The Boundaries of Human Rights Jurisdiction in Europe
Shelton, Dinah, Duke Journal of Comparative & International Law
Over the past half-century, complex systems of norms, institutions and procedures have regionalized many aspects of human rights law in Europe. The Contracting Parties to the European Convention on Human Rights, (1) for example, have repeatedly lengthened the list of guaranteed rights and expanded individual access to the European Court of Human Rights. The result, as J.G. Merrills has noted, is that "there is no aspect of national affairs which can be said to be without implications for one or other of the rights protected by the Convention, [and consequently] there is no matter of domestic law and policy which may not eventually reach the European Court." (2) Those issues that might escape jurisdiction of the ECHR may still be scrutinized if they fall within the jurisdiction of the European Union's Court of Justice (ECJ) or the mandate of the bodies and procedures established in the framework of the Organization for Security and Cooperation in Europe (OSCE).
The strengthening and proliferation of European regional bodies monitoring the human rights performance of their Member States raise fundamental issues of governance. While the need for regional human rights protection is unquestioned in Europe, views diverge about the appropriate division of jurisdiction and authority between the Member States and regional bodies and among the different regional institutions. In particular, there is tension between the desire to have regional bodies establish and enforce uniform human rights standards and the need to respect Member States' diversity. Where regional human rights norms do exist, a second and related problem concerns limitations on those rights, and achieving the appropriate balance between individual rights and the state general interest. Who decides, for example, between competing values such as privacy and national security, or home life and environmental protection? As the membership in European institutions has expanded eastward, concerns about maintaining a high standard of human rights protection have increased the desire for uniform regional norms.
This article addresses these questions and concerns. The first part presents an overview of the three regional systems of Europe concerned with human rights. Part II examines the role of the two regional courts, the ECHR and the ECJ, as supervisory bodies established to ensure compliance with regional obligations. It discusses the courts' methods of interpreting human rights obligations, including the notion of subsidiarity and the doctrine of margin of appreciation. Also considered are implied rights, evidence and fact-finding, the remedial powers of the courts, and the regional response to gross and systematic violations. Part III considers the problem of potential conflicts of jurisdiction among the various regional bodies. The conclusion evaluates the impact of the European human rights systems on the laws and practices of the Member States. It also considers the serious issues that must be addressed in the near future to ensure the continued functioning of the regional systems in the face of expanding membership and growing caselaw.
I. EUROPEAN REGIONAL INSTITUTIONS
Jurisdiction over human rights matters within Europe is conferred on three entities of partially overlapping membership: the Council of Europe, the European Union (EU) and the OSCE. None of them is concerned exclusively with human rights, but each one considers the topic essential to achieving its objectives.
A. The Council of Europe
A little over 50 years ago, 10 northern and western European countries (3) created the Council of Europe, the first post-war European regional organization. Europe had been the theater of the greatest atrocities of the Second World War and felt compelled to press for international human rights guarantees as part of its reconstruction. Faith in western European traditions of democracy, the rule of law and individual rights inspired belief that a regional system could be successful in avoiding future conflict and in stemming post-war revolutionary impulses backed by the Soviet Union. …