Parliaments and the European Court of Human Rights

by Alice Donald, Philip Leach

Overview

The European system of human rights protection faces institutional and political pressures which threaten its very survival. These institional pressures stem from the backlog of applications before the European Court of Human Rights, the large number of its judgments that remain unimplemented, and the political pressures that arise from sustained attacks on the Court's legitimacy and authority, notably from politicians and jurists in the United Kingdom. This book addresses the theme which lies at the heart of these pressures: the role of national parliaments in the implementation of judgments of the Court. It combines theoretical and empirical insights into the role of parliaments in securing domestic compliance with the Court's decisions, and provides detailed investigation of five European states with differing records of human rights compliance and parliamentary mobilisation: Ukraine, Romania, the United Kingdom, Germany, and the Netherlands. How far are parliaments engaged in implementation, and how far should they be? Do parliaments advance or hinder human rights compliance? Is it ever justifiable for parliaments to defy judgments of the Court? And how significant is the role played by the Parliamentary Assembly of the Council of Europe? Drawing on the fields of international law, international relations, political science, and political philosophy, the book argues that adverse human rights judgments not only confer obligations on parliamentarians but also create opportunities for them to develop influential interpretations of human rights and enhance their own democratic legitimacy. It makes an authoritative contribution to debate about the future of the European and other supranational human rights mechanisms and the broader relationship between democracy, human rights, and legitimate authority.

Product Details

ISBN-13:	9780191093166
Publisher:	OUP Oxford
Publication date:	08/18/2016
Sold by:	Barnes & Noble
Format:	eBook
Pages:	340
File size:	1 MB

About the Author

Alice Donald is a Senior Lecturer in the Department of Law and Politics at Middlesex University. Her socio-legal research focuses on the implementation and impact of human rights law, particularly in the UK and Europe. Alice was formerly (1991-2005) a commissioner, editor and broadcast journalist in the BBC. Philip Leach is Professor of Human Rights Law at Middlesex University, a solicitor, and Director of the European Human Rights Advocacy Centre (EHRAC). He has been a member of the Independent Advisory Panel on Deaths in Custody since 2009 and in 2014 was appointed as a member of the Independent Review into Self-inflicted Deaths in Custody of 18-24 year olds (the Harris Review).

Table of Contents

Table of Cases xv
Table of Legislation xxii
List of Abbreviations xxv

1. Introduction: Origins and Methodology 1
1.1 Institutional and Political Pressures on the Convention System 3
1.2 Methodology 12
1.3 Outline 19

PART I
2. The Strasbourg System: Roles and Relationships 23
2.1 States' Obligations under the Convention 23
2.2 Practices and Procedures of the Court in the Pre- judgment Phase 28
2.3 The Court's Developing Approach to Redress 30
2.4 Contact between the Court and National Parliaments 35
2.5 The Role of the Committee of Ministers 36
2.6 The Role of the Parliamentary Assembly of the Council of Europe 47
2.7 The Role of Other Council of Europe Bodies 54
2.8 Assessing the Effectiveness of the Supervision System 56
2.9 Reform of the Convention System 60
2.10 Conclusion 63

3. National Implementation and the Role of Parliaments 65
3.1 Parliaments and Theories of Compliance 66
3.2 Identifying and Measuring Compliance in the Convention System 69
3.3 Recognition of the Parliamentary Role 72
3.4 Parliamentary Structures and Mechanisms for Human Rights Oversight 75
3.5 Executive Structures and Mechanisms 91
3.6 Parliaments and the Domestic Politics of Compliance 99
3.7 Assessing the Effectiveness of Parliamentary Bodies 108
3.8 Conclusion 111

4. Human Rights, Democracy, and Legitimacy in the Convention System 113
4.1 Is There a Problem of Legitimacy? 115
4.2 What is Legitimacy? 119
4.3 What is Democratic Legitimacy? 123
4.4 The Democratic Legitimacy of the European Court of Human Rights 127
4.5 The Court's Engagement with the Parliamentary Process: Deference and Subsidiarity 134
4.6 Resolving Disagreements about Rights 144
4.7 Conclusion 153

PART I I
5. Ukraine 157
5.1 The Constitutional, Legal, and Political Landscape 157
5.2 Ukraine and the Convention System 162
5.3 Implementation of ECtHR Judgments: The Current System in Ukraine 172
5.4 Implementation of ECtHR Judgments: The Role of Parliament 176
5.5 The Relationship between Parliament and Council of Europe Bodies 184
5.6 Conclusion 188

6. Romania 190
6.1 The Constitutional, Legal, and Political Landscape 190
6.2 Romania and the Convention System 195
6.3 Implementation of ECtHR Judgments: The Role of Parliament 203
6.4 Implementation of ECtHR Judgments: The Role of the Executive 209
6.5 Monitoring and Implementing Judgments against Other States 211
6.6 Implementation of Specific Judgments 212
6.7 Conclusion 222

7. The United Kingdom 224
7.1 The Constitutional, Legal, and Political Landscape 224
7.2 The UK and the Convention System 225
7.3 Implementation of ECtHR Judgments: The Role of Parliament 232
7.4 Implementation of ECtHR Judgments: The Role of the Executive 239
7.5 Monitoring and Implementing Judgments against Other States 242
7.6 Implementation of Specific Judgments 244
7.7 Conclusion 259

8. The Netherlands 261
8.1 The Constitutional, Legal, and Political Landscape 261
8.2 The Netherlands and the Convention System 262
8.3 Implementation of ECtHR Judgments: The Role of Parliament 267
8.4 Implementation of ECtHR Judgments: The Role of the Executive 273
8.5 The Netherlands Institute for Human Rights 274
8.6 Monitoring and Implementing Judgments against Other States 275
8.7 Relationship between Parliament and Council of Europe Bodies 276
8.8 Conclusion 277

9. Germany 279
9.1 The Constitutional, Legal, and Political Landscape 279
9.2 Germany and the Convention System 285
9.3 The Politics of Implementation 286
9.4 Implementation of ECtHR Judgments: The Role of Parliament 292
9.5 Implementation of ECtHR Judgments: The Role of the Executive 298
9.6 Conclusion 301

10. Conclusion 303
10.1 The Question of Capacity 304
10.2 Interaction between Parliaments and Council of Europe Bodies 309
10.3 The Question of Legitimacy 311

Appendix: Interviewees 315
Index 319
1. Introduction
2. The European System of Human Rights Protection
3. Parliaments and Human Rights
4. Ukraine
5. Romania
6. United Kingdom
7. Netherlands
8. Germany
9. Conclusion

Editorial Reviews

"This book makes an excellent and welcome contribution to the academic discussion of the parliamentary aspect of human rights protection and will be of interest not only to lawyers and political scientists but also to a wide range of practitioners." — Davor Jancic, Common Market Law Review

"...Donald and Leach's study exploring the relationships between national parliaments and the European Convention system is a much needed and welcome foray into empirical and contextual scholarship which appropriately merges eye-opening insights from legal doctrine and political science." - Hayley J. Hooper, Law Quarterly Review

From the Publisher