Reforming the ECtHR: The Impacts of Protocols 15 and 16 to the ECHR

Abstract

Reform has long been a hallmark both of the European Court of Human Rights (ECtHR) and of the Convention itself. In recent years, the trend of steady, incremental reforms has given way to a near-constant cycle of reflections and reform initiatives, driven by the agendas of the High Level meetings at Interlaken (2010), Izmir (2011) and Brighton (2012); a process which has now shifted to a broader effort to secure the ECtHR’s longer-term future. When the Brighton Declaration was adopted in 2012, the challenge of rebalancing the Court’s docket was addressed against a background of growing political unease at the ECtHR’s approaches to the principles of subsidiarity and margin of appreciation among certain Contracting Parties – tensions regularly amplified by the press. It was against this thematic background of backlog and backlash that a programme of reform was agreed at the Brighton Conference.

This paper traces subsequent developments in the reform agenda of the ECtHR, focusing on the impacts of specific reforms agreed during the Brighton process, to be implemented via Protocols 15 and 16 to the ECHR. Section II examines the adoption of the Brighton Declaration, in the light of the intensifying backlash against the Convention system. Sections III and IV examine the impacts of Protocols 15 and 16 to the ECHR, which have resulted from the Brighton reform process, and which are currently open for signature. Analysis of these developments illustrates that the Court itself has been demonstrably willing to engage in the contested public and political arenas on issues relating to reform, and has proven receptive to political signals for reform, even prior to the entries into force of Protocols 15 and 16. In section V, the paper reflects on the varying success of these reform initiatives and on future reform directions.

Keywords: European Court of Human Rights; ECtHR; reform; Brighton Declaration; Protocol 15 ECHR; Protocol 16 ECHR