The Evolution of Human Rights Law in Europe: Comparing the European Court of Human Rights and the ECJ, ICJ, and ICC

II. Evolution of Courts in Europe

Background of Human Rights

The increased focus on the importance of human rights over the course of the latter half of the 20th century in Europe has been influenced by centuries of legal evolutionary discourse. Cultural and traditional differences have also played an essential part in the formation of the legal culture that defines human rights. Conflicts and wars have also both directly and indirectly influenced legal systems.19

As power dynamics change, legal systems adapt to a certain extent to accommodate social mores.20 For example, many legal systems are often criticized for being "behind" technologically, specifically in cyber law. Recent progress in this field is evident with the creation of the Budapest Convention, ratified in 2004 to regulate cybercrime,21 a concern that had not been as directly addressed to date. This dynamic has been a trend in law dating back as far as Roman civil law and English common law.22 Some posit that the openness of law has changed in that it became more open to revision after the French Revolution (1789),23 and more inclusive of a myriad of cultures and ideologies.

Additionally, the influences from other legal cultures have played essential roles in shaping the current European legal system. Jean-Jacques Rousseau and the Baron de Montesquieu contributed to the Napoleonic Code, which in itself became one of the most influential legal doctrines. Many legal institutions are based on the Code, and have implemented elements of it into their own respective legal codes.24 It has been influential and incorporated into the legal systems of many European countries and some South American countries.25

The ideologies reflected by the Code promote the protection of individuals, as opposed to primarily focusing on states' rights. The shift toward protecting the individual manifested itself after the Second World War, predominately in Western Europe26 and with the adoption of the Universal Declaration of Human Rights. In addition to the creation of the Convention of Human Rights in 1953, Europe continued to shift in the direction of defending and protecting individual rights.

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Unfortunately, the enthusiasm for human rights protection expressed by Western Europe was not matched by Eastern Europe. This was made evident by Eastern Europe's response to Western European's foundation of NATO (North Atlantic Treaty Organization) in 1949 with the Warsaw Pact in 1951. Eastern Europe remained focused on the "collective good" as opposed to the protection of the individual.27 This ideology remained the norm arguably until the end of the Cold War in 1989.28

The significance of the contrasting approaches taken by Western and Eastern Europe was critical to the legal systems that resulted. As discussed, the European Court of Justice (established in 1953) holds the most similar position to the European Court of Human Rights with regard to its protection of rights. To understand the ways the courts function, it is essential to identify their individual histories.

III. Evolution of the European Community

The Treaty of Paris (1951) established the European Coal and Steel Community, which would later become the European Union. Under the auspices of the European Coal and Steel Community, the European Court of Justice was formed upon the premise that each member state would maintain its own supreme court.29 The original court allotted one judge per state with the addition of one member to ensure a decision without a tie, for a total of seven judges. The original signatory states to the European Coal and Steel Community Act in 1957 ratified the Treaty of Rome, which also provided grounds for the creation of this unprecedented supranational system.

This was another critical step towards the establishment of the Western European focus on human rights. The Community formally became the European Union in 1992 with the ratification of the Treaty of Rome. Through the EU came many of the documents that created more bases and specific cases for the protection of human rights. For example, the membership of states to the European Union was contingent upon being party to the Convention on Human Rights.3031

Western states were concerned that the Eastern European states would not follow human rights standards as strictly as in the west.32 This concern was not limited to the European continent, but globally, in various countries in Africa, Asia, and the Middle Eastern. Ken Roth of Human Rights Watch profoundly stated:

The latest batch of new members [to the Commission on Human Rights] illustrates how poorly this system works. They include such dubious paragons of human rights virtue as Algeria, the Democratic Republic of Congo, Kenya, Libya, Saudi Arabia, Syria, and Vietnam. Needless to say, such governments do not seek membership out of a commitment to promote human rights abroad or to improve their own abysmal human rights record. Rather, they join the commission to protect themselves from criticism, and to [eventually] undermine its work.33

