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