Luzius Wildhaber, President of the European Court of Human Rights, Speaks on the Value of Institutions Upholding the Rule of Law
For human rights norms to be perpetuated, they must be upheld, not just by individuals, but also by courts, governments and other institutions, said Luzius Wildhaber, President of the European Court of Human Rights (ECHR) and Dean of the Law Faculty of the University of Basel in Switzerland.
Speaking before students and faculty of The Fletcher School on April 18, Wildhaber said the Court was the one institution established under the aegis of the Council of Europe with a specific mandate to uphold the rights set out in the 1948 Universal Declaration of Human Rights. He said the Court was set up after European states realized it was only possible to uphold the rights of individuals through the collective enforcement of fundamental rights .
“For the first time, citizens were allowed to challenge national decisions within the realm of human rights in an international body,” he said, referring to the change in paradigms from the previous state-centered determination of national law.
The ECHR, Wildhaber said, has evolved through the years from being a mere European institution into a “symbol of ensuing capacity for democracy and rule of law.” Four factors proved to be critical in establishing its credibility, he said.
“First, it was important to show that there was continuity and a coherent development of the Court’s jurisprudence. We had to show that there was equality under the law, and to promote the rule of law in our decisions. We also had to observe the separation of powers,” he said.
In resolving cases, Wildhaber said that a judge should find a way to do so “gradually, experimentally, and inspired by way of the functioning of the Court.”
“The only thing that a judge has is his independence. He must use all his tools—justice, wisdom, fortitude and moderation—in deciding cases,” he said. “The monopolistic causal resolution of problems is unacceptable. A judge should consider all factors.”
A major dilemma that confronted the Court, according to Wildhaber, was whether it should focus on developing European human rights laws or establishing them through the cases that it was deciding.
As with any other court, Wildhaber said that the ECHR, which has 46 judges, is also plagued with a very heavy case load, thus prompting calls for its reform. In 2005, there was a 15 per cent increase in the number of cases it was handling. This translated to some 38,000 applications, mostly from Russia, Turkey, Poland and Romania as the scope of the Court has expanded to Eastern and Central Europe.
“The Court is looking at ways to avoid the clogging of its dockets and maintaining our efficiency. It is an institutional and structural problem of the Court and we are looking for ways to deal with it,” he said.
Wildhaber said that the Court is becoming more efficient, reducing the burden of its heavy case load However, he said the ideal is to enhance the “preparedness” of national courts as well in applying the Convention’s doctrines in a more principled fashion.
During the open forum, Fletcher Professor Michael Glennon asked Wildhaber for his opinion on the ongoing debate between Supreme Court Justices Antonin Scalia and Stephen Breyer over the propriety of citing decisions of foreign courts such as the ECHR whose traditions of interpreting human rights cases differ from the US.
Wildhaber said he does not see any problem with judges citing foreign decisions, as this simply shows ‘judicial activism’ on their part. In fact, he said that the ECHR has also begun citing judgments of the Inter-American Court of Human Rights.
“If you take ideas from someone else, just quote the source,” he said. “Most documents that guarantee human rights are the same. It’s just that the political, cultural, social environments in which they exist are different. If a court is confronted with a problematic issue, it can look for help in books. So when we look at precedents in other jurisdictions, that is not problematic.”