The initial enforcement and (arguably) intent to uphold standards of human rights was insufficiently supported at the inception of the EU. Thus, the courts themselves are not necessarily blameworthy in their inability to ameliorate the status of human rights violations. Although the ICJ has the authority to impose fines upon member states that do not comply with its rulings, it is an insufficient incentive to motivate members to comply with its decisions.34

It is necessary to have the combined force of willing states coupled with court rulings to allow for an effective legal basis in European countries. "The decision of the court has no binding force except between the parties and in respect to that particular case."35 Not only does this undermine the legitimacy of legal decisions but challenges the legal institutions themselves on several levels.

The European Court of Human Rights adopted a structure that endows it with the power to concentrate efforts to areas that are a priority in its jurisdiction. These adaptive methods include two main guiding principles representing the idealism of the European Convention on Human Rights, and are known as the Margin of Appreciation and Living Instrument doctrines.36 The Margin of Appreciation doctrine established the idea that domestic courts will still retain a great amount of power even if they fall under the jurisdiction of the European Court of Human Rights simply by being a member of the Council of Europe.

The countries that are under the European Court of Human Rights are not necessarily obligated to follow the decisions of the Court: it is dependent upon each state, and how much power they wish to delegate and hand over to the Court. This is extremely problematic, because it becomes difficult to determine with certainty which court will stand as the final authority on various issues. It is the decision of each domestic court to determine if the country's individual court system will take precedence over the European Court of Human Rights.37

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This problem has been justified to provide as a safeguard for the retention of domestic power, but is counterproductive to its intent. By not maintaining a consistent application of law, the court detracts from its legitimacy and undermines its own authority. Historically, when courts have legally binding decisions, this has resulted in significant societal impact (not necessarily immediate, but over time).38 The "domestic effect of the Convention depends on whether a state employs a monistic or dualistic approach to international law."39 This is based through the safeguard of Article 46 of the Convention on Human Rights:

1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.
3. If the Committee of ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision shall require a majority vote of two thirds of the representatives entitled to sit on the committee.
4. If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decisions adopted by a majority vote of two thirds of the representatives entitled to sit on that committee, refer to the Court the question whether that Party has failed to fulfill its obligation under paragraph 1.
5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case."40

There are some advantages to the Margin of Appreciation doctrine, for example, it allows the court sufficient authority without infringing upon domestic courts' power. " 'It is in no way the Court's task to take the place of the competent national court but…to review…the decision…in the exercise of their power of appreciation.' "41 If other supranational courts such as the European Court of Justice employed this distinction of division of power, they would be able to achieve a balance between themselves and domestic courts.

Consequently, neither would feel that its authority had been undermined, and would maintain a more effective legal authority in resolving cases. The Living Instrument doctrine provides for the concern that law will not change as society evolves, thereby maintaining the relevance of laws over time. This doctrine allows human rights protection to grow and evolve with changes in European society, without compromising the integrity of the laws.42

The Council of Europe plays "the irreplaceable role as the leading human rights organization in Europe"43 and was founded upon "…[the] three pillars [of] the enjoyment of human rights and fundamental freedoms by all persons within the jurisdiction of its member states, the consolidation of the rule of law, and the existence of a genuinely pluralistic democracy, based on the …moral values which are the common European heritage."44

Recently, cooperation of the European Union with the Convention on Human Rights (ECHR) has been proposed through the Lisbon Treaty.45 Furthermore, Protocol 14 of the ECHR makes the members of the EU and European Court of Human Rights subject to the Convention on Human Rights,46 and any subsequent human rights law under the jurisdiction of the Council.

Currently there are concerns with consistent application of the law under the European Court of Human Rights and the European Court of Justice. The alliance of the Council and the EU would help to alleviate the concern, but there would still remain a tenuous relationship between the two courts.Continued on Next Page »