The domestic ‘ecosystem’ of implementation: how Council of Europe bodies can cultivate compliance partners

The Implementation of judgments of supranational human rights bodies occurs in the porous space between domestic politics and international law. During the implementation process, state and non-state actors at the domestic level interact with each other and with the supranational bodies, and in complex cases this interaction takes multifarious forms of collaboration, contestation and negotiation. This presentation will examine the ‘state of implementation’ within the European Convention on Human Rights system and will discuss the extent of, and reasons for, deficient implementation of judgments.  It will propose, based on evidence from case studies, ways in which supranational bodies can identify and cultivate compliance ‘partners’ at the domestic level.

A critical perspective of the African Court and Commission on Human and Peoples’ Rights in their monitoring, triggering and cajoling the implementation of their decisions.

Drawing on a paper with Sandoval and Leach (JHRP 2020), this presentation explores the roles the African Court and Commission on Human and Peoples’ Rights have played as they have attempted to improve the implementation rate of their decisions. Resource limitations, concerns with interference in their independence by political organs and tensions in relationships have hampered progress.

The transformative vocation of the reparations of the Inter-American Court of Human Rights

In this presentation, the speaker reviews the development of the Court’s jurisprudence on reparations, especially on the guarantee of non-repetition. He will observe the specificities of the matter and will characterize the dimension of the IACtHR’s contribution in this field, perhaps the most important contribution of this International Tribunal on the global comparative level. Based on concrete jurisprudential examples, he explains why the Court’s structural reparations have a transformative vocation. He also presents the Court’s supervision mechanisms that are essential to ensure effective compliance with its judgments.

Taking stock of the role of the Inter-American Court of Human Rights monitoring, triggering and cajoling implementation of its decisions

Low levels of compliance with the recommendations and orders of supranational human rights bodies remains a major challenge for those of us who see international courts as critical protectors of human rights. One key question we face is what role these bodies should play to ensure implementation of their own decisions? While the dynamics of implementation are multi-factored and multi-actored, human rights bodies like the Inter-American Court of Human Rights do more than mere monitoring of orders; rather, they trigger and cajole implementation in different ways (as explored by Sandoval, Leach and Murray, in Monitoring, Cajoling and Promoting Dialogue, JHRP, 2020). Of all international human rights courts, the Inter-American Court of Human Rights has proved to be the most innovative in responding to implementation challenges despite its limited resources. This presentation will explore the strength of its approach, which arguably rests on its ability to use and combine different tools to that end. The presentation will also explore the challenges the Court faces and potential ways to address them.

The reparations regime of the African Court and compliance with Court decisions

On the reparations regime, the presentation will look at the Court’s position on reparations as expressed in many judgments. The presentation will also look at the evolution of the Court’s approach on how it handled the question of reparations – either dealing with reparations in a separate judgment or together with the decision on merits, highlighting the reason for the change in approach and the number of judgments on reparations so far and will also indicate the kind of reparations that the Court has awarded and the tone of the Court’s orders to ensure compliance.
The second section will look at the supervisory mechanisms provided for by the Protocol, as well as mechanisms put in place by the Court itself to monitor compliance with its decisions. The Protocol entrusts the role of ensuring compliance on the Assembly of Heads of State and Government of the African Union, but the Executive Council is mandated to do this on their behalf.

The Execution of the Judgments of the European System

The Committee of Ministers supervises the execution of the judgments of the Court and ensures, that damages awarded by the Court are paid. The Committee also assists the state in question in trying to find suitable measures in order to comply with all other demands made by the Court. The obligation to eliminate the ramifications of the human rights violation to prevent the violation from happening again can be challenging. Changes to the national legislation of the state in question might be necessary, and in that case the execution of the judgment in its entirety will take up quite some time. I will look at the different forms of pressure. The Committee of Ministers can apply multilateral peer-pressure or bilateral pressure from neighbouring states and can also threaten the member state in question with the publication of a list or – ultima ratio – with the exclusion from the Council of Europe.