23 February 2017 marks the fifty-eight year anniversary of the first session of the European Court of Human Rights. It has dealt with over 20,000 cases and protects over 800 million people. But let’s cut to the burning question on everyone’s mind… why on Earth is it in Strasbourg?
Choosing the Seat
The first session of the European Court of Human Rights ran from 23 to 28 February 1959. A British legal scholar, Lord McNair, who became the first President of the Court, chaired the session on the morning of 23 February. One of the key issues to be decided was where the Court itself was going to be based. Henri Rolin, a Belgian legal practitioner (who later became President of the Court), wanted the Court to sit in Strasbourg.
Why Strasbourg? The Court was free to choose its own location (or ‘seat’). It was thought that placing the Court in Strasbourg might improve relations between France and Germany following World War II. Although there was some concern that Strasbourg might not have all the necessary facilities, including for the press and radio, the Court decided that it didn’t need publicity.
The other options…
A lot of the discussion didn’t focus so much on where the Court should be, but where it shouldn’t be. Rolin had first thought of The Hague in The Netherlands, the seat of the International Court of Justice (ICJ). The ICJ was set up in June 1945 by the Charter of the United Nations to settle legal disputes between states and to give advisory opinions on matters of international law. It is commonly known as the ‘World Court’.
The Hague was rejected as the seat for the European Court of Human Rights partly to avoid implying any ‘ambition or rivalry’ concerning the ICJ, and because the same location might cause confusion between the two courts. The European Court of Human Rights is not a world-wide court: its role is settling disputes under the European Convention on Human Rights, and that only applies to states which are party to it.
Paris was also rejected; Rolin thought it would be ‘deplorable’ for the Court to sit in a large city where it would be ‘submerged in movements of opinion of all kinds’.
Any other business: Advisory Opinions?
It was also discussed at the first session whether the Court should be able to give ‘advisory opinions’ (that is, decisions which do not relate to a specific legal case, and are essentially non-binding opinions, but which can show how the Court interprets laws and assesses legal issues).
The ICJ has given some significant advisory opinions, including on the Construction of a Wall in the Occupied Palestinian Territory and the Legality of the Threat or Use of Nuclear Weapons. There was a worry that at first the Court might not have enough cases to hear, so it might need to be able to give advisory opinions.
Some wondered why parties would want to ask for an opinion, rather than a decision. It was thought that having advisory powers might the undermine Court’s authority and make it unwelcome by some governments. But the power was eventually incorporated into the Convention under Article 47, which says that the Court can give advisory opinions at the request of the Committee of Ministers of the Council of Europe. (The Committee of Ministers is the Council of Europe’s decision-making body. For background on the Council of Europe, see here).
In 2002, an advisory opinion was requested for the first time, but the Court decided that it couldn’t give an opinion because the legal question submitted was one which might have to address in the future in its main judicial function. The Court has since given two advisory opinions, both about selection of its judges. In 2008, it opined that the Parliamentary Assembly of the Council of Europe couldn’t reject the lists of candidates for the post of judge solely because no candidate of an under‑represented sex was on it. The Court’s 2010 advisory opinion said that a list of candidates could be withdrawn, but only before the deadline set for submission of the list to the Assembly.
A new Protocol to the Convention – Protocol 16 – has been opened for signature by states, which would allow the highest courts and tribunals of state parties to the Convention to ask the Court for advisory opinions. As of 23 February 2016, this Protocol isn’t yet in force.
For more information:
- Learn about the Court with our infographic: The European Court of Human Rights Uncovered.
- Read our plain English version of the European Convention on Human Rights.
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