer, Handyside), prisoners (Hirst, Rohde v. Denmark58), transsexuals (Rees, Sheffield and Horsham, Goodwin), foreigners (Saadi v. United Kingdom,59 Siliadin v. France60), religious minorities (Kokkinakis v. Greece61) and many others were made dependent on majoritarian preferences, then these groups would be denied equal protection under the Convention. This is because majoritarian preferences are typically biased against these groups, who are fewer in numbers and cannot bring about a change in domestic law through legislative process. Hence, if the role of the Court is to shield the interests of these groups from majoritarian preferences, then it should not distinguish between the majoritarian preferences prevailing in the respondent state and the majoritarian preferences of the entire Council of Europe. For example, lack of consensus amongst contracting states on whether same-sex

56ECtHR, Young, James and Webster v. United Kingdom (Appl. Nos. 7601/76 and 7806/77), Judgment (Chamber), 13 August 1981, Series A, No. 55.

57G. Letsas, A Theory of Interpretation of the European Convention on Human Rights, 1st edn. (Oxford University Press, 2007), 2nd edn with new Preface and Foreword by Judge Spielmann in 2009 (hereinafter Letsas, A Theory of Interpretation).

58ECtHR, Rohde v. Denmark (Appl. No. 69332/01), Judgment (First Section), 21 July 2005, not reported.

59ECtHR, Saadi v. United Kingdom (Appl. No. 13229/03), Judgment (Grand Chamber), 29 January 2008, Reports 2008.

60Siliadin v. France.

61ECtHR, Kokkinakis v. Greece (Appl. No. 14307/88), Judgment (Chamber), 25 May 1993, Series A, No. 260-A.

partnerships should be recognised by law should be as irrelevant as a prejudiced moral climate towards homosexuals in the respondent state.

So borrowing Dworkin’s label about the US Constitution,62 I argued that the Court should engage in the ‘moral reading’ of the ECHR rights, ignoring consensus and blocking majoritarian preferences from having an effect on fundamental interests of individuals. And I defended the moral reading of the ECHR against the charge of judicial activism, on the ground that it remains within the remit of the Court’s legal function: contracting states have given the Court jurisdiction to protect whatever human rights people in fact have, and not what human rights domestic authorities or public opinion think people have.63 Contracting states cannot have their cake and eat it: set up a supranational institution to protect people’s real human rights, but expect the institution to condone violations when it is convenient for them. Not only is the moral reading within the legal limits of the Court’s jurisdiction; it is essential if the Court is to perform its legal function of protecting individual human rights in the Council of Europe.

At the time when I was writing A Theory of Interpretation, the Court’s case law was still equivocating between the Marckx test, which paid lipservice to the idea of consensus, and the Sheffield and Horsham test, which required uniform or shared practice amongst contracting states. My concern at the time was to highlight the normative inconsistency between the Court’s doctrines on autonomous concepts and living instrument on one hand and its heavy reliance on consensus in cases like Murphy and Fretté on the other. After the book was published, the Court moved further away from consensus and towards the abstract idea of ‘common values’ in international law. It is now less deferential, showing willingness (and confidence) to scrutinise state interference with fundamental individual rights. It shifts the onus on the respondent state to show that weighty reasons necessitated the interference and downplays the significance, or even relevance, of the lack of shared practice amongst contracting states. It recognises rights under the ECHR that would have been unimaginable thirty or forty years ago, such as in relation to trafficking (Rantsev), domestic workers (Siliadin), prisoners’ voting (Hirst), gay adoption (EB) and many others. Despite the occasional outliers (Lautsi, Schalk and Kopf v. Austria) the new Court has embraced

62R. Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Oxford University Press, 1996).

63Letsas, A Theory of Interpretation, chapters 2 and 3.

the moral reading of the Convention rights.64 And understood as the moral reading of the Convention, evolutive interpretation simply denotes a process of moral discovery: the Court is not expanding or inflating the scope of the ECHR rights by treating the Convention as a living instrument; rather, it discovers what these human rights always meant to protect.

