Judicial redress: can the European Court of Human Rights set an example?

The 1950 European Convention on Human Rights is based upon the Universal Declaration of Human Rights, which is also the source of inspiration for the International Covenant on Civil and Political Rights and the International Covenant on Economic. Social and Cultural Rights. The substantive law which the European Court applies is, therefore, basically universal human rights law. It is important to note that the provisions of existing human rights instruments are often couched in relatively general terms: the more precise contents of the obligations under a human rights instrument, subject to interpretation by a court, is given through the precedents set by this court. Since the case law of the European Court is generally accessible, it is already setting an example for human rights monitoring: its precedents do influence the way in which human rights obligations are understood around the world.

The procedure developed by the Court is relatively simple. Once you arc acquainted with it, it really poses no major problem. A more sensitive question is acceptance. One must not forget that it may be difficult for a Government to accept a finding by an international court that human rights have been violated. The reaction may be negative and even emotional. In 1983, at the outset of my 11 years as the agent of the Swedish Government before the Court, I heard a Cabinet Minister criticize a judgement of the Court by stating that "a few gentlemen (sic!) in Strasbourg should not tell us what is right or wrong in a procedure which has been in place in our country for mort than 400 years". However, eventually, the understanding of the role of the Court among members of the Government has became greater, with the realization that it is a truly common interest to have a homogenous interpretation and application of international human rights law.

Correspondingly, members of an international court must realize that for the court to be accepted it must have credibility within the States that have accepted its jurisdiction. The fact that the European Court is now permanent demonstrates that its members have established that credibility, developing it into something of a constitutional court lot the Member States of the Council of Europe, greatly contributing to the raising of human rights standards throughout Europe in later years.

Another issue is languages. Each official language used by an international court affects economy of proceedings. Issues before an international human rights court are often very detailed, material can be relatively voluminous and the nomenclature is sometimes a problem. There is a limit to how many official languages can be used. The European Court uses just two, which may be noted as an example.

Since it must be relatively simple for an individual to seize an international human rights court with a complaint, there is a risk that a court of this kind is confronted with a number of matters that are outside its jurisdiction or simply nonsense. Monitoring organs must have the capacity to quickly distinguish between matters that must be dealt with in substance and those that should be dismissed right away. If the organ is overburdened, this will affect its ability; it is fair to say that the institutions trader the European Convention on Human Rights have managed well.

The optimal solution for the protection of human rights worldwide is to have a monitoring organ with universal jurisdiction. This can only be achieved if the control mechanism is global. A court with such jurisdiction is hardly feasible, at least not at present, although the International Court of Justice has, and the future International Criminal Court will have, jurisdiction over certain aspects of the application of human rights standards. Therefore, regional solutions like the European Court of Human Rights is the alternative, although there is the risk that the application of the same norm will be different in different parts of the world, to the detriment of the principle of universality. At the national level, the Supreme Court ascertains that the application of national law is homogenous. A corresponding solution is hardly possible at the international level. Regional instances must have an open mind and readiness to look to the precedents of sister organs and sock guidance from them with respect to the application of the universal norms. The work of the Human Rights Committee, established by the Covenant on Civil and Political Rights, and others with a global mandate can be used by regional judicial organs as guidance for the application of human rights law, even if these do not have the same judicial competence as regional courts.

To become successful, regional organs like the European Court must be composed of persons who have a good understanding of international law, particularly in human rights, and, not least, who have experience of applying law at the national level. In short, they should be persons with practical judicial experience. Only if international monitoring organs comprise persons with these qualifications can they achieve the necessary acceptance and respect at the national level.

To sum up: the European Court of Human Rights can very well be used as an example for monitoring human rights in other regions. In this way, its work also serves to protect human rights in the broader United Nations context.