Exporting the European Convention on Human Rights by Maria-Louiza Deftou

Abstract

Reviewed by: Exporting the European Convention on Human Rights by Maria-Louiza Deftou Mark Weston Janis (bio) Maria-Louiza Deftou, Exporting the European Convention on Human Rights (Hart 2022), ISBN 9781509952434, 328 pages. Maria-Louiza Deftou, who teaches international law and international human rights law at the School of Law at the National and Kapodistrian University of Athens, Greece, has transformed her [End Page 358] 2019 PhD thesis from the same university into an interesting and promising book, Exporting the European Convention on Human Rights. Its title is a bit misleading in two respects. First, the “export” is really more an export of Strasbourg case law as adjudicated by the European Court of Human Rights (the “Strasbourg Court”) than an export of the European Convention on Human Rights and Fundamental Freedoms (the “Convention”), and, second, only one of the book’s three other legal systems, the Inter-American Court of Human Rights (the “Inter-American Court”) is really an “importer.” Perhaps a more descriptive book title would have been: The Impact of the European Court of Human Rights on Other International Legal Systems. As a PhD thesis, the work is excellent, a detailed review of the interaction among the case law of the Strasbourg Court and the case law of (1) the Court of Justice of the European Union (the “Luxembourg Court”), (2) the Inter-American Court, and (3) the United Nations Human Rights Committee (the “Human Rights Committee”). Well over half of the substantive text is devoted to the Luxembourg Court (pages 19–131), with somewhat less consideration given to the Inter-American Court (pages 135–199), and even less to the Human Rights Committee (pages 200–231). The book shows considerable hard work, describing and analyzing Strasbourg case law that has had an impact on each of the other legal systems. The author shows a nuanced understanding of many judgments and doctrines from all four legal systems, surely an effort worthy of securing a doctorate. However, the more interesting and novel contribution is in the author’s comparison of the impacts of the Strasbourg system, and it is this aspect that might have been considerably expanded. The plainest “export” of the Strasbourg Court has been to the Inter-American Court, modeled on the European human rights system and generally receptive to Strasbourg jurisprudence. As the author aptly remarks “the fruitful interaction between the European and the Inter-American human rights systems offers the most luminous example of a meaningful judicial dialogue.”1 “Certainly, the Inter-American judicial mechanism greatly copied the pioneer human rights protection offered by the [Strasbourg Court], the case law of which constituted the substantial archetype of the Inter-American system.”2 The author considers the contribution of the Strasbourg Court to the Inter-American Court respecting positive obligations,3 subsidiarity and the margin of appreciation,4 provisional measures,5 free speech,6 and migration.7 The author concludes that the Inter-American Court has found the Strasbourg Court to be “its main source of aspiration” and it has “borrowed extensively from its European sibling.”8 The notion of a Strasbourg Court “export” is less clear respecting the other two comparisons. Regarding the Luxembourg Court, the story is more one of “interplay between the two European judicial mechanisms,” than “export.” Much of the work in the two chapters about the [End Page 359] Luxembourg Court have to do with the battle between the two courts for a sort of judicial supremacy in the jurisprudential space of Europe. The author remarks that “conflicts and inconsistencies between the two European jurisdictions have not been sidestepped.”9 Several examples of this competition are explored including the Strasbourg Court’s defense of the right to private life under Article 8 of the European Human Rights Convention and the Luxembourg Court’s Defense of EU Data Protection laws10 and about migration issues.11 The author laments that Luxembourg’s “road to Strasbourg” has proven “to be remarkably long, and inconsistencies in terms of interpretation and standards of protection still stand out, the Luxembourg Court strives to foster ‘peaceful’ coexistence of the [EU] Charter with the Convention and their respective monitoring bodies in the hope of success of the perpetual...