Public International Law/Human Rights Law/Human Rights Protection/European Human Rights System





Author: Jens T. Theilen "Required knowledge: Recurring Themes in Human Rights Doctrine" "Learning objectives: to understand the institutional set-up and regional idiosyncrasies of human rights protection in Europe"

A. Introduction
The institutionalization of rights in Europe has developed primarily within two organisations: the Council of Europe (CoE), with a broad range of member states extending to the east of Europe, on the one hand, and the European Union (EU) and its predecessors, the European Communities, on the other. Under EU law, the primary reference point nowadays is the Charter of Fundamental Rights, which was originally proclaimed in 2000 and received formal legal force in 2009 under the treaty of Lisbon (Art. 6 (1) TEU). Given the many particularities of the EU as a supranational legal order, the development and scope of its fundamental rights protection are beyond the remit of this chapter, except to note that it largely shares the market-based outlook of EU law as a whole. The focus in what follows will be on the human rights protection developed in the context of the CoE, notably but not exclusively the Convention for the Protection of Human Rights and Fundamental Freedoms – informally known as the European Convention on Human Rights (ECHR) – and the European Court of Human Rights (ECtHR) whose task it is to interpret it. All 46 member states of the CoE are party to the ECHR. The EU is not, nor is it likely to be in the foreseeable future given concerns about the legality of accession to the ECHR under EU law.

I. Historical origins and development
The ECHR was the first treaty to be drafted under the auspices of the CoE and is still widely considered to be its crowning achievement. Originally a product of Western European states in the immediate postwar period, it was conceived of to prevent the backsliding of newly democratic states into totalitarianism and to provide a bulwark against the perceived threat of communism. It is also worth noting that several of the states involved were major colonial powers. With the period of formal decolonisation not yet at its peak, they acted on the assumption that they would maintain their colonial territories for a significant time yet and drafted the ECHR in such a way that it would not run counter to their interests in doing so. The ECHR thus ‘embodies in its very text the contradictions between the proclamation of universal aspirations and realpolitik interests of political subjugation’.

The ECHR was opened for signature in 1950 and came into force in 1953. From the very beginning, it has been supplemented by various protocols, which can broadly be divided into two groups. The first group, optional protocols, can enter into force despite not being ratified by all the states parties to the ECHR. According to the general principle of pacta tertiis non nocent, they are binding only on those states which do ratify them, and provide additional substantive guarantees (e.g. the rights to property, to education, and to free elections in Protocol No. 1) or procedural mechanisms for those states only. The second group, mandatory protocols, enter into force only after being ratified by all parties and amend the text of the ECHR itself. Most importantly, Protocol No. 11 to the ECHR fundamentally transformed the system of judicial oversight when it entered into force in 1998. While this system was originally conceived of as optional (and individual complaints were directed to the now-defunct European Commission of Human Rights, with the ECtHR acting only as a second instance), Protocol No. 11 turned the ECtHR into a permanent court with obligatory jurisdiction vis-à-vis all States parties – subject to the limitations of Art. 56 ECHR mentioned above. Another key change around the same time was the significant enlargement of the CoE, which generated a great deal of discussion as to whether and how the accession of many Central and Eastern European states to the ECHR should entail a different role for the ECtHR.

II. The European Court of Human Rights and its procedures
The ECtHR is composed of 46 full-time judges (still with a clear male majority despite some tepid attempts to increase the number of women ), one for each state party. The majority of applications is dealt with by individual judges, committees of three judges, or Chambers of seven judges (Arts. 26 to 29 ECHR). Particularly important cases may be decided by the Grand Chamber consisting of seventeen judges, either by relinquishment of jurisdiction by the Chamber (Art. 30 ECHR) or by referral at a party’s request after the Chamber’s judgment (Art. 43 ECHR).

The individual complaint procedure (Art. 34 ECHR) is the basis of the overwhelming majority of applications to the ECtHR. Admissibility criteria (Art. 35 ECHR) include, inter alia, the ECHR’s temporal and spatial applicability, the victim status of the applicant(s), the exhaustion of domestic remedies, and a four-month time limit (as of February 2022 according to Protocol No. 15 to the ECHR, previously six months). While seemingly of a formal nature, some of these requirements can become quite politically loaded and have generated as much case-law and academic commentary as certain substantive provisions. This goes in particular for cases involving extraterritorial jurisdiction, which often relate to politically sensitive topics such as wartime measures or migration management. But it also holds true of other admissibility criteria: for example, the ECtHR’s first climate change case (currently pending) is directed against 33 respondent states given the transnational aspect of climate change. The applicants claim that it would not therefore have been feasible to first pursue their claims at the national level in all 33 states, which raises questions as to potential exceptions from the requirement of exhaustion of domestic remedies.

