By Anne-Katrin Speck, Research Associate, Human Rights Law Implementation Project, Middlesex University London, School of Law
EIN founding member and Vice President Professor Philip Leach (Middlesex University London) participated in a Conference entitled ‘Principled Resistance against ECtHR Judgments – a New Paradigm?’, which took place at the University of Konstanz (Germany) on 1-2 June 2017. The Conference provided a forum to discuss certain states’ refusal, notably by reference to national (constitutional) law, to abide by the judgments of the European Court of Human Rights (ECtHR).
Two general presentations, country reports on Germany, Italy, Switzerland, the United Kingdom and Russia, two speeches presenting the ‘view from Strasbourg’, a concluding roundtable discussion and intense discussions raised a number of issues of interest to EIN.
Grounds for resistance
Several speakers suggested a typology of grounds invoked by domestic actors – principally national courts, but also political, academic and media actors – for justifying non- (or partial) implementation. Among the reasons identified for why criticism of the Strasbourg Court had surfaced were:
- the claim that the ECtHR had overstepped the boundaries of justified evolutive interpretation;
- a perceived failure on the part of the Court to respect the principle of subsidiarity;
- alleged shortcomings in the ECtHR’s way of establishing the facts of a case;
- reasons related to the Court’s legitimacy and authority;
- policy makers seeing human rights as an impediment to making policies;
- the emphasis put on the counter-majoritarian dynamics of human rights;
- the vagueness of human rights norms, which is seen as creating a risk for judicial interpretation unduly interfering with politics;
- the ‘foreignness’ of the Court, resulting in both a lack of ‘ownership’ of (international) human rights commitments and in viewing Strasbourg as a threat to national sovereignty; and
- an alleged lack, in some judgments of the ECtHR, of convincing reasoning.
Most speakers explicitly challenged the validity of most of these criticisms, and there was agreement that these could not be valid justifications for non-compliance.
Has this criticism translated into 'principled' or 'reasoned resistance'?
Participants observed that instances of outright rejection of an ECtHR judgment were very rare – the infamous prisoner voting saga being perhaps the clearest example of ‘principled resistance’ (though not by all UK actors). Even the Russian Constitutional Court’s (RCC) decision declaring the OAO Neftyanaya Kompaniya Yukos judgment on just satisfaction impossible to execute was not seen as a stand-out example of ‘principled resistance’ and it was noted that, quite remarkably, the RCC had not challenged the ECtHR’s ruling on the merits (instead, it had referred to the element of Russia being a country in transition to justify non-execution of the just satisfaction judgment).
Interesting parallels can be drawn between the techniques devised by the courts and legislatures of the states analysed to depart from the Strasbourg Court’s case law. The highest courts of the UK, Italy and Russia, for instance, were all found to make a distinction, though in varying forms, between well-established ECtHR case law (which ought to be followed) and non-established case law (which merely needs to be taken into account). Challenges to the binding force of ECtHR challenges moreover appeared to stem from the sub-constitutional rank of the Convention in some Contracting States’ legal orders.
Many more examples of judicial ‘reluctance’ to follow Strasbourg jurisprudence were discussed, among them cases concerning visitation rights of life prisoners (Khoroshenko v Russia); the balancing of freedom of expression and the right to respect for private life (the Von Hannover cases against Germany); the use of hearsay evidence in criminal trials (the Al-Khawaja and Tahery cases against the UK); and political advertising on TV (the Verein gegen Tierfabriken cases against Switzerland). In all of these instances, reconciliation of conflicting domestic and international provisions or interpretations was ultimately possible, leading the experts to conclude that these instances of criticism could most accurately be construed as genuine engagement of states with the Strasbourg system. Such ‘reasoned resistance’ provided a welcome opportunity for dialogue capable of strengthening the legitimacy and authority of the Court.
How can the tension be overcome?
This dialogue was identified as a crucial means to accommodate the inherent tension between international obligations and national (constitutional) law invoked as justification for non-implementation.
Judge Nußberger pointed to a number of legal tools used in the ECtHR’s decision-making process to accommodate criticism directed at the Court, notably (i) the margin of appreciation doctrine; (ii) transparency of the decision-making process by allowing for dissenting opinions; (iii) the possibility of self-correction (in Grand Chamber judgments); (iv) third party interventions; (v) adaptation and change of jurisprudence; and (vi) the adoption, within limits, of a deferential approach.
Professor Nollkaemper (University of Amsterdam) ventured that by interpreting ‘consubstantial’ norms, i.e. internationalised (domestic) norms, national courts could in effect be seen as engaging in judicial dialogue on the interpretation of substantially equivalent international norms. It was moreover suggested that one may have to respect internal processes and allow for non-performance by some domestic actors as long as the state as a whole complies with its obligations.
This last point arguably underscores the need to not regard the state as a monolithic entity, but as a collection of actors which, through their relative strengths and interactions, determine whether, and to what extent, implementation occurs. This is the premise on which the Human Rights Law Implementation Project, a three-year (2015-2018) collaborative project between four leading academic human rights Centres (Bristol, Essex, Middlesex and Pretoria) and the Open Society Justice Initiative, seeks to examine the factors which impact on human rights law implementation by nine states across Europe, Africa and the Americas, looking at (i) selected decisions deriving from individual complaints to UN treaty bodies; and (ii) selected judgements and decisions of the bodies in the three regional human rights systems.
Concluding reflections: the notion of 'principled resistance'
During the concluding roundtable discussants inter alia reflected on the usefulness of the term ‘principled resistance’. While some argued the notion had proved capable of triggering an important debate, Professor Leach rejected the term because it risked normalising non-compliance (see also this recent blog post by Dr. Alice Donald). He ventured that one could not speak of ‘principled resistance’ and deny the politics behind such behaviour. Others agreed that the term ‘principled’ hinted at an ethical stance, although domestic actors’ intensions may be pragmatic or even opportunistic. Moreover, it was found difficult to make a distinction between ‘functional disobedience’ or ‘reasoned resistance’ and outright non-compliance.
The Conference made a valuable contribution to exploring the root causes of criticism against the ECtHR. It provided a forum for examining the reaction of the Strasbourg system, most notably the ECtHR itself, to the discernible ‘critical mood’. The discussions cumulated in a call upon both the Committee of Ministers and all States Parties to the Convention to use all the tools at their disposal to ensure effective implementation of Strasbourg Court judgments, and invited all relevant actors to stress the fundamental achievements of the Convention system (see this CoE study on the issue).