109
Second working session — The impact
A remarkable exception is the ECHR. Surely, the ECHR system provides
for private enforcement, but it does so via direct access of individual applicants
to the ECtHR, after the exhaustion of local remedies. National implementa-
tion remains the alpha and omega of international human rights protection,
but the ECHR system does not impose a specific manner of incorporation
and implementation of the Convention rights (
17
), nor does it oblige national
courts to award ECHR rights direct effect. As a consequence, the effect and
enforcement of the ECHR in the various domestic systems varies greatly (
18
).
The defective enforcement of the ECHR and of the decisions of the ECtHR
remains the Achilles’ heel of the ECHR system, and is one of the causes of the
overburdening of the Court’s docket.
Successive declarations at Interlaeken, Izmir and Brighton emphasise that
the long-term effectiveness and indeed survival of the ECHR system depends
on better implementation at national level. A new procedure for dialogue be-
tween national courts and the European Court in the form of an advisory
opinion jurisdiction is now under consideration as part of the broader reflec-
tion on future reforms. Such direct link between the ECJ and the national
courts has proven vital in the context of EU law. Nevertheless, the direct effect
of ECHR rights to improve the enforcement of and compliance with ECHR
rights is not envisaged. The explanation for this choice not to mimick
Van
Gend en Loos
probably lies in the different objectives of the ECHR as an ex-
ternal and subsidiary review mechanism, that does not aim at harmonizing or
developing a self-standing legal order. The ECHR allows for very broad mar-
gins for the Contracting Parties to design their own systems of fundamental
rights protection, which can be almost entirely based on domestic rights and
even on non-judicial means, as long as the objective of respect of the mini-
mum standards is achieved.
These parallels show that the success of
Van Gend en Loos
lies in the unique
institutional and legal context of the ECJ, its direct link with the national
courts through the preliminary reference procedure, and the willingness of
(
17
) In addition, neither Article 13 nor the Convention in general lays down for the Contracting
States any given manner for ensuring within their internal law the effective implementation
of any of the provisions of the Convention,
Swedish Engine Drivers Union v Sweden
, 6
February 1976.
(
18
) Comparative material is available in G. Martinico and O. Pollicino (eds),
The National
Judicial Treatment of the ECHR and EU Laws. A Comparative Constitutional Perspective
(Groningen, Europa Law Publishing, 2010); H. Keller and A. Stone Sweet (eds),
A Europe of
Rights. The Impact of the ECHR on National Legal Systems
(Oxford, OUP, 2008); L. Hammer
and F. Emmert, see note 13.
