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Dialogue in the European Convention on Human Rights System: inspiration, added-value and means (eu)Version imprimable
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Europe > European Law > ECHR
Extract from the European Journal of Human Rights, March 2015
Author : Lize R. Glas, PhD candidate, Department of International and European Law, Raboud University.
The concept of ‘dialogue’ is often used in relation to the European Convention on Human Rights system, but its added-value or how it can be achieved are rarely made explicit. This article aims to provide clarification about the concept by answering two questions. The first question is why the concept of dialogue, when employed as a normative objective for judicial interaction between the European Court of Human Rights and the courts in the states parties, can be of added-value to the Convention system. It is proposed that the added-value lies in the contribution of the concept to the smooth cooperation between the Court and the domestic courts and the channelling of tension between them away from conflict, towards increasingly balanced decision-making. The second question is by which means the concept can be operationalised. In answer to this question, the article gives different prerequisites, facilitators and instruments for Convention dialogue. The answers to both questions are inspired by how the concept of dialogue has been applied to other legal systems and are grounded in the Convention system’s defining features.
‘Dialogue’ is the new buzzword for the European Convention on Human Rights (Convention; ECHR) system. ‘Dialogue’ has been welcomed and encouraged, as well as commended as ‘valuable’ and ‘more necessary than ever’. With the completion of Protocol 16, coined the ‘Protocol of dialogue’ by the current President of the European Court of Human Rights (Court; ECtHR), the notion seems to be referred to even more frequently.5 Yet although the buzzing has intensified, exactly why dialogue can be of added-value to the Convention system and, more precisely, to the relation between the Court and the authorities in the states parties, is not often shed light on. Nor do the users of the word ‘dialogue’ usually explain how exactly this apparently useful concept can be operationalised in a practical sense.
This article argues that the concept of dialogue can be usefully employed in the Convention system if it is understood as norm for interaction between the European Court and the courts in the states parties. It can thus offer an answer to challenges posed by inter alia the pluralist nature of the Convention system. In developing this normative account for Convention dialogue, inspiration will be drawn from how the concept has been applied in the EU and to transjudicial communication, that is ‘communication among courts – whether national or supranational – across borders’. Additionally, prior to explaining why dialogue can be of added-value to the Convention system, two defining features of that system are identified and cast light on, as these features should be taken into consideration in construing the normative account.
The second aim of this article is to explore how in a more practical sense dialogue can develop in the Convention system. Again, to find inspiration for this it is first explained how dialogue has been made operational with reference to other legal systems. Based on that explanation, the article summarises some possible means for Convention dialogue. With reference to the normative account for Convention dialogue established in the article, it is explained why these means can potentially bring about dialogue in a way that is of use to the system.
The focus is solely on dialogue between the European Court and domestic courts, because ‘the senior courts of the European states’ are the ‘main interlocutors’ of the Court.9 Moreover, experience has proven that domestic courts are both ‘the most important’10 domestic institutions for and have ‘taken the lead’11 in implementing the Convention. Importantly, this article’s perspective is that of the Convention system, meaning that the perspectives of the states and their courts are not specifically considered. Further, the article concentrates on ‘internal’ dialogue between the Court and the courts in the states parties, to the exclusion of any ‘external’ dialogue that may take place between the Court and other international courts.
The article proceeds in four sections. The first outlines the manner in which the notion of dialogue has been developed and applied in other systems. The second works towards creating a normative account for Convention dialogue. These sections therefore concern the question ‘Why dialogue?’ The third analyses means for dialogue as they have been proposed for other systems. Building on in particular the second and third section, the last examines practical means for dialogue in the Convention system. Working from the assumption that the first question can be answered satisfactorily, the last two sections formulate an answer to the question: ‘How can dialogue take place?’