Strengthening the Authority and Effectiveness of the Convention System

[Dr. Eray Acar is an independent researcher with a PhD in public law from Ankara University. He has worked as a researcher in Ankara University Law School and as a lecturer at Hitit University.]

The Steering Committee for Human Rights of the Council of Europe (CDDH/Steering Committee) published an Outcome Document containing elements for a political declaration, which is expected to be adopted in the upcoming Committee of Ministers Meeting in Chișinău (14-15 May). The document is an edited version of the previously published Preliminary Draft Text. Having compared these two texts, it appears that the CDDH’s solution to strengthen the authority of the ECtHR is fostering dialogue between Convention actors. Without underestimating the importance of the dialogue,  I argue that there is a need for returning to the basics of human rights and state theories to be able to strengthen the legitimacy and the authority of an international judicial review system. Because the political pressure is not only about the case-law but also about a general trend which involves tension between states and international organisations. I argue that taking the sovereignty of the States Parties as a basis for criticising ECtHR case-law is internally inconsistent because the constitutional state derives its legitimacy for protecting individual rights. 

CDDH Outcome Document Containing Elements for a Political Declaration

The European Court of Human Rights (Court/ECtHR) had encountered two important political statements by the State Parties in 2025. First, on 22 May 2025, nine member States, with the initiative of Denmark and Italy, issued an open letter. The main demand of the open letter was a change in the interpretation of the European Convention on Human Rights (Convention) on “irregular migration” issues. Second, on 10 December, this time with stronger support, a Joint Statement was issued by twenty-seven State Parties. This statement contained a more detailed list of change requests shaped around the “right balance” discourse on migration-related rights. The Joint Statement came just after a decision adopted in an Informal Ministerial Conference, which was aiming to answer the open letter in the first place. The decision stated that there is a need to prepare a new declaration on migration-related issues to be accepted at the next Foreign Ministers’ Meeting in Moldova, and CDDH had been assigned to prepare the draft. The committee published the preliminary draft text on 30 January. On 20 March, they published an edited version of the draft text as “CDDH outcome document for the political declaration”. 

CDDH’s Outcome Document answers the claims in the Joint Statement while both trying to hold and stand up for ECtHR’s case law, and acknowledge the States Parties to be right on their concerns about certain matters in principle, as in the Preliminary Draft Text. However, there are some noticeable differences between the first version of the draft and the second. Firstly, the Outcome Document shows a more detailed explanation and makes references to the up-to-date judgements on migration-related case-law. Secondly, there is a structural difference in the last section, which was a conclusions section in the first version, but it is now one of the former subtitles that turns out to be a title, as Communication on Convention Standards and Dialogue between Convention Actors. The other subtitles (clarity and consistency of the case-law, the importance of context) merged into the text of this section with a strong emphasis on the dialogue. 

Of course, some changes in wording and additional sentences show signs of what kind of approach the CDDH has adopted. I want to mention a few that I consider important. At first sight, word choices such as the Convention system does not operate in a vacuum and a reference to “fair balance” as an answer to “right balance” claim in the Joint Statement, may make us think that CDDH has a deferential attitude. However, these are statements that claims the Court has already been considering a right or a fair balance in its case-law. CDDH claims that the Convention is a living instrument and, quoting from the famous Soering v. UK(1989) decision (para. 89), the search for a fair balance between individual’s fundamental rights and the general interests of the community is inherent in the Convention. Nevertheless, this search does not cover absolute rights. The preliminary draft text uses the “right balance” expression in the “Expulsion of foreign nationals convicted of serious criminal offences and extradition of foreign nationals” section as a general principle, covering both Issues arising under Articles 3  and 8. The second version uses this term only for Article 8. This would be a kind of correction in the text. 

Another emphasised point is, with reference to a recent interview of the President of the Court, the integrity of the Court’s “judicial role relies on the full respect of the separation of powers and the absence of any kind of political pressure”. Considering the expression of “strengthening the authority and effectiveness of the Convention system” with the context of dialogue between Convention actors, it seems that CDDH finds the solution for the mitigation of the political pressure with the direct dialogue between States Parties and Convention organs. Nevertheless, this dialogue should not involve any dictation or pressure on the Court. 

Of course, CDDH’s approach is sensible. Addressing some Court judgments as they may have gone too far would not be a plausible option for a body whose main function is reporting on issues related to the effectiveness of the system and “development of human rights standards on emerging or challenging areas.” However, it is easy to guess that this kind of declaration will not soothe the political pressure.  Although there are opposing views on this issue (for instance, Stone Sweet, Sandholtz, and Andeas; Glas), some previous studies (for instance, Helfer and Voeten; Madsen) show that political pressure by the States Parties in the Interlaken Process for giving weight to the subsidiary principle and margin of appreciation has affected the case law (especially in migration-related cases). This time pressure might be more effective because the Court has never faced this kind of strong criticism with such strong support before.

