These capacious interpretations have broadened the scope and reach of international human rights law. But they have also engendered significant compliance challenges. All other things equal, the more expansive and far-reaching remedies a court requires, the greater the likelihood of delay or resistance in implementing its judgments—in terms of political will, capacity, and commitment of resources. The Inter-American Court has by far the most ambitious approach to remedies, often specifying in exquisite detail the measures states must adopt. Governments have responded by implementing the easier and less politically costly remedies, with the result that partial compliance with the Inter-American Court’s judgments is now commonplace.
Human rights courts in Africa are more circumspect, reflecting the fact that these nascent tribunals have fewer government or civil society allies to advocate for compliance with more ambitious remedial orders. In the Mtikila case, for example, the African Court directed Tanzania “to take constitutional, legislative and all other necessary measures within a reasonable time to remedy the violations found by the Court and to inform the Court of the measures taken.” It did not, however, indicate which measures were necessary. A similar approach appears in the 2012 judgment of the ECOWAS Court in Socio-Economic Rights and Accountability Project v. Nigeria, a case involving environment damage by multinational oil companies in the Niger Delta. The Court found Nigeria responsible for failing to regulate the companies that had despoiled the area, but it rejected a demand for U.S. $1 billion as impractical. Instead, the judges ordered the government to “take all measures” to restore the environment, prevent future damage, and hold the perpetrators accountable—without, however, specifying how the government was to achieve these goals.
Expansive legal interpretations and creative remedies are natural outgrowths of maturing human rights systems in which judges regularly apply international law to a diverse array of factual circumstances. Yet as courts have issued more rulings that touch on politically sensitive topics, they have increasingly encountered overt—and occasionally strident—opposition from some states. Adverse reactions include reductions in funding (an ongoing challenge in the Inter-American system); restructuring the court (such as the creation of the EACJ Appellate Division following a controversial 2005 decision); and politicizing judicial appointments. More extreme responses include overt noncompliance to signal a government’s displeasure with specific rulings; unilateral treaty withdrawals (most recently, Venezuela’s 2013 denunciation of the American Convention); threats to create a rival human rights regime (a possibility being explored by several left-leaning South American countries); and even suspending the court and stripping its jurisdiction to hear complaints from private litigants (a rebuke of the SADC Tribunal spearheaded by Zimbabwe in 2011).
What lessons do these developments outside of truemoney database Europe hold for the ECtHR’s long-term future? First, the negative views recently expressed by some parliamentarians, political leaders, and national judges in the Brighton Declaration, in judicial opinions, in public speeches, and in academic writings may signal to the ECtHR the need for caution when expansively interpreting the Convention and fashioning remedies. This is not to suggest that the Court will abandon or significantly narrow the jurisprudential principles that it has so carefully developed. Rather, I foresee that these principles will be supplemented by other nuanced doctrines that enable the ECtHR to fine-tune the deference given to national decision-makers depending upon how faithfully they apply the Convention—as interpreted in Strasbourg—within their respective national legal orders.
Second, ECtHR judgments is in danger of stalling. Over the last few decades, this virtuous circle has created a culture of compliance that views adherence to Strasbourg judgments as the norm and noncompliance as the problematic exception that can rightfully be challenged by other governments and civil society groups. As the Court has become more skilled at identifying systematic human rights violations, however, the delays in compliance by states responsible for those violations have lengthened and are becoming endemic in some countries. In addition to the ongoing harm to the thousands of individuals whose rights continue to be violated, this trend risks generating a vicious circle in which government officials point to public criticisms of the Court and compliance delays in other states to justify noncompliance in their own jurisdictions and to legitimize criticism of those who advocate for adherence to ECtHR rulings.