Enforcing Civil and Political Rights: Lessons from Europe Basak Cali and Anne Koch, The European Court of Human Rights Project, Department of Political Science, University College London International Symposium “Enforcement of ESC Rights Judgments” Bogota, Colombia – 6-7 May 2010

Core argument The enforcement of civil/political and social/ economic rights presents similar challenges.  What lessons can we learn from the European Court of Human Rights? 1.Factors leading to “eventual compliance” 2.Institutional design 3.Perceived costs of compliance

Monitoring mechanisms of the ECtHR (I) The European deliberative compliance model: interplay between a judicial and a political body. Procedural steps: 1. Judgment issued by the ECtHR: (1) declaratory, (2) outlining specific measures, or (3) pilot judgment 2. Request for action plan issued by the Department for the Execution of Judgments 3. Potential deliberation between state, Department for the Execution of Judgments, and Committee of Ministers, with the possibility of input from individual applicants and NGOs 4. Ongoing discussion of compliance process, including issuance of interim resolutions in case of delayed compliance

Monitoring mechanisms of the ECtHR (II) Types of compliance requirements: 1.Payment of compensation  remedy financial and emotional damage 2. Individual measures  recognition of individual applicants’ claims 3. General measures  prevent the recurrence of similar violations

Pros and cons of the deliberative compliance model Advantages 1. Allows for deliberation of context-sensitive measures, and thus for realistic requirements 2. Increased ownership of state authorities due to respect for principle of subsidiarity 3. Recurring discussions keep up compliance pressure Drawbacks 1.Risk that court judgments are watered down in the process of deliberation 2.Significant and wide- spread delays in implementation

Domestic mechanisms of compliance with human rights judgments -Active engagement of NGOs only accepted since Given the lack of formal enforcement mechanisms, public exposure is a crucial tool in inducing compliance -There are no clear regional or thematic compliance patterns in Europe; any compliance- inducing strategy therefore has to take into account specific domestic costs of compliance

Factors influencing compliance decisions 1.Political factors relate to decision-makers’ responsiveness to domestic constituents 2.Institutional factors arise from the ambition to govern effectively 3.Normative factors arise from ideational commitments of decision-makers

Compliance in diverse political contexts The Council of Europe encompasses established democracies (parliamentarian and constitutional), new democracies and transitional states Motivations to comply differ among regime types: spread of human rights / democracy / rule of law (established democracies) versus desire to develop a European identity (transitional states) The domestic leverage of NGOs and the International leverage of the Committee of Ministers differs between regime types

Compliance-inducing strategies for non-governmental actors Addressing decision-makers -Lobbying for institutional monitoring -Campaigning for access of civil society groups to legislative drafting processes and administrative changes -Increasing the information base Addressing the public -Strengthening pro- compliance constituents; setting up compliance coalitions -Organizing citizen protest -Increasing the information base  The choice of any strategy requires a careful mapping of the distribution of compliance costs

Conclusions There is no ‘one-size-fits-all’ approach to compliance! Both regime design and perceived costs of compliance need to be taken into account Courts judgments rarely suffice in securing compliance: compliance-inducing strategies matter Increasing the popularity and support base for an international judicial process is crucial for regional human rights regimes to work

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