By Emma Bonino and James A. Goldston
The European Court of Human Rights urgently needs reform if it is not to fall victim to its own success.
The European Court of Human Rights (ECtHR), the premier human-rights tribunal in the world, is under siege, but not from enemies. A victim of its own success, the court is collapsing under the weight of more than 160,000 pending applications, with 50,000 new ones lodged every year.
The moment for action may be at hand: this month, the UK assumed for six months the chair of the Committee of Ministers, the Council of Europe's highest decision-making body, pledging to secure a package of reforms.
The UK has yet to put forward firm proposals, but the coalition government has indicated it is considering, among others, steps to give the court more control over its overwhelming docket.
This UK government is not the most likely champion of the ECtHR: David Cameron, the prime minister, has made it clear he thinks the ECtHR has overreached itself, most famously in a 2005 ruling against a blanket British ban on prisoners' voting, which the UK has yet to implement.
But what is more important than the specifics presented by the UK is the broader impetus behind the proposals, which would in any case require the approval of all 47 member states. This push to reduce the court's caseload, and other problems, may determine whether the Strasbourg court lives or dies.
Founded in 1950, out of the ashes of the war, the court was a potent symbol of Europe's renewed commitment to the rule of law. Over time, it has become an extraordinary safeguard of individual liberty.
The court has issued numerous landmark judgments establishing principles not just of European, but of international, significance. The court held that some of the techniques by the British in Northern Ireland in the 1970s constituted torture. And in cases from Russia, Turkey, and points in between, it has breathed life into the central promises of a civilised society, including the right to a fair trial and access to a lawyer.
The court has pioneered a model of international justice that today sets the standard for institutions in Africa, the Americas and The Hague. And now, because of the Lisbon treaty, the EU itself will soon be subject to Strasbourg's edicts, through its accession to the European Convention on Human Rights.
But the court is being asked to do too much. Around 90% of the docket consists of cases that are manifestly unfounded or that raise issues previously decided upon.
A single court can hardly fix all the problems that afflict many of Europe's 800 million citizens. Nor should it try. The ECHR should be a backstop for national courts, which have primary responsibility for protecting rights. The court must be able to focus on problems of particular gravity or Europe-wide importance.
The Committee of Ministers of the Council of Europe must be more active in overseeing implementation of the court's judgments – thousands remain unexecuted – with the introduction of penalties for states that ignore its rulings. Ultimately, the greatest protection against overuse of the ECtHR is an improvement in the quality of justice administered in member states.
Finally, the process of judicial selection must be standardised, made more transparent and grounded in merit, not politics.
Few states want a vibrant judiciary looking over their shoulders, but the reforms must not be used as a wedge to weaken the ECtHR. Critics, in the UK and elsewhere, argue that the court's powers should be reduced because of isolated instances of overreach. But the ECHR has been right on the big issues, and has deepened European democracy and expanded Europeans' rights.
Some states may baulk at the cost of European justice. The court, though, is a good investment. For €60 million annually – less than the International Criminal Court or the Yugoslav tribunal – the ECtHR creates value for its citizens and increases its soft power abroad.
The court has become a global public good. Reform would save and reinvigorate it.
Emma Bonino is a member of the Italian Senate and a former European commissioner. James A. Goldston is executive director of the Open Society Justice Initiative.
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