Guest Post: Back to Square One after Sixty Years? The Tory Attack on the European Human Rights System

by Başak Çalı

[Başak Çalı is Associate Professor of International Law at Koç University Law School, Turkey, and a member of the Executive Board of the European Society of International Law]

We, in the ‘from Reykjavik to Vladivostok’ Europe, have grown accustomed to being proud of the European Human Rights System in the last forty or so years. We teach courses on European Human Rights Law that distill over ten thousand European Court of Human Rights judgments. We start our lectures on European Human Rights Law by pointing out that Europe, despite all its flaws, has the most effective regional system. We note that the European Court of Human Rights has been cited by the US Supreme Court.  We celebrate how the effective rights doctrine has recognised and empowered Irish catholic women trying to divorce, Cypriot gay men wishing to walk safely on the streets, Kurdish mothers looking for their disappeared sons, Bulgarian rape victims, Azeri journalists, British children wrongly placed in care and more, so many more. We underline the importance of the guidance that the European Court of Human Rights has provided to domestic judges, prosecutors, law enforcement agencies and legislators on how to take into account human rights when doing their respective jobs. We also salute the fact that the European Human Rights System has brought those us of who live between Reykjavik and Vladivostok together in a recognition of our common humanity, its frailty and our desire for a common dialogue on human rights regardless of our jurisdictional differences. That is why a judge in Diyarbakır, Turkey has given some thought to Mr. McCann and the British military operation in Gibraltar in 1988. Why a judge in Scotland has asked herself what does the case of Salduz mean for her to respect fair trial rights.  We also spend long hours in classrooms, courtrooms and parliaments discussing whether the European Court of Human Rights got the ‘margin of appreciation’ right this time.

Now all that celebration and all the hard and painstakingly incremental gains of the European Human Rights System, a system based on solidarity to reach the common purpose of the promotion of human rights of all, is under serious threat. Unlike the debates that have ensued in the last ten years, the danger is not the Court’s famed gigantic case-load (as has been captured in the cliche of the ‘victim of its own success’) or the slow implementation of its judgments by some of the worst offenders. One political group in one country is out to shake the very foundations of the European Human Rights System.

Over the course of the last four years, the British Conservative Party (part of the government coalition with the Liberal Democrat Party) has used every opportunity to insist that an institution that is above and beyond forty seven states emitting collective interpretations of human rights which are then collectively enforced by its member states is no longer the right model for the protection of human rights in Europe – and perhaps anywhere else in the world. This insistence is now part of the manifesto of the Conservative Party as it approaches elections in May 2015. The Tories are marching under a banner of denunciating the European Convention on Human Rights.

Granted, they may not win the elections. This foundational attack may only end up attracting a long list of PhD theses. The attack, however, is already gaining traction in other corners. The Swiss National People’s Party (infamous for winning a referendum in 2009 that banned minaret construction in Switzerland – a country with four minarets) is already on the case too, discussing the termination of the Convention in the Swiss Parliament. Big countries with the highest number of violations are quietly waiting for the Tories to do the job so that they may soon exclaim: ‘well, as Britain says..’. An odd coalition of rights nationalism is emerging across Europe.

The model proposed by the British Tories is not original. It is what we may term a pre-international human rights model. It asserts that power to decide what rights are and who has them should be returned to the people and to the parliament who speaks for them. This model is pre-human rights for two reasons. First, rights are deeply tied into the institution of citizenship and membership to human kind does not bear any significance in defining the scope and grounds for legitimate restriction of rights; citizens have rights because of their common membership to the body politic. Second, the boundaries of rights are to be determined by the legislature and not by judicial interpretation. This is because the citizens as a collective also have ‘rights’ speaking through the voice of the legislature, which in turn need to be respected by judges interpreting individual cases.  As the British Conservative Party Strategy Paper of 3 October 2014 concedes, there is also something that is called ‘real human rights abuses’and ‘political persecution’. These, of course, only take place in far away lands (the old British colonies, perhaps) — not in good old Blighty.

