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

• Author: Corell, Hans

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...