The Functional Evolution Of The European Human Rights Protection Institution

Based on the European human rights protection mechanism established in the European Convention on Human Rights,this study examines the jurisprudence legal basis for the development and reform of the mechanism,combining the operation of the mechanism in practice,observes and explores the mechanism of regional human rights protection functional boundaries.This dissertation is divided into three parts:introduction,body and conclusion.The introduction mainly introduces the background of the selected topic,the research status at home and abroad,as well as the logics and research methods of the dissertation.The first chapter discusses the background,reasons and jurisprudence of the human rights protection mechanism of the Convention which is characterized by a"two-track system".Analysis is based on the discussions among contracting parties and convention drafters on the nature of the convention,the establishment of human rights courts and the existence of individual complaints procedure.The structure and implementation procedure of the human rights protection mechanism of the Convention,which is characterized by a 'two-track system'is finally confirmed after many negotiations.Also,the fundamental problem of the 'two track-system'is discussed in this Chapter,which is thatthe quasi-judicial mechanism hinders the implementation of the Convention.The specific problems include complicated procedures,low utilization of human rights courts and human rights diplomacy.The second chapter analyzes the reasons why the human rights protection mechanism in Europe must shift from the 'two-track system' to the 'one-track system' !plus the conditions and legal basis for completing the change.Secondly,it introduces the structure and implementation process of the 'one-track' system.Thirdly,it discusses the significance of the reform of the convention human rights protection mechanism.The third chapter mainly talks about the current situation of the convention institution.Although it has achieved many successes:the development of individual petition system,the enhancement of the ECtHR's authority and gaining a reputation by a series of landmark cases,the institution is also facing some obstacles that are unfavorable to its further development,eg.:the huge case backlog,the low efficient of the Court to deal with applications and the contracting parties' resistance attitudetowards the Court.To solve these problems,the Court has made some changes in its policies,like adjusting the deciding process,introducing the 'pilot judgement'institution and enhancing the implementation system.The fourth chapter focuses on the issue of 'constitutionalization' of the ECtHR.Some scholars and even the judges of the European Court of Human Rights have considered the Court of Human Rights as a 'quasi-constitutional' court or a constitutional court in Europe.This chapter analyzes the source and jurisprudence of this view and to discuss the feasibility of "constitutionalizing" ECtHR from the perspective of law and reality.The fifth chapter discusses the possible choices for the convention system's further reformation.Those substituted developing paths have their own advantages and disadvantages and by far none of them could be testified its eligibility.Considering the feature of the European system,which was built under the background of pan-Europe as a judicial system availabe to individuals,it is challenging to find a feasible way in the short-term to solve all the problems while keeping the characters of the current system.Therfore,the most realistic method is to increase the cooperation between the contracting parties and the Strasbourgh,emphasizing more on the effects of the contracting parties,letting the ECtHR return to the subsidiary position.In the last chapter,the enlightenments of the European system is fully discussed.By using the rights analysis method,the first part of the chapter proves the effectiveness of the European system in protecting the human rights protected by Convention.Secondly,the question of the disstertation that whether the system has reached its functional boundary is answered with a positive opinion.Thirdly,although the European system is special because of its history background,the culture,the legal institution and the other factors in Europe,it still has some enlightenments to other regional or international human rights institutions.Besides,from studying the European system,we can also find some useful measures and suggestions to improve our human rights protection system in China.In conclusion,with the help of the concept of "Pareto Optimality" in economics,it is pointed out that the human rights protection mechanism of the European Convention on Human Rights has reached the so-called 'Pareto Optimality' after it has undergone the reform from the 'two-track system'to the 'one-track system'.The attempt of 'constitutionalization' carried out by the ECtHR may somehow be able to solve the existing efficiency problems of the human rights protection mechanism of the Convention,but it will inevitably reduce the fairness of the individual complainants Therefore,'constitutionalization'is not the 'Pareto optimization' of the convention's human rights protection mechanism.Moreover,the possible resolution for ECtHR's current problem is to seek judicial dialogue with contracting parties to get a win-win outcome.