Yet the Court’s interpretive ethic is not uncontroversial. In recent years, a number of old contracting states have reacted vocally against the Court’s adverse rulings65 and against the retreat of the use of the margin of appreciation. Meanwhile, the issue of the legitimacy of the Court and the role of consensus in its case law has become a lively topic.66 Even if the morality of human rights requires a counter-majoritarian reading of the Convention, as I argue, does the Court possess the legitimacy to impose its own view about what human rights require upon most or all contracting states? Does the moral reading of the Convention exceed the boundaries of the Court’s legitimacy? After all, the Court is an international, not a constitutional court, and its effect is ultimately dependent on state consent. If evolutive interpretation is controversial at domestic level, then it is even more controversial at international level. The next section looks into the question of the Court’s legitimacy, both in general and in relation to evolutive interpretation.

5. The legitimacy of the moral reading of the Convention: a defence

The idea that the role of judges is to interpret bills of rights in the light of changing circumstances raises concerns about the legitimacy of them doing so. This is particularly the case if evolutive interpretation is to be understood as the moral reading of rights. For even if we grant that the best moral understanding of rights evolves over time, we still have to

64I do not, of course, mean to imply that the self-perception of individual judges of the Court is that of the moral philosopher who seeks to discover the moral foundations of human rights. When I say that the Court has embraced the moral reading of the Convention, I mean that its decisions do not, as a matter of outcome, condition the existence of the applicant’s human right on a majoritarian understanding of what that right is.

65For instance, the UK with respect to Hirst, and Italy with respect to the Chamber Judgment in Lautsi.

66See, e.g., K. Dzehtsiarou, ‘Does Consensus Matter? Legitimacy of European Consensus in the Case Law of the European Court of Human Rights’, Public Law (2011) 534–53.

explain why it is the judicial branch, as opposed to other institutions or branches of government, that gets to decide on what that better understanding is. The question of legitimacy raises an additional concern at the international level, because international courts are not part of a single constitutional order and they exercise supervision over a large number of states, with diverse legal and political structures. How can we justify the legitimacy of international courts, like the ECtHR, to evolve the meaning of legally binding obligations of sovereign states according to what a few judges think is morally best? Concerns about Strasbourg’s legitimacy have risen sharply in the last few years, particularly amongst the old contracting states, following the handing down of a number of controversial judgments. This is understandable, because the more prominent the role of an institution, the more it is called to justify it. Yet it is not always clear what it means to question whether an international human rights court has legitimacy.

In the remainder of this chapter, I shall argue that evolutive interpretation, understood as the moral reading of the Convention, does not threaten the legitimacy of the Court. In fact, I will advance a stronger thesis, namely, that the moral reading of the Convention is essential to the Court’s overall legitimacy, and its only possible ground. In order to do so, I shall have to look at the broader issue of the Court’s legitimacy and to show why alternative ways of grounding its legitimacy fail.

I shall begin by distinguishing two different ways in which Strasbourg can be said to possess legitimate authority over contracting states. The first one relates to whether following Strasbourg’s judgments can help contracting states better to comply with their human rights obligations than if they were to rely on their own judgment. Call this authority-based legitimacy. The second one relates to whether contracting states have an obligation to follow Strasbourg’s judgments based on the treaty-based commitment they have undertaken by joining the ECHR. Call this commitment-based legitimacy. I shall argue that Strasbourg is unlikely to have authority-based legitimacy for all contracting states and that interpreting the Convention according to the morally best reading is unlikely to be an effective way of acquiring authority-based legitimacy. Commitment-based arguments, by contrast, are more likely to succeed in showing that Strasbourg’s judgments are authoritative on all contracting states. And evolutive interpretation, understood as the moral reading of the Convention rights, is essential to commitment-based legitimacy. Or so I will argue.