These propositions are attacks against the very heart of the European Human Rights System. Against the model that our forebears put in place incrementally over time. From its early days, the European Court of Human Rights and the former Commission insisted that human rights are universal and not locked into the privileges of citizenship. This is foundational to all human rights law. The whole purpose of human rights law is lost when it is packaged as rights of deserving citizens. The propositions also undermine the whole purpose of institutions of human rights law, which is to peek over the shoulders of sovereign states. The very weak enforcement powers – which never get accurately reported by the Tories or the British tabloid press – of the European Court of Human Rights means that the Court cannot overrule or quash legislation or domestic court judgments. Finally, the election manifesto is an attack against the spirit of solidarity and of dialogical learning that has been promoted by the European Human Rights System. On the very contrary, Tories want to promote British human rights for British people, carefully designated by a British parliament and scrutinised by British judges. The irony of the very term ‘British human rights’ is lost on the Tories.

The core claim behind the Tory vision to travel back to the 1950s is that the European Court of Human Rights has gone too far.  It has delivered too many judgments against the United Kingdom, interfering with who they deport and where, what laws they revise and when. Whilst the Germans, and the Finns and the Austrians – even the Turks – want to talk about why they disagree with this or that judgment of the European Court of Human Rights, the Tories want to abandon ship. They clearly feel that the cost of standing side by side with more than 700 million Europeans to be part of a collective dialogue on the interpretation of human rights is too high and brings no obvious electoral benefit. This is why we are back to square one, and it hurts.

11 Responses

  1. Sad to see this development. In the United States a small minority of radical revisionists want to destroy the efficacy of treaties and customary international law as law of the United States, in opposition to the part of the text of the Constitution, nearly unanimous views of the Founders and Framers and to the overwhelming recognitions of federal courts (including the U.S. Supreme Court) for the first part of our history up to at least the mid-1980s with respect to customary international law and up to the turn of the century with respect to treaties. Now two of the radical revisionists, with others, will control the restatement of the Restatement (Third) of the Foreign Relations Law of the United States [to, no doubt, “restate” minority preferences], and one had written that the customary international law that he opposed was human rights law and the prohibition of genocide and the other had come out in favor of the torture of other human beings prior to the Bush-Cheney era. They failed in the S.Ct.’s Sosa case regarding customary international law, but the Chief Justice provided them some comfort in Medellin.
    The ideologic attack on human rights law continues.

  2. Yes I sent an objection to ALI’s President precisely because of the concerns you highlighted. It’s a shame and a cynical game of controlling the Restatement in order to revise the past to a narrative. Reminds me of Hannah Arendt’s Instrumentalization of everything in the interest of the state.

  3. The law professor from Turkey thinks that sixty years of work in human rights law are going into the trashcan just because the British Tories have the temerity to doubt some of ECHR’s rulings. He might consider that the Brits have been working on human rights for much longer than sixty years — since the signing of the Magna Carta in 1215 AD. What sort of “rights” existed in Turkey in those days?

    History is an important consideration because, as the Conservatives’ Paper on “Protecting Human Rights in the UK” points out, the British may not have quite the same conception of rights as the ECHR. Are the British able to reason about rights? Apparently not, for two reasons: First, rights are part of membership in human kind and citizenship does not bear any significance in defining the scope and grounds for legitimate restriction of rights. Second, the boundaries of rights are to be determined by judicial interpretation and not by a legislature. That is how Professor Çali sees it.

    I don’t think the barons who compelled John to sign the Charter thought that way. They merely wanted to re-invoke the neglected Charter of Liberties, and be sure that the supposed liberties really existed and applied to them specifically; they were not thinking of “human kind”. John certainly had the Pope on his side. In return for King John’s later submission to his papal and universal authority, Innocent III declared Magna Carta annulled, though many barons did not accept this action.

    Even today most people in Britain consider themselves British and not simply human kind. Therefore, they claim their own ideas of rights. A conception of “human” rights does not come into play unless a case involves people who are not citizens. Why should it, unless all nations are to be subsumed into one vast class of “humanity”? Apparently the judges of ECHR are to be the new papacy. But why do Brits or American have to see things Professor Çali’s way?

  4. As it happens, my direct ancestors signed the Magna Carta (facially to reassure the rights of persons of their stature and not all English persons), but up the line, four came over with the Mayflower and several were part of the new colony, later several also fought the British during our American Revolution — much in the name of “rights of man” and even “human rights” was said at the time and during formation of our U.S. Constitution. Some fought with the United States during the U.S. Civil War — when Lincoln and others referred to “human rights,” etc.
    There is a rich history of references to “human rights” in U.S. federal cases since the dawn of the United States. That’s partly why the radical revisionists are really anti-Founders, anti-Framers, anti-overwhelming past trends in judicial decision, anti-fundamental American precepts favored by many since the dawn of the United States.

