‘People’s initiatives are no longer implemented. The democratic system is increasingly undermined’, the president of Switzerland’s largest party, the People’s Party, complained in July. This party has called for a people’s initiative supporting the supremacy of popular votes over international law, including the European Convention on Human Rights. Furthermore, it prefers withdrawing from the Convention over giving up its call. The Conservatives in the UK have expressed comparable concerns and proposed recently that the European Court of Human Rights should be an advisory body, or else the UK would withdraw. These are (rather extreme) exponents of the counter-majoritarian difficulty, which represents the apparent incompatibility of representative democracy, founded on majority rule, with judicial review, which allows electorally unaccountable judges to overrule the majority’s will.
The counter-majoritarian difficulty is one reason why the relationship between Strasbourg and the states parties is complex and why occasional outbursts of tension take place. Another source of complexity is, as the Court noted several times, the fact that domestic authorities are by reason of ‘their direct and continuous contact with the vital forces of their countries’ in principle best placed to evaluate local needs and conditions. And yet, the Court reviews the decision of these authorities in binding judgments, something which inevitably causes tension. Complexity is also produced by the diversity of laws and practices in the 47 Convention states in combination with the potential of Strasbourg judgments to impose uniform standards. This may lead domestic judges to wonder, as the UK Supreme Court did, whether Strasbourg ‘sufficiently appreciates or accommodates specific aspects of our domestic process’. If the answer is ‘no’, tension is likely to arise.
One way of controlling these complexities is indeed to simply leave the Convention system. Withdrawal does, however, not improve the system but escapes the tension completely and considerably reduces the significance of the system for the protection of human rights in Europe. Alternatives to withdrawal must exist that do not disregard the system, but instead stimulate the Court to adopt judgments that respect as much as possible majority rule, knowledge of domestic authorities and diversity.
One such approach would be a core rights approach. Core rights protection does not necessarily imply that the Court sticks to an ‘originalist’ understanding of the ECHR rights, or that it unilaterally labels certain rights as ‘core rights’, with the effect that States cannot legitimately interfere with these rights whatsoever. What it does mean, is that the Court rather than granting virtually every interest prima facie protection under the Convention, spends most of its efforts on the protection of core aspects of rights. Indeed, these aspects are so important and/or shared amongst a broad variety of jurisdictions, so that the Court can legitimately step in.
Another approach is to reinforce the dialogue between the Court and the states parties. Through a dialogue, the states can explain to the Court why majority rule took place with sufficient regard to the Convention, how, based on their knowledge, local needs and conditions should be evaluated and which specific aspects of their domestic process demand consideration. The Court, in turn, can provide an insight into how it pays respect to these matters and why such respect cannot be boundless. Dialogue is also important because it can help mitigate any tension that has developed.
Of course, other approaches can be envisaged to handle the complex relationship and outbursts of tension. We therefore warmly invite you to our workshop ‘The European Court of Human Rights and Vertical Integration: Demarcating Spheres of Influence and Dialogical Perspectives’ on Wednesday 21 January 2015 (more information here), in which you can participate by either presenting your own contribution on the topic or simply by attending and commenting on the spot.