Legal Diplomacy
The Double Challenge of the Strasbourg Institutions
For the Convention to be effective, at least ten member states had to ratify. Britain was the fi rst state to ratify in March 1951, followed by Norway, Sweden, and the Federal Republic of Germany in 1952.
The Convention entered into force in 1953 after having received six more ratifications from smaller European countries. In light of the many compromises included in the final text, the decisive point was then, in reality, whether the member states would accept the two central optional clauses: the right to individual petition and the jurisdiction of the Court. For the procedure of individual petition to be effective, the Convention required six acceptances: Sweden was the first country to accept in 1952, and was followed by Ireland and Denmark a year later. In 1955, Iceland, the Federal Republic of Germany, and Belgium also accepted the right, and the procedure entered into force in respect to these six countries. However, accepting the compulsory jurisdiction of the Court was a more drawn-out affair. In 1953, Ireland and Denmark were the fi rst to accept the jurisdiction of the Court, followed by the Netherlands in 1954. In 1955, Belgium and the Federal Republic of Germany also took this step and were followed in 1958 by Luxembourg, Austria, and Iceland. Having then received the necessary eight acceptances, the Court was competent by September 1958, yet was ready to sit only in January 1959 after the election of the judges had taken place.
What is apparent from this overview of the fi rst countries to accept the system is the striking absence of three out of the four major European powers. Although Germany, for obvious reasons, was eager to be included, neither France, the United Kingdom nor Italy had at this point accepted either of the two key optional clauses – and this, regardless of the fact that British, French and Italian actors – on the government level as well as in the expert commissions – had been the most infl uential participants in the negotiations.
Nevertheless, for some rather peculiar legal reasons, this did not completely sideline the big countries. According to the Convention, any country that was a member state to the Council of Europe had the right to have a judge on the EHRC bench, whilst the ratifi cation of the Convention was a condition for being represented at the Commission. This meant, for example, that France and Britain were represented at the Court – in fact, they held the presidency in turn during the fi rst decade – but only Britain had a Commissioner. In 1966, Britain did eventually accept the jurisdiction of the Court and individual petition for a test period. France, however, ratified the Convention only in 1974, with a safe distance from the war in Algeria, and accepted the right to individual petition when Mitterrand was elected President in 1981. What can be deduced is that the challenge facing the ECHR system in its early years of operation was a double one, concerning issues of both building legitimacy, vis-à-vis the contracting States, and providing justice to the many individuals who sought recourse before the Strasbourg institutions. The absence of the major powers in respect to the most central mechanisms of the Conventionwas obviously a serious problem in both regards. The functionality and legitimacy of the system depended, at the end of the day, upon individual petition as well as the development of a reasonable jurisprudence in the eyes of the member states.
It is in this regard important to note that the early human rights system in Strasbourg was very far from the professionalised and full-time human rights machinery of the post-Protocol II era, currently working out of a steel-andglass palace on the banks of the river Ill. In the 1950s and 1960s, the premises were cramped and the judges worked part-time, remunerated on a daily basis. In fact, they met only sporadically, and, for a period during the 1960s, they met about once a year and only because the rules required them to do so. The same was true of the Commission, although it played a more active role due to its task as a screening body for the applications received. A brief survey of the actual applications admitted to the two bodies reveals a picture of a set of institutions having, at best, a very slow start: In the 1950s, only five applications were admitted and only 54 throughout the 1960s. Of these, only a marginal number actually ended up as judgements. As concerns the Court, it delivered only ten judgements during its fi rst ten years of operation, in which only a handful found violations of the Convention. In explaining this situation, it is generally suggested in legal literature that the Commission – and not the Court – was the key player during the early period, and that this was due to the particularities of the ECHR screening procedures leaving the Commission to have a first say on the applications. This explanation of the early institutional dynamics, however, overlooks the fact that the omnipresence of the Commission was, in part, also the product of the institutional frictions of the dual system of a Court and a Commission, as well as the political conditions surrounding these emerging institutions more generally.
It appears from interviews conducted for this research that the Commission, in fact, worked deliberately to carve out its role. According to one of the first civil servants employed at the ECHR, the Commission did, in fact, ‘fermé le robinet’, that is, it cut off the fl ow of cases to the Court for some six years during the 1960s as a consequence of ‘une affaire d’amour propre’ between the two organs: one in robes with the power to issue legally binding decisions and with well-paid judges and, the other, in civilian attire theoretically only issuing decisions to be given effect by the Committee of Ministers. According to the same source, as a response the Court spent most of its time revisiting its Statute with the objective of enhancing its powers, by seeking, for example, to obtain consultative prejudicial competence. A number of judges even launched a critique of the Commission in professional journals. Such an understanding of the institutional frictions might be somewhat exaggerated, but the basic point is supported by data on the actual flow of cases. After the Court had been called on in the two cases of Lawless and De Becker in the late 1950s, there was a period of five years between 1960 and 1965 when the Court did not receive a single case from the Commission. The situation is captured in an unpublished essay by the Danish judge on the Court, Alf Ross, titled The Unemployed Court.
Considering the available empirical material, there is little doubt that the centrality of the Commission was much more the product of the Commission’s self-initiated strategy of enhancing its power vis-à-vis the Court than simply the inevitable outcome of the provisions of the Convention. The Commission made the most of its powers within the dual structure of the Convention, but it does not appear from the legal provisions that the driver for this positioning was intra-institutional frictions and ultimately concerned the Commission’s objective of developing its own jurisprudence before it eventually allowed for cases to go to the Court. This analysis, however, provides only a partial answer as to what came out of this intra-institutional turf war in terms of human rights law. Surprisingly, a closer look at the initial practices of the Commission strongly indicates that quantitatively the main task of the Commission was, in fact, to reject claims of human rights violations.
It appears that the most significant contribution of the Commission’s early jurisprudence on European human rights concerned the notion of ‘manifestly ill-founded’ claims, that is, the development of a jurisprudence of what are not human rights violations under the ECHR. In plain language, the ‘coup’ orchestrated by the Commission did not imply great breakthroughs as regardsthe protection of human rights in Europe, but rather cemented the institution’s ‘first right to reject’, which consequently kept the Court at bay.
