6 Colum. J. Eur. L. 55 (2000)
Richard S. Kay. Professor of Law, University of Connecticut.
The territory under the jurisdiction of states adhering to or about to adhere to the European Convention of Human Rights encompasses almost all of Europe. The rapid expansion of the authority of the Convention to the countries of Central and Eastern Europe has properly been noted as a development of historic significance. This is, in large part, because the Convention system has, in the close to fifty years of its existence, enjoyed unparalleled success in enforcing a set of internationally produced standards of government conduct towards individuals. A similar experience in the new regions in which it applies would go a long way towards assuring that those nations will succeed in negotiating the perilous transition from repression and arbitrary government to democracy and the rule of law.
In this paper I propose to examine the character of the system of rules and institutions which have developed under the Convention. More particularly I will discuss the extent to which it makes sense to describe that system as a legal system. This question presupposes that we can identify the defining qualities of a system of law. Any such identification is arbitrary to some degree. The words “law” and “legal” are commonly employed to describe a wide variety of phenomena. The criteria to which I will refer, and on which I will elaborate further below, are therefore, in some measure, stipulations. But I believe they define a distinct category of influences on state behavior that is helpful in understanding that behavior. The presence of such influences may be said to make a system of practices and decisions more “law-like.” I do not think the presence or absence of law is an all or nothing proposition. But there are paradigm cases to which most people would feel comfortable according or denying the title of law. With regard to the behavior of nation-states, I think we can distinguish a more or less mature international legal system from a (mere) treaty arrangement. Put too simply, adherence to the latter is-mainly and most of the time-a matter of political calculation, while adherence to the former is-mainly and most of the time-a matter of felt obligation.
To ask whether the complex of rules, institutions and practices under the Convention are law suggests a venerable and unresolved question: Is international law really”law”?. It is not surprising that progress on this issue has faltered on just the kind of definitional problems noted. One aspect of those difficulties is particularly relevant to my inquiry. That is the precise specification of the content of international law. The problem is usually discussed in gross, as if international law were one big thing. But this seems to me an inevitably futile inquiry. As anyone who has looked at it even casually knows, international law consists of lots of very different things. The various sources of international law-international adjudication, treaties and custom-differ with respect to source, form and content.5 Nor is the law that results from any of those sources in any way uniform. Particularly related to the subject of this paper is the fact that the variety of treaties is vast with respect to subject matter, detail, and institutional apparatus. The question of the extent to which international law is “law,” therefore, can only be reasonably asked about particular instances. It is possible to characterize the activity associated with the European Human Rights Convention as law without making a similar judgment as to “international law” in general.
Before examining the legal quality of the European Human Rights system, it will be useful to sketch very briefly the history and practice under the Convention. The European Convention for the Protection of Human Rights and Fundamental Freedoms was signed in 1950 and came into force upon the ratification of eight parties in 1953. The Convention was inspired by the general revulsion at the abuse of state power in Europe in the inter-war and war periods. In its first article the Convention obliges the parties to “secure to everyone within their jurisdiction” the rights defined in it. The rights referred to, listed in the first part of the Convention and in some of the subsequent protocols, are unremarkable. They are the standard fare of modern liberal constitutions.
The great innovation of the Convention was the establishment of international institutional machinery for the investigation and determination of claims that states had violated the rights provided. Most significantly, the Convention established the European Court of Human Rights and authorized it to issue binding judgments on claimed violations of the treaty. Even more extraordinary, the Convention provided that the institutions so created, including the Court, could act on the initiative of individuals who alleged that they were the victims of state actions infringing the protected rights. While both the jurisdiction of the court and the right of individual petition were originally optional for adhering states, all of the parties have now agreed to them. The recent adherents were required to do so as a condition to admission to the Council of Europe, and such recognition has now become mandatory under a recently adopted protocol to the Convention.