The Agonist

In the 1940s and 1950s, Americans could afford to be smug about liberal values when they conversed with Europeans. These days the boot is on the other foot: it is the Europeans who consistently claim the upper liberal hand. Forget, they say, the crude eighteenth-century US Bill of Rights. Who cares about outdated issues like the quartering of soldiers? For that matter, who in 2019 actually wants gun rights under the Second Amendment, or the kind of stubborn adherence to freedom of speech under the First which protects even head-banging hate groups like the KKK? These days, the story goes, Europe has politically come of age. Not only has it seen off the Iron Curtain and the remnants of fascism; it has given the world the up-to-date and adult European Convention on Human Rights, or ECHR for short. Compared to the US Bill of Rights, the ECHR’s fifteen substantive articles afford protections that are wider, with limits better-defined and with an application better suited to handle collectivism, pluralism and mass migration while dealing with problems such as exploitation and hate speech.

The ECHR, which next year will noisily celebrate its 70th birthday, has elevated idle and incoherent political discourse to a fine art, imposed a stifling straitjacket on democracy, and done little if anything to enhance the liberty of Europeans.

There is another view. It is that the ECHR, which next year will noisily celebrate its 70th birthday, has elevated idle and incoherent political discourse to a fine art, imposed a stifling straitjacket on democracy, and done little if anything to enhance the liberty of Europeans.

The problems with the ECHR go back to its origins. Unlike the US Bill of Rights, which from the beginning had an overarching and coherent aim—namely, to recreate on Lockean lines what was seen as the ideal English constitution before its perversion by George III’s heavy-handed interference in the thirteen colonies—the ECHR’s original aim was narrowly negative. It was intended to be, purely and simply, an antidote to Nazism and fascism. Its provisions show this. The Nazis had practiced mass murder, torture and forced labor, so we got the right to life and the prohibition of torture and slavery. Arbitrary arrest, rigged trials and capricious punishments gave us the protections for liberty, fair trials and the principle of nulla poena sine lege; regular house-to-house searches and brutal censorship the right to privacy; persecution of dissidents and Jews the right to freedom of speech and conscience; and so on.

Indeed, we often forget that the ECHR was never originally intended as a constitutional document at all. It was an international treaty; and in its original form, what was envisioned was largely enforcement at the international level. If it was thought a country was in danger of falling back into fascism, the treaty would, peopled believed, provide a lever by which political and diplomatic pressure could be exerted by other states. True, there was even then a Court of Human Rights; but it was essentially a last resort arbitration tribunal to deal with disputes about whether a state was backsliding. Direct complaints by non-state parties against states were permitted only very exceptionally, and only if a state had declared its acceptance of the right of individual petition.

In the early days this was the settled pattern: Ireland and Greece, for example, notoriously used the Convention to make life difficult for Britain over its activities in Northern Ireland and Cyprus. Later, however, once large numbers of states accepted the right of individual petition (it is now universal and indeed compulsory), the tail suddenly began to wag the dog. Vast numbers of individual human rights lawsuits became, as they still are, the norm; state enforcement withered; and the ECHR became constitutionalised. Unfortunately, by then the terms of the relevant rights, intended originally as mere guides for avoiding a recrudescence of fascism, were set in stone, and had to be adapted to purposes they were never intended for.

Whatever its other perceived advantages, this change has not been good for a coherent political discourse.

For one thing, as soon as the ECHR concerned itself with relations between state and subject, there sprang up a need for some philosophical basis for singling out the rights which it protected. Member States, after all, claimed to be democracies (or most of them did): But what if the Human Rights Court condemned an action democratically decided on? It was all very well to say that the ECHR had been forged on the virtuous anvil of anti-fascism, and yet the awkward question remained: What was the vital ingredient in ECHR rights that justified giving someone who complained of a breach of them an end-run around the democratic political process? There was no answer. Books and university courses on human rights began to throw around rosy abstract nouns like dignity, autonomy and self-development. And of course, they still do. In most European universities, a judicious use of such terms in a general essay on human rights will assure a student a comfortable pass. Nevertheless, at bottom all these explanations are question-begging. Why prohibit inhuman and degrading punishment? Because it infringes the victim’s dignity. But other punishments—say, imprisonment—equally infringe dignity: why are they not prohibited? Or is this the wrong kind of dignity? Again, why is liberty protected? To safeguard the victim’s autonomy. But what about other attacks on autonomy, for example, by refusing to provide someone with specialist education he has set his heart on unless he pays a sum he cannot afford? And so on.

