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

conformity of these measures with the requirements of the convention.’64 The margin of appreciation doctrine represents subsidiarity considerations at the substantive rights level.

Yet, the shape and prerequisites of subsidiarity beyond this more descriptive character of deference to the national level are more unclear. Some authors hold that the proportionality test could be added as a second test to the principle of subsidiarity. Kumm argues that proportionality could function as ‘a “cost-benefit analysis” which focused on the advantages and disadvantages for ratcheting up the level of decisionmaking’.65 Such responses may solve collective action problems that involve both the national and the international level.66 There are diverse opinions on where the primary authority to review human rights violations should be located, i.e. at the supranational, or the ECHR level.67 Some scholars point to the dysfunctional judiciary of some of the member states of the Council of Europe and conclude that subsidiarity cannot provide a solution for the relationship of the ECtHR with those states.68 Others hold that the ECtHR should only be involved if there are good reasons to depart from the interpretation at the national level.69

2.3 Effectiveness

The principle of effectiveness is part and parcel of all human rights conventions. It is enshrined in several provisions of the ECHR, and is part of the international treaty and customary law concerning the application, interpretation and implementation of international treaties. Together with the principle of subsidiarity, it has been crucial in the

64ECtHR, Case relating to certain aspects of the laws on the use of languages in education in Belgium (Belgian Linguistic case) (Appl. Nos. 1474, 1677 and 1691/62; 1769 and 1994/63; and 2163/64), Judgment (Plenary), 23 July 1968, Series A, Vol. 6, para. 10.

65M. Kumm, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’, European Journal of International Law 15 (2004) 907–31, at 921 (hereinafter Kumm, ‘The Legitimacy of International Law’).

66Ibid.

67G. Ulfstein, ‘International Constitutionalization: A Research Agenda’, Guest Editorial,

ESIL Newsletter (2010) 2; G. Ulfstein, ‘The International Judiciary’, in J. Klabbers, G. Ulfstein and A. Peters (eds.), The Constitutionalization of International Law (Oxford University Press, 2009) 126–52 (hereinafter Ulfstein, ‘The International Judiciary’), at 144; Keller, Fischer and Kühne, ‘Debating the Future’.

68Ibid., at 1032.

69Ulfstein, ‘The International Judiciary’, at 144; Kumm, ‘The Legitimacy of International Law’, at 921.

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debate on institutional reform of the Court. Several provisions of the ECHR provide for an effective implementation of the rights of the Convention. Above all, the preamble calls for an ‘effective recognition and observance of the rights therein declared’ and establishes that the Convention rights are best preserved by ‘an effective political democracy’. It must be read together with the general provision of article 1 ECHR, which commends: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’70 Also, article 13 demands the provision of an ‘effective remedy’ to those whose rights have been violated, and article 34 calls for an effective implementation of the right of individual complainants to launch complaints before the Court.

Several other provisions of the general international law on treaties also encompass the general provision of effective treaty implementation. One crucial international treaty provision with the status of customary international law, the Vienna Convention on the Law of Treaties (VCLT), in its article 31, provides for an interpretation in good faith of international treaty provisions. Effectiveness is both inherent in this notion as well as in the notion to interpret treaties following their object and purpose, according to article 31(1).71 In their recent discussion of a case concerning reservations under the Optional Protocol, members of the Human Rights Committee held that the provisions of the International Covenant on Civil and Political Rights (ICCPR), as well as of the Optional Protocol, must be interpreted to render utmost effect of the individual rights concerned.72

Concerning the current reform of the ECtHR, considerations of effectiveness apply both to the proper functioning of the Court and its Registry, and to the realisation of the rights of the Convention for the individuals affected. However, whether the general effectiveness of the system or individual protection should take precedence may have to be decided case-by-case and often requires careful balancing of all interests

70Convention as amended by its Protocol No. 14 (CETS No. 194) as from the date of its entry into force on 1 June 2010.

71R. Gardiner, Treaty Interpretation (Oxford University Press, 2008), at 160.

72Human Rights Commission, Elgueta v. Chile, Communication No. 1536/2006, 7 September 2009, UN Doc. CCPR/C/96/D/1593/2006, Individual Opinion of Ms. Helen Keller and Mr. Fabián Salvioli, para. 11; compare F. Salvioli, ‘Un Analisis desde el Principio pro Persona Sobre el Valor Juridico de las Decisiones de la Comision Interamericana de Derechos Humanos’, En Defensa de la Constitución: Libro Homenaje a Germán Bidart Campos (Buenos Aires: Ediar, 2003) 143–55, 143.

involved. Particular reforms may be at the expense of the individual seeking remedies for serious human rights violations. In particular, minor claims may seriously block the workability of the Court.73