There is a Need for a Broader Perspective

Considering this development as a mere concern about the case law or its misinterpretation by the domestic courts would be an incomplete diagnosis. (As it is shown in the Outcome Document, the migration-related case law only covers %1,5 of the entire case load.) It can be seen as an extension of long-lasting reform demands during the Interlaken Process,  but also the result of the erosion of the authority of international organisations and courts, because of the backslide in the rules-based international order.

Moving away from a rules-based international order includes various reactions against international organisations. States are increasingly tending to withdraw from international organisations, weaken their authority, narrow the scope of these international organisations’ activities or hinder them. Furthermore, there is a clear tendency towards de-legalisation in international law, with states preferring to bypass or disregard their international obligations. As a result, international courts are in a vulnerable position. 

Of course, tension between state sovereignty and international judicial review is not a new topic; however, this kind of discussion has never been fully answered, and there has always been a structural problem about international bodies’ democratic legitimacy. This deficit has not affected the authority of the Convention system, because being part of an international human rights organisation is also a legitimacy source for governments, especially for many which signed the Joint Statement. However, this reciprocal legitimacy condition is changing, and we can see that international courts’ public support is fading away. There have always been politicians who argue that their country should opt out of the ECHR system for many years, especially in the UK. Even though this kind of position had not gained public support, now, similar political movements put the ECtHR as one of the main reasons why they have issues with irregular migration. Especially, far-right populist politicians around Europe pump the idea of ECtHR is a tool to put pressure on national sovereignties. These kinds of discourses are accompanied by misleading images created by the media, which create antipathy towards human rights standards and human rights protection systems. After such narratives gain public support, the structural deficit (democratic legitimacy) reappears. Although it is clear that the rise of right-wing populism and nationalist rhetoric is among the main reasons for the state-centric approaches, it should also be borne in mind that this cannot be the sole explanation for the current trend. The signatories of the Joint Statement are not only countries with right-wing populist governments in power.

On the other hand, some other legitimacy sources other than democracy also exist. International judicial review can generate impartial decisions and judgments without being affected by the countries’ political atmosphere. They are in a better place to generate international standards. International judicial organs also have an indirect democratic legitimacy via governments which support international judicial review. Additionally, appointment procedures of the Court judges already depend on States parties’ nominations of candidates. Unfortunately, the recent political atmosphere is not helpful in polishing the merits and legitimacy of the ECtHR. There should be theoretical discussions including sovereignty, the aim of states, the balance between individual rights and collective moralities and the role of international judicial review to extent these legitimacy sources. Even if there are some legitimacy deficits of the international judicial organs, some other merits can cover these deficiencies and having proper conceptual foundations would prevent potential mischaracterisations of the existing problems.

Returning Back to the Basics

Georg Jellinek, in his landmark work Allgemeine Staatslehre, had followed a historicism which explains that the emergence of the modern state is interrelated to individual rights. Thereby, legal-political explanations of the state cannot be detached from the human rights idea, which limits the state. This state theoretical approach to human rights had failed within the globalisation discourses, because state could not serve as the main concept to understand global changes. If now, state-first approaches are in demand, and states criticise international courts with the main concepts of state theory, such as sovereignty and national borders or national identities, then we should turn back the understanding that human rights and state theory are two facets of the same coin and assess the legitimacy of international courts within the framework of state sovereignty. 

Of course, the thesis that protecting individual rights is a legitimacy source of state sovereignty doesn’t mean that an international body should review this protection. However, historical developments brought us here. The main reason we have international judicial review on human rights is that we had an explicit example that a state can deliberately insult very basic human rights, and because of the sovereign equality principle, no one be able to prevent that. Today, stepping back from supporting the international human rights courts stem either from the perception that the fear of some countries may fail to protect human rights inside is not relevant or a close danger, or states want to reduce the protection scope of individual rights. Claiming that international judicial review is against sovereignty is problematic for either case. First of all, the fear should be at its highest stake because we had the Gaza example just yesterday. If they want to reduce the protection scope, then it contradicts the legitimacy of the sovereignty of the constitutional state at first place.

Conclusion 

The Outcome Document of the CDDH recognises the validity of the concerns raised by the States Parties, but at the same time, it advocates that the Court already takes these concerns into account in its judgements. Draft text hopes to resolve the political pressure via direct dialogue between Convention organs. Without overlooking this approach, this post advocates that it is necessary to elaborate on the legitimacy of international judicial review and answer misleading narratives in the national public opinions on the role of the international courts. Bonavera Institute’s report on the UK media is a good example and serves as a fact-checking tool. However, answering the misleading understandings should also include theoretical discussions on the role of international judicial review and not only via dialogue, but also with further argumentation, the authority and effectiveness of the Court should be advocated.