Compared to individual complaints, inter-State applications (Art. 33 ECHR) and advisory opinions at the request of the CoE’s Committee of Ministers (Art. 47 ECHR) are significantly less common, and not more than a handful of judgments and opinions by the ECtHR have been issued in the context of these procedures. When they are used, however, inter-State applications tend to be high-profile cases, as with various cases brought by Georgia and Ukraine in the context of Russian invasions before Russia was expelled from the CoE. As of 2018, Protocol No. 16 to the ECHR, an optional protocol, allows the ECtHR to also give advisory opinions at the request of highest national courts with regard to cases pending before the latter. Protocol No. 16 is viewed by many as an important step towards strengthening judicial dialogue between national courts and the ECtHR, but it is not yet widely ratified and it remains to be seen to what extent national courts will make use of the new procedure. The ECtHR delivered its first advisory opinion at the request of a national court in 2019, on the issue of parenthood and gestational surrogacy.

III. Current discussions and future challenges
An idiosyncrasy of the ECtHR compared to other regional human rights courts is the extremely high number of cases it deals with: in 2022, for example, 45.500 new applications were allocated and overall 74.650 applications were pending. (By way of contrast, the number of pending cases before the IACtHR and the AfrCtHR does not exceed three digit numbers.) While legal analysis often focusses on ‘landmark cases’ which deal with politically sensitive topics or develop the material standards set by the ECtHR, the overwhelming majority of applications are disposed of by means of an admissibility decision. Protocol No. 14 to the ECHR, a mandatory protocol, introduced various measures to streamline the procedure for such decisions and thereby manage the case load: for example, single judges may now declare cases inadmissible (Art. 27 ECHR) and applicants must usually have suffered a ‘significant disadvantage’ for their application to be considered admissible (Art. 35 (3) lit. b ECHR). Such measures are controversial, however: there have been repeated debates over whether the ECtHR should focus on providing individual justice or take a broader, ‘constitutional’ view.

Another area of discussion, particularly in recent years, concerns the legitimacy of the ECtHR and the backlash its case-law has generated in some areas.

This has led to increasing fears that the efficiency of the Strasbourg system might be endangered if the states parties were to withdraw their support. In particular, the states parties might no longer regularly abide by the ECtHR's judgments: while these are legally binding and their execution is supervised by the CoE's Council of Ministers (Art. 46 ECHR), there is no truly effective mechanism to ensure compliance. Some states claim primacy for their national constitutions over the ECHR and use this internal legal hierarchy to prevent the implementation of certain judgments. The regular meetings of the states parties to consider possible reforms of the ECtHR, too, have increasingly focussed on whether and how the ECtHR's role could or should be circumscribed – although this has, in turn, not gone uncriticised.

Debates on how the ECtHR should respond in such a situation involve questions of judicial strategy and principle, often connected to doctrinal figures such as the margin of appreciation and the notion of subsidiarity. But these discussions also draw attention to the limits of what is considered possible within institutionalized human rights protection: if even incremental change is controversial and may draw the ire of the states parties to such an extent, then more fundamental forms of injustice are bound to go unchallenged.

C. Other Council of Europe Treaties and Documents
Human rights protection within the CoE is shaped by the ideological distinction between civil and political rights, on the one hand, and economic, social and cultural rights, on the other. The ECHR’s guarantees focus on the prior, although they cannot be entirely separated from the latter. Some economic and social rights, particularly various labour rights and the right to social security, are guaranteed in the European Social Charter (ESC), which was first adopted in 1961 and is gradually being replaced by a revised version of 1996. Many rights included in the International Covenant on Economic, Social and Cultural Rights are notably absent at the European level: ‘private property is a right for Europeans, but food is not’. The difference in funding is a telling manifestation of these priorities: the CoE’s budget for 2021 includes over 73 million Euros for the ECtHR (not including additional funds under the heading of “effective ECHR implementation”) and a relatively meagre 4 million Euros for social rights.

