The constitutionalisation of international law and the evolving nature of the European Court of Human Rights (ECHR): towards a European constitutional court for human rights?

Xenofontos, Stefanos (2021). The constitutionalisation of international law and the evolving nature of the European Court of Human Rights (ECHR): towards a European constitutional court for human rights? University of Birmingham. Ph.D.

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Abstract

The undertaking of this thesis coincided with the 70th anniversary of the signing of the European Convention on Human Rights (ECHR), and the European Court of Human Rights’ (ECtHR) 60th year of operation, having first been established in 1959. Reaching this milestone is probably the biggest achievement in the history and development of the ECHR system so far. Also, 2019 marked the completion of the Interlaken reform process – the latest stage in the ECtHR’s long history of reform. In highlighting the positive results of the Interlaken process, Council of Europe (CoE) bodies and its member States concluded that the ECtHR is not only functioning well now, but the achievements of the past years have set the foundations to secure the future and long-term effectiveness of the Court.

Contrary to this position, the thesis identifies that a number of underlying challenges hindering the effective functioning of the Court, thus jeopardising its very viability, still remain unresolved and in some cases have even worsened. The thesis thus problematises the past and current dominant approaches to the reform of the ECtHR and argues that the challenges facing the Court have been misframed as primarily institutional, rather than constitutionalist, in nature. As a result, I argue, the decades-long reform process has been incapable of revealing, let alone resolving, the underlying problems of deeper constitutional importance, which form the root cause of any further institutional shortcomings that the Court is faced with. While much of the focus of the reform process has been on containing the ECtHR’s ever-increasing backlog of pending cases through institutional restructuring and other managerial/technical practices, other, normative considerations of greater constitutional importance remain sidelined to a significant extent. Most crucially, though, little consideration has been given to wider, underlying systemic issues concerning, for example, the role and purpose that the ‘new’ (post-1998) Court should serve in an enlarged, diverse Europe and its relationship with national political and legal actors.

In critically analysing recently adopted reform measures, the thesis demonstrates that any attempts to address the above systemic or constitutionalist issues so far have been merely part of a wider plan envisaged by ECHR States to attribute a more focused, albeit diminished, role to the ECtHR so that it would hear fewer cases and consequently pass fewer judgments. Following this reform direction, as my analysis shows, entails serious risks for the future of the Court and the protection of Convention rights in Europe more broadly, many of which are already looming.

As a forward-looking contribution to the reform debate, I argue that the (further) constitutionalisation of the ECtHR, ie its evolution into a European Constitutional Court for human rights, could be an appropriate and viable response to its ongoing fundamental challenges. In this respect, I present a series of reform proposals aiming at creating a sustainable ECtHR and a wider human rights protection system at the international level that will continue to be effective in the future.

Type of Work:

Thesis (Doctorates > Ph.D.)

Award Type:

Doctorates > Ph.D.

Supervisor(s):