TY - JOUR
T1 - MISSION IMPOSSIBLE? ADDRESSING NON-EXECUTION THROUGH INFRINGEMENT PROCEEDINGS IN THE EUROPEAN COURT OF HUMAN RIGHTS
AU - De Londras, Fiona
AU - Dzehtsiarou, Kanstantsin
N1 - Publisher Copyright:
Copyright © British Institute of International and Comparative Law 2017.
PY - 2017/4/1
Y1 - 2017/4/1
N2 - Non-execution of the judgments of the European Court of Human Rights is a matter of serious concern. In order to address it, the reasons for and dynamics of non-execution need to be fully considered. This paper engages with non-execution by sketching the underpinning issues that help to explain it and, we argue, must shape our responses to it. Through this engagement, we conclude that non-execution is properly understood as a phenomenon that requires political rather than legal responses. This calls into question the usefulness of the infringement proceedings contained in Article 46(4) of the Convention and which it has recently been suggested ought to be embraced in attempts to address non-execution. We argue that, even if the practical difficulties of triggering Article 46(4) proceedings could somehow be overcome, the dynamics of non-execution suggest that such proceedings would be both futile and counterproductive, likely to lead to backlash against the Court and unlikely to improve States' execution of its judgments.
AB - Non-execution of the judgments of the European Court of Human Rights is a matter of serious concern. In order to address it, the reasons for and dynamics of non-execution need to be fully considered. This paper engages with non-execution by sketching the underpinning issues that help to explain it and, we argue, must shape our responses to it. Through this engagement, we conclude that non-execution is properly understood as a phenomenon that requires political rather than legal responses. This calls into question the usefulness of the infringement proceedings contained in Article 46(4) of the Convention and which it has recently been suggested ought to be embraced in attempts to address non-execution. We argue that, even if the practical difficulties of triggering Article 46(4) proceedings could somehow be overcome, the dynamics of non-execution suggest that such proceedings would be both futile and counterproductive, likely to lead to backlash against the Court and unlikely to improve States' execution of its judgments.
KW - European Convention on Human Rights
KW - European Court of Human Rights
KW - execution of judgments
KW - infringement proceedings
KW - law reform
KW - legitimacy
UR - http://www.scopus.com/inward/record.url?scp=85013499525&partnerID=8YFLogxK
U2 - 10.1017/S002058931700001X
DO - 10.1017/S002058931700001X
M3 - Article
SN - 0020-5893
VL - 66
SP - 467
EP - 490
JO - International and Comparative Law Quarterly
JF - International and Comparative Law Quarterly
IS - 2
ER -