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Ius Est Vigilantibus – The Copenhagen Declaration as a Challenge to the Future of the European Court of Human Rights

On 12 and 13 April 2018, the High Level Conference on the Reform of the European Convention on Human Rights System took place in Copenhagen. The Danish government wanted to make use of its chairmanship of the Committee of Ministers of the Council of Europe by hosting a new high-level conference and adopting a new declaration on the future of the European Court of Human Rights. This Court was erected in 1959 and rules on complaints of ordinary citizens who believe their human rights have been violated. These conferences and declarations have become something of a trend the last couple of years, with this being the sixth one in nine years.

The first few of these conferences were aimed at solving the problems that were plaguing the Court since its conception, most notably its overwhelming caseload and subsequent backlog. To do this, each declaration focused on similar key aspects to diminish the amount of cases that reached the Court. One recurring mantra was the intention of the member states to better protect human rights at the national level, which would result in fewer applications being brought before the Court.

However, the initial draft of the Copenhagen Declaration, released in February 2018, struck a different tone. In this nine-page document, the Danish government proposed several innovations to the Convention system that would lead to a more “effective, focused and balanced system of human rights protection”. Some of these proposals deserve a closer look.

The first and most contentious innovation the Danish government introduced was to invite the Court to adapt its procedures so that State Parties may indicate their support for the referral of a case to the Grand Chamber. Moreover, State Parties were encouraged to discuss the general development of areas of the Court’s case law of particular interest to them and, if appropriate, adopt texts expressing their general views. Finally, the Draft Declaration organised a string of informal meetings during which States Parties could discuss relevant developments in the jurisprudence of the Court.

At first glance these ideas might appear positive. They would lead to more involvement of State parties in the Convention system, which one could argue was the original aim of these high-level conferences. At second glance however, it becomes clear that these proposals would substantively increase the sway of member states over the Court. If member states would have the opportunity to indicate whether or not they would like to see a certain case referred to the Grand Chamber or if they agree with a certain strand of case law, this influence could become a tool used to exert undue political pressure on the Court, possibly undermining its independence.

Because of this, the draft declaration was heavily criticised by a variety of actors, including academics, NGOs, civil society and national human rights institutions. Some of them even relegated the whole draft back to the drawing board. Even the Court itself issued a response in which it expressed concerns on the draft. It appears this critique did not miss its mark; the final declaration was a complete overhaul of the draft and almost all contentious proposals were deleted.

The Copenhagen Declaration reveals two important things. First, it is notable that several governments – even from wealthy and developed countries – are still rather hostile towards the European Court and would like to curtail some of its power. This animosity mainly stems from the far-reaching impact the Court has had on government policy in contentious matters like migration. Secondly, it remains a priority for independent actors – academia, NGOs, journalists and civil society alike – to keep a watchful eye on future developments and actively oppose anything that might endanger the independence or the smooth functioning of the Court.

The European Court of Human Rights is the most successful judicial system of human rights protection in the entire world. Any development that negatively influences its functioning or its independence is liable to endanger the fundamental rights of millions of people.

As an authoritative voice in human rights adjudication, such developments might consequently also affect the jurisprudence of national or international courts worldwide. All actors invested in human rights will have to remain vigilant to prevent any form of political pressure on the Court. In the sphere of human rights law as well, ius est vigilantibus – justice is for those who pay attention.

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