THE DEVELOPMENT OF INTERNATIONAL LAW BY THE EUROPEAN COURT OF HUMAN RIGHTS (Second Edition) by J. G. Merrills. New York: Manchester University Press, 1993. 265 pp.

Reviewed by Clovis C. Morrisson, Department of Political Science, University of North Texas.
 

Many years ago, when I first read Hersch Lauterpacht’s THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL COURT (1958), I concluded as a political scientist that he had given far too much credit to the Court in its two incarnations for the building of international law. Far too much real international law was then and still is made by dozens of departments of foreign affairs, international organizations and even national courts for the major credit to be given to the "world court." However, the idea behind the book, to chart the themes of international law one could derive from the casework of the Court, was quite excellent.

J. G. Merrills can make a much better case for both the title of his current book and its content. The court created in 1950 by the European Convention on Human Rights and Fundamental Freedoms, perhaps the most important of all the achievements of the Council of Europe, clearly has taken over as the primary developer of European Human Rights Law. (One might, as I do, quibble a bit with finding much, as yet, impact on general international law from the European system, but it is clear that Professor Merrills considers the regional human rights law of European to be properly classifiable as international law. It is a minor point.)

The European system, which has three other bodies in it besides the Court--a Commission, a Committee of Ministers and a very important secretariat--started very slowly. It was not until the mid-1960s that the work of the Commission was really worth reviewing, and not until the late 1970s that the Court began coming into its own. The first edition of Merrills" work, published in 1988, was well-timed, and this update four years later is even more so. By now the activity of the Court has just exploded, and as an institution it has long supplanted the Commission as the major interpreter of the Convention.

This is not a law school casebook nor even an article-by-article treatise on the provisions of the Convention. The author looks for themes in the jurisprudence of the Court and draws his examples from the written opinions of the judges. In this he trusts the writings to reflect faithfully the actual beliefs of the opinion authors, but he also properly warns that majority opinions are usually compromises just as they are in other major high plural-bench courts. Some of these themes are internal--the Court’s view of its relations with the Commission, of its own powers of jurisdiction and of its power to assist the individual applicant in a system that has only recently begun to try to change its access to the Court rules that earlier heard only the State and the Commission. Some of the themes are procedural--how much latitude to give to governments (the principle of "margin of appreciation" and how strictly to interpret the provisions of an international convention that created it. Most of the themes, however, are substantive--judicial attitudes such as activism and self-restraint; political attitudes such as liberal and conservative; and content attitudes such as the balance between human rights and societal order. Merrills shows the connections and the disconnections between these themes.

Much of what the Court has been about during the past thirty years or so is establishing its place in the Convention system. For instance, the Convention initially gave the aggrieved individual no standing to approach the Court, only the Commission. In a series of bold moves, with the impetus coming initially from the Commission, the Court allowed, case by case, a greater actual role for the individual or his attorney. Now, the individual can behave almost like a party before the court in nearly every way except the initial referral of his case to the Court. A Protocol giving full status is now in the works, but the Court did most of this. It used the "effectiveness" principle in this work--that the framers intended to establish an effective tool of international human rights protection, and decisions of the Court ought to give voice to that principle where the Convention is silent. The Court has used the same principle in a number of substantive areas as well. Another "place in the system" string of decisions has to do with the Court’s proper jurisdiction over "friendly settlements" arranged by the Commission and its secretariat. As the ultimate guardian of the Convention’s provisions, the Court has taken the position that it should approve those settlements before striking a case off the lists.

In its interpretation of the Convention generally, especially as to its substantive positions, the Court has gained considerable confidence over the years that it will not tear the Convention system apart if it expands its provisions through its decisions. The general principle of international law that sovereignty-limiting treaties must be interpreted as narrowly as possible in order that states not be held to have given away more than they wanted to in the document has been increasingly overlooked by the Court. Instead of presiding over the demise of the system, the Court has seen the whole operation gain power and strength as well as nearly universal coverage among members of the Council of Europe. All of this is duly noted in the book. In the chapter on ideologies, the author defines the terms he uses very well. Judicial activism and restraint are given quite familiar and time-tested characteristics. Two political terms, "tough conservatism" and "benevolent liberalism" are more the products of the author’s own observations of Court decisions, and I can find no fault in them. He points out that over time the thrust of the work of the Court has tended toward activism and toward benevolent liberalism, but he surrounds these conclusions with ample exceptions and caveats. The particular collection of judges at any time may sway one way or the other on these points, and Merrills cites some subject areas where the judges may be more or less inclined toward a particular view. So is it true with the famous (or infamous, depending on your viewpoint) doctrine of "margin of appreciation,"(the amount of benefit of the doubt accorded the government defendants), which is often the linguistic currency in which both judicial and political attitudes are expressed. While the Commission came close to agreeing in the 1970s to stop using the margin of appreciation altogether, neither it nor the Court has done so. But undeniably, the general thrust over time on the Court is a narrower margin, a greater degree of activism and a generally liberal attitude toward the Convention.

My only contention with the author in this area is that he appears to believe that it is not useful to identify through rigorous research which judge holds which attitudes and how intensely. I believe that a full understanding of the Convention system would require that we see, for instance, that Great Britain produced the Commission’s leading activist of the 1960s and 1970s, Professor J. E. S. Fawcett, as well as one of the Court’s leading restrainers (and politically slightly to the right of Attila the Hun) in Sir Gerald Fitzmaurice. Merrills is right that for many of the judges the evidence is scanty and sometimes contradictory, but I believe that understanding the dynamics of these great ideologies is enhanced by following specific examples of their human defenders.

This is a fine book. It is informative, imaginative in spotting and probing trends, and well-written. It would be useful in political science courses on international or regional human rights protection and on European union. It is well within the grasp of general readers with a thirst for finding out how many humans over time with a zeal to extend human rights protection actually go about that task on a day to day basis. It also could serve fairly well as a supplement to a law school course on international human rights. I hope that Professor Merrills will revise it every half decade or so, as he seems inclined to do, for the subject matter is very dynamic.