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THE DURHAM RESEARCH POSTGRADUATE CONFERENCE - JULY 2001

Director, Durham University Human Rights Centre
<[email protected]>

The third Durham research Postgraduate Conference was held in Durham on 13-15 July 2001. It followed the pattern of previous conferences. Graduate students prepared papers for presentation before their fellow participants and expert commentators. Following the observations of the commentators, the papers were discussed by the group. A total of 11 papers were delivered by graduate students from eight universities. The Conference was addressed also by Professor Henry Schermers of the University of Leiden, once a member of the European Commission of Human Rights and a leading authority on Community Law. Professor Schermers spoke about the development of the rights in the European Convention on Human Rights by the institutions, mainly the Court. The elaboration of the protected rights by the Court is the best indicator of quite how much States give away when they allow international tribunals with a wide jurisdiction to issue binding judgments against them. It would have been beyond any imagining of the statesmen who ratified the European Convention originally that the Court would find within its spare text such a range of demanding and expensive obligations. Besides his keynote address, Professor Schermers was an active participant in all the sessions and the Law Department is thoroughly indebted to him for the enthusiasm with which he brought his great learning and experience to bear on the proceedings.

Previous Conferences have been restricted to the law of the European Union and the European Community. Once it had been decided to deal this time with human rights, no such limitation was feasible. European Human Rights is a complicated and complex field. It is complicated because of the large number of overlapping sources of law and other normative standards which occupy the field. It is necessary to be aware of universal(ist) standards, as well as the purely regional ones. The legal rules cannot be understood without a knowledge of non-binding instruments. The relationship between the political activities of the Organisation for Co-operation and Security in Europe and the other human rights bodies is inescapable. There are overlaps and, not to put too fine a point on it, judicial competition between the Community and the Council of Europe in the field of human rights. And underpinning all this international activity, human rights ultimately and predominantly is a matter of central concern for national legal orders.

European Human Rights is complex because human rights law is complex. Generalised standards which touch pivotal policies of States and are of vital interest to individuals require interpretative skills of the highest analytical quality and the greatest sensitivity to the context in which the rules are applied to produce convincing judgments. Further, as national experiences have taught us, this process must take into account evidential questions of a particularly testing kind to establish the context by a method which rises above mere assertion. National jurisprudence also demonstrates that courts are prepared to look outside their own legal system to find examples of how other courts have resolved similar issues. At the international level, the Human Rights Committee and the European Court of Human Rights have been adept at extending the protection given by the basic treaties through imaginative techniques of interpretation. In this clutter of sources and amid flexible interpretation, a lot is asked of judges to demonstrate the reasons for their judgments, for them to show that there is a difference between the limits of the judicial function and the unconstrained power of the legislature, even if the line between them is drawn in a different place in different legal systems. It is an important function of academic constitutional scholarship to supplement the judicial process - not simply to show that another decision could have been reached but that it should have been.

The papers at the Conference touched several of these themes. They all aspired to something more than accounts of institutional structures or bodies of caselaw. There was a clearly shared language for consideration of the issues, even if not an identity of endorsement of the outcomes, of the matters discussed. The papers and the subsequent discussion showed the need for collaboration between the various categories of European human rights lawyers and between European human rights lawyers and domestic lawyers. Nobody can do it all. The self-adopted description by the European Court of Human Rights of its role as "subsidiary" in the protection of human rights to the primary role of national legal orders works only when national lawyers and institutions know what is required of them. The same is true for EC lawyers and its institutions. The papers at the Conference indicate that there is a generation of young scholars who can meet the demands of academic research and the interests of the practical world to meet the continuing challenges raised by the human rights project.

Four of the papers which were given at the Conference follow. Each has an introductory summary, which I do not intend to duplicate. All the authors deserve congratulations for bringing their papers to publication. The Durham European Law Institute is grateful to them for the effort they have made, as it is to the other contributors whose papers stimulated much vigorous debate. Finally the Law Department expresses its gratitude to Holly Cullen and Sangeeta Shah, two of our colleagues, who planned, prepared and organised the Conference, to the great benefit and pleasure of those who took part.