These priorities are reflected in the institutional and procedural design of the European Committee of Social Rights, which is responsible for monitoring compliance with the ESC. It does so primarily by reference to reports submitted by the states parties (comparable with the reporting system in place for many human rights treaties at the global level). An additional protocol from 1995 further introduced the possibility of collective complaints, for example by trade unions and certain non-governmental organisations with consultative status within the Council of Europe. As of 2023, however, it has been ratified only by 14 states. In stark contrast to the ECtHR, there is no complaint procedure for individuals.

To round off the picture, it is worth gesturing towards the manifold other treaties developed under the auspices of the CoE, many of which can be considered specialized human rights treaties or at least touch upon human rights issues such as data protection or the legal status of migrant workers. Some of these treaties, such as the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment and the Council of Europe Convention on preventing and combating violence against women and domestic violence (‘Istanbul Convention’), are equipped with a monitoring body which provides more specific but not legally binding guidance. Human rights standards may also be proclaimed, likewise in non-binding form, by various bodies of the CoE such as the Committee of Ministers or the Parliamentary Assembly. The ECtHR at times refers to these treaties and other documents as part of its interpretation of the ECHR, thus indirectly giving them binding legal force even when this was not envisaged at the time of their drafting or when they are not widely ratified.

D. Outlook
Overall, what stands out in the European system of human rights protection is the elevated position granted to the ECtHR and, with it, the focus on civil and political rights in a highly institutionalized form. This brings with it in particularly stark form all the advantages and disadvantages of institutionalizing human rights. In the European self-perception, the ECtHR is often lauded as a beacon of human rights protection, to be emulated by other regions. The ECtHR has indeed contributed significantly to the development of human rights in Europe over the years, but this assessment should not distract from the cautious and oftentimes timid stance which it tends to take in its judgments: on topics ranging from religious freedom over gay and trans rights to racial violence, other regional courts and quasi-judicial bodies at the global level have challenged injustices by finding human rights violations while the ECtHR demurred. It is important, then, to not overemphasise the achievements of the ECtHR but rather to read its case-law with a critical eye and to remain alert to other approaches to human rights, both in Europe and elsewhere.

Further Readings

 * Gerards J, General Principles of the European Convention on Human Rights (Cambridge University Press 2019)
 * Dembour M-B, Who Believes in Human Rights? Reflections on the European Convention (Cambridge University Press 2006)
 * Aust HP and Demir-Gürsel E (eds), The European Court of Human Rights. Current Challenges in Historical Perspective (Edward Elgar 2021)
 * Heri C, Responsive Human Rights. Vulnerability, Ill-treatment and the ECtHR (Hart 2021)
 * Theilen JT, European Consensus between Strategy and Principle. The Uses of Vertically Comparative Reasoning in Regional Human Rights Adjudication (Nomos 2021)
 * Churchill RR and Khaliq U, ‘The Collective Complaints System of the European Social Charter: An Effective Mechanism for Ensuring Compliance with Economic and Social Rights?’ (2004) 15 EJIL 417

Further Resources

 * The website of the ECtHR includes various factsheets on different topics within its case-law as well as other helpful summaries.
 * There are several excellent blogs covering developments related to the ECtHR; see in particular Strasbourg Observers (providing case notes for important judgments of the ECtHR), ECHR Blog (with a wide variety of content including updates on institutional developments and new academic publications) and ECHR Sexual Orientation Blog (focussing on case-law related to sexual orientation).

Summary

 * The system of human rights protection in Europe takes place within different institutional contexts, notably the EU and the CoE. The ECHR – which primarily protects civil and political rights – is often the focus of discussions, but there are a large number of different treaties including those protecting socio-economic rights, notably the revised ESC.
 * The text and aims of the ECHR were shaped by the geopolitical context in which it was drafted. There have since been significant developments due to a growing number of states parties, additional Protocols to the ECHR and the case-law of the ECtHR. The extent to which the original historical context of the ECHR remains relevant is disputed.
 * Current discussions about the role of the ECtHR focus in particular on its unusually high workload and on maintaining its legitimacy vis-à-vis the states parties to ensure continued support and execution of its judgments. This arguably makes the ECtHR more cautious about finding human rights violations compared to other human rights institutions.