  5. Well said Jordan. Of course what the Brits did in Kenya at the time of the Mau Mau Rebellion says an awful lot about the willingness to derogate from elemental human rights there so that a little constraint like the ECHR might not be a bad thing. See Caroline Elkins, Harvard historian, Pulitzer Prize winning author, chair of the African studies department at Harvard, and an instructor at Harvard Extension School. Her book, Imperial Reckoning: The Untold Story of Britain’s Gulag.

  6. Hi Edward,

    I’m a little confused by your your attack on the contributor’s nationality.

    The fact that the contributor is from Turkey is neither here nor there. The contribution is about the challenges faced by the ECHR. Is the imputation that the contributor’s nationality has clouded his viewpoint? That conclusion just isn’t supported by what is written above. Neither is the implicit assertion that this is a ‘British vs Turkish’ debate.

  7. Section I, Article 10 of the European Convention on Human Rights provides for “Freedom of Expression”:

    “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

    At the same time Turkey is described as the “world’s biggest prison” for the media. See below:

    Now I should observe that ECHR provides for certain limits on freedom of expression:

    “This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises… The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties … ”

    The exceptions are enumerated:

    “… the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

    We cannot say that Turkey is necessarily violating ECHR. Rather Turkey allows the right within certain boundaries and in freedom of expression they are exceptionally narrow. It seems reasonable to explain this by the fact that Turkey is an Islamist country and this is the way the situation is in such countries. If we want to understand the boundaries placed on certain rights we have to understand the surrounding culture. So there is nothing that the Conservatives are arguing that Turkey is not doing in blatant terms. They speak of “mission creep”, meaning that clauses are interpreted more expansively than was originally supposed. Are we to suppose that ECHR can determine the meaning of clauses independently of social and cultural context, as if their interpretations were like mathematical logic? When the people consented to the rights doctrine they had certain restrictions in mind which they did not state. It is trickery to say then that the restrictions do not mean anything, especially since the British people’s conception of rights existed long before the ECHR.

    As for Professor Çali’s nationality — I should think the situation in Turkey with regard to freedom of expression would make him a bit cautious before embarking on his rant.

  8. Stephen P, I think your confusion about the attack on the contributor’s nationality should now be cleared up – it’s simply casual racism, with a nice dash of assumption over the contributor’s gender and nationality (inability to google?) thrown in for good mix.

  9. Pierre T, did you notice that every judge on ECHR is from a European country?

  10. I think the main point of the Conservatives’ revolt is that the ECHR isn’t fostering “human rights” sui generis, but a form of liberal-elite wish-list pseudo-human rights. So the author’s mockery that the Brits want British human rights (how silly!) but that *we* are interested in the pure stuff, the real deal, the non-contingent and universally true–well, that mockery is pretty sadly misplaced when you consider how out of touch with most Europeans the ECHR is, how controversial its decisions are, and how the “European” in EConvHR itself doesn’t exactly speak to universality.

    The rest of this article is a bit laughable. Long wait lines as a sign of success? Tell that to people queuing at a bureaucrat’s window. The very opening phrase, including “Vladivostok”, one of the most corruption-ridden cities in one of the most corrupt countries, doesn’t exactly instill confidence that the participants in this exercise are going to have any special supererogatory power to rise above the contingent. It’s also amusing to hear how “long” and “arduous” the ascent of the ECHR has been, as if it compares in any way with the work that has already been done to, you know, actually advance political freedom in practice and theory, from 1215 to 1550 to 1688 to 1776 to 1789.

    By the way, to suppose you can inform a British person that there are human rights that are not contingent upon citizenship is enormously insulting. The ECHR did not invent such a concept. The Brits know this because, second only to the Spanish late scholastics, the Brits have been the most involved in the creation and elucidation of the idea.

    For which they would appreciate your thanks. As soon as you stop trying to tell them that you’ve brought their idea to culmination with your particular elitist-branded version of “universal” human rights.

    PS: oh, and I almost forgot. Thanks, commenter Pierre T, for the generous contribution to the discussion of casually throwing in an accusation of casual racism. Again, there’s like no way universalization can be that hard! I’m super-optimistic that everyone here and on the ECHR will manage to not just blindly reflect a tacky late-20th century politically correct navel-gazing leftism!

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