2.4. Proportionality

Closely connected to the principle of effectiveness is the principle of proportionality. One of the first provisions which contained a rough notion of proportionality is article 74 of the Prussian General Law (Preussisches Allgemeines Landrecht) of 1794, which allowed the police to take the ‘necessary measures’, thereby focusing on necessity of the measures involved.74 Considerations of proportionality measure the intensity of limitations to individual human rights, and assess the tradeoff between the interests of the state involved and the individual. Concerning the judicial review of constitutional rights, the German Constitutional Court cultivated and promoted proportionality analysis in an analytical direction, to achieve a reasoned balance between con- flicting interests involved.75 Other national courts also base their analysis of lawful limitations of constitutional rights on a proportionality analysis.76 The CJEU employs the principle in its assessment of restrictions to the EU Fundamental Freedoms.77 As of today, proportionality analysis has found its way into many national legal systems, including hybrid and common law based, as well as into the case law of the ECtHR. The Court applies the principle regularly, in particular when assessing the

73Keller, Fischer and Kühne, ‘Debating the Future’.

74‘The office of the police is to take the necessary measures for the maintenance of public peace, security and order’ (translation in A. Stone Sweet, ‘Proportionality Balancing and Global Constitutionalism’, Columbia Journal of Transnational Law 47 (2008) 68–149, at

100)(hereinafter Stone Sweet, ‘Proportionality Balancing’). Compare Wieacker, ‘Geschichtliche’, 867–81.

75BVerfG Apothekenurteil, BVerfGE 7, 377 at 405; BVerfG Lüth, BVerfGE 7, 198, at 212; Stone Sweet, ‘Proportionality Balancing’, 104 et seq.

76Stone Sweet pointed, amongst others, to the Canadian, Israeli and New Zealand use of proportionality analysis. Stone Sweet, ‘Proportionality Balancing’, at 113–38.

77According to Stone Sweet, ibid., at 139, starting with ECJ Case 11/70, Internationale Handesgesellschaft mbH v. Einfuhr und Vorratstelle für Getreide und Futtermittel, Judgment, 17 December 1970, [1970] ECR 1125, 1146. Others argue that ECJ Case 265/87, Schrader v. Hauptzollamt Gronau, Judgment, 11 July 1989, [1989] ECR 2237, 2269, was the first judgment where the Court referred to proportionality. For the employment of the principle with regard to the fundamental freedoms, see ECJ Case 120/78, Cassis de Dijon Rewe Zentral AG v. Bundesmonopolverwaltung für Branntwein, Judgment, 20 February 1979, [1979] ECR 649, 662.

expert reports – i.e. the Woolf Report and the 2007 Wise Persons Report, which were adopted before Protocol 14 came into force – as well as the changes suggested at the state party meetings at Interlaken, Izmir and Brighton, touching upon, amongst others, the admissibility criteria, admissibility decisions taken by the single judge procedure, possible filtering mechanisms, the need for more reasoned non-admissibility decisions, and the Court's priority policy and increased use of oral hearings. Amongst further procedural aspects, like the introduction of court fees, the newly suggested advisory opinion system, as well as the newly introduced and already modified article 35(3)(b), are also addressed. Iain Cameron discusses those proposals in light of the ongoing debate about the Court as a court of individual justice or constitutional court.

3.1.2 The margin of appreciation

Yutaka Arai-Takahashi's chapter addresses the margin of appreciation doctrine as a central element whereby the Court allows discretion to member states. The chapter explores central issues concerning this doctrine, namely (1) the balance between ensuring effective implementation of international obligations and the need to protect national autonomy,

(2) whether the Court should differentiate between different areas of substantive human rights law when applying the margin of appreciation and (3) the need to ensure a consistent application of the ECHR, and of the margin of appreciation doctrine itself.

3.1.3 Dynamic interpretation

The Court applies an evolutive (dynamic) interpretation: the Convention is regarded as a ‘living instrument’. George Letsas' chapter addresses how the Court balances the need for developing the standards of the Convention, e.g. by comparative analysis of member states' law and practice, while respecting the limits of the Convention's human rights protection, as well as the interests of member states. The chapter also addresses the role of consent in the dynamic interpretation of the ECHR. The Court has often based dynamic interpretations of the Convention on the change of social, factual or legal circumstances within the member states. Accordingly, the ECtHR frequently referred to the consensus of the member states, which supported the respective change in interpretation of the provisions of the Convention. George Letsas frames his considerations about the dynamic interpretation doctrine of the Court along the lines of the debates which have unfolded around the Court's legitimacy.

particular on the interplay of the three organs of the Council of Europe when dealing with those issues, i.e. the Committee of Ministers, the Parliamentary Assembly and the Court. The quality of the judges is fundamental to the credibility and legitimacy of the Court. The Parliamentary Assembly plays a pivotal role in their election. The Committee of Ministers is the organ of the Council of Europe in charge of supervision of the execution of the Court's judgments. Building on considerations of adequacy and effectiveness of the relations of the three organs, the Court, the Parliamentary Assembly and the Committee of Ministers, Elisabeth Lambert-Abdelgawad assesses whether the current distribution of tasks among them needs further adjustment, against the backdrop of the reform suggestions made at Interlaken, Brighton and further institutional reform proposals. The chapter also discusses the pros and cons of greater financial autonomy of the Court, and contemplates to what extent the Court should be influenced by policy guidelines adopted by the Council of Europe.

3.2.2 The Court and the EU

Leonard Besselink's chapter on the relationship between the EU and the ECtHR recapitulates this relationship in light of the commitment of the EU to accede to the ECHR, as provided for in the new Protocol 14 to the ECHR, and envisaged in TEU article 6(2). It focuses on the benefits and disadvantages of such an accession by looking at the current process, which is still underway. The ECtHR has accommodated the relationship between member states implementing EU law and the Court in its Bosphorus approach. It has been argued that the EU's ratification of the ECHR will not ease problems between the CJEU and the ECtHR. Leonard Besselink discusses aspects, such as which court can and will be the final arbiter of human rights in Europe, and delineates how the present relationship of the ECtHR and the CJEU is regulated. He ponders whether principles like subsidiarity or the ECtHR's characterisation as a constitutional court can guide a sensible development of the ECtHR, the EU institutions and the CJEU. In the light of the foregoing, Leonard Besselink assesses the possible future role of the Bosphorus doctrine, the procedural aspects of the EU becoming a direct respondent to proceedings before the Court, as well as possible scenarios of what could be the outcome of the recent accession negotiations. He concludes with a perspective on whether the accession of the EU to the ECHR is ultimately beneficial for the system of European human rights protection.

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3.3The Court and the UN

3.3.1 Attribution of responsibility/the substantive law aspects

Christian Tomuschat's chapter on the attribution and substantive law aspects of the relationship of the Court with the UN touches upon questions which, at the time of the negotiation of the Treaty of London, were neither acute nor obvious to the negotiating states. It was the common perception that international organisations would be immune from jurisdiction of national and international courts. The responsibility of such organisations for individual human rights violations is, however, becoming more urgent. With the end of the Cold War, the UN has taken on new responsibilities: the Security Council has mandated regional organisations and member states to use military force under Chapter VII of the Charter, and the UN has taken on territorial administration of post-conflict states, or ‘failed’ states. Drawing upon pronouncements of the ECtHR on this controversial issue, like the Behrami and Saramati case, the chapter discusses the responsibility of the UN for human rights violations, and questions of attribution of responsibilities between the UN and Council of Europe member states, both in regard to military operations and territorial administration.

3.4Conclusion

In the final chapter of the book, the editors reflect on the different contributions and on the implications of the suggestions made for the future of the Court in Europe and in the world at large. The chapter focuses on some key elements which various chapters have brought to bear on the multilevel human rights protection system: effectiveness, consistency, transparency and subsidiarity. The chapter explores whether these elements are able and suitable to bring forward further discussions on the reform of the Court. It also contemplates whether there are further elements which should govern the multi-level human rights protection systems in Europe, in particular.

amendment of the Convention. The latest series of discussions of the states parties on reform were at conferences in Interlaken,4 Izmir5 and Brighton.6

The procedural reforms which have been made are, not surprisingly, reactions to crises, or anticipated crises. Thus, a chronological approach is useful, and the chapter will broadly follow this. I will begin with sketching out in the introduction the system envisaged by Protocol 14. I will then turn to the relevant proposals made by the Woolf Report and the report of the Group of Wise Persons. Following this, I will analyse the changes which have been made with the entry into force of Protocol 14, in particular, the working of the single judge procedure and the new admissibility criterion. Thereafter, I will look at the effect of the Court’s ‘priority policy’ and the ongoing reform discussions. I take up different proposals to introduce various new types of ‘filtering’ mechanism. I also touch upon a number of other procedural innovations which have been proposed and which would involve amendments to the Convention, inter alia, creating a statute and delegating to the Court the power to make more substantive amendments to its own procedure, expanding the possibility of giving advisory opinions, the introduction of fees and a requirement to be represented by a lawyer.

I should note that while the focus in this chapter is procedure, the discussion inevitably comes around to the issue of substance, which is at the heart of the idea of a multilevel European architecture for rights protection, namely, what is the ECtHR for? Underlying the discussion of procedural issues is not simply the desire to increase efficiency, but also the imperative to maintain (or improve) the Court’s legitimacy. One of these threats is the problem of ensuring the quality and internal consistency of the case law, if the Court is delivering in excess of 2,000 judgments per year, and I look at this in the final section.7

4Council of Europe (CoE), High Level Conference on the Future of the European Court of Human Rights (Interlaken: 2010).

5CoE, High Level Conference on the Future of the European Court of Human Rights (Izmir: 2011).

6CoE, High Level Conference on the Future of the European Court of Human Rights

(Brighton: 2012).

7Another significant problem, which I will not deal with, is ensuring the quality of the judges themselves. See Lambert-Abdelgawad, Chapter 7 this volume.