Nor is the fundamental philosophical void at the center of the ECHR project, recognised all too rarely, the end of the matter. It gets worse. Once it became permissible to define the aims of the ECHR in imprecise and abstract terms, some way removed from what it actually said, this not only allowed students to get good marks by wallowing in moral vacuousness, but led to the mission creep that has bedeviled European human rights protection (or, depending on your point of view, shown how wonderful it is) for the last forty years or so. Take a few examples. Article 8 of the ECHR protects the privacy of a person’s “private and family life, his home and his correspondence.” In 1992 the Court chose to read this as really being about a “right to establish and develop relationships with other human beings” and duly condemned the search of a lawyer’s business premises, which one would have thought had nothing to do with private life at all. Again, one would not ordinarily associate “private and family life” with not being photographed in public. Yet in 2012 it was said that private life was really about the (much more abstract) concept of “personal development,” and for that reason it might well infringe the private life of a minor German aristocrat if she was denied control over who was allowed to publish press photographs of her in a public place. A third example concerns Article 14, the provision that rights must be afforded without discrimination. This was put in in answer to Nazi racial policies despite being on its face logically unnecessary (if your right is infringed it is infringed, and whether there is or is not discrimination is beside the point). Nevertheless, the human rights lawyers could not bear the idea that an article of the ECHR might be redundant. As a result, it has now irrevocably morphed into a much more general, and very different, principle: namely, that any state activity with even a tenuous relation to a genuine ECHR right must be carried out on a footing of equality. The result is an enormous accretion of power to the human rights lobby; indeed, almost a creation of a democracy-proof right to equality by the back door.

We now have a rule that even if there is no actual right to some benefit or other, if there is a whiff of an ECHR right about it, then government cannot give it to one person but not another, unless it can produce some distinction that convinces a progressive human rights establishment. So in 2008, for example, we learnt that although the state had no duty to allow adoption of children, a lesbian refused permission to adopt when a straight couple would have been able to had had her rights infringed, since the Court of Human Rights did not approve of the idea of distinguishing between different sorts of family. In 2017 things went further: it is now contrary to human rights, no less, to give a plaintiff in a wrongful death suit heart-balm damages if she is a wife but refuse them to a cohabitee.

You might say that these complaints are all very well, but all this is par for the course in human rights and constitutional discourse. In any constitutional system, rights said to be above democratic change are always being extended in unexpected ways. American readers, coming from a jurisdiction where constitutional cases are widely-reported and often refreshingly well-known, may well point out wearily that they have seen it all before. After all, Roe v Wade itself was a case where, for better or worse, the US Supreme Court magicked an abstract right to privacy out of the Bill of Rights and the Fourteenth Amendment, even though neither made any mention of it at all, and then managed to extract from the abstraction an all-too-concrete right to early abortion on demand. But there is a difference. This tendency is much commoner under the ECHR, and for a very simple reason: the people who administer it.

The situation here is very different from constitutional adjudication in the US. In the US such adjudication is handled by an overtly national system of courts, part of the federal government and, despite the ultimate power of judicial review of legislation, subject like all other federal institutions to legislation passed by the elected representatives of the American people. Furthermore, under the US system some sort of political connection is in practice maintained between courts and people. Most educated Americans can name, and express an opinion about, a number of Supreme Court justices. Moreover, the composition of that court is closely watched, and appointees to it are, as anyone watching the news in the last two years will jadedly confirm, closely scrutinized in the Senate. To a lesser extent the same scrutiny also applies to the Circuit Court of Appeals judges, who in practice have the last word in most important constitutional cases. It is true that the federal judges who administer civil liberties cases often do not do what is agreeable to the administration, or necessarily to an overall majority of the American people. But they do at least look at things from a US perspective, and apply values which are established in the US.

None of this applies in the case of the ECHR. The Convention is an international regime, administered by an overtly supranational body, the Council of Europe. The Court of Human Rights, part of the same regime and also administered by the Council of Europe, is equally not a national court—quite deliberately so. Its judges are appointed on a strict representational basis, one coming from each of the 47 Council of Europe members; the court typically sits with about 15. In practice these judges have almost no public exposure (very few Europeans could name a single one). Their appointment, while not shrouded in secrecy, is not regarded as a matter of any public interest or (normally) controversy. Candidates are first nominated by governments, in practice on the advice of the human rights freemasonry of lawyers and academics; they are then elected by a body known as the Parliamentary Assembly. In contrast to the US Senate, this is a worthy but largely colorless grouping of elected politicians from member states of the Council of Europe, nominated by European administrations from anyone willing to volunteer to undertake a short expenses-paid jolly to Strasbourg four times a year in order to transact the formal business of the Council.

All this strongly colors the outlook which characterizes the application of the ECHR. It is true that a few of the judges on the Court have practiced law extensively. Some, including the excellent UK appointee, have even advised governments on how to deal with human rights claims brought against them. But many others are drawn from academia, human rights organizations dealing with anything from refugees to race relations, or similar specialist institutes. This has three consequences.

First, there is a natural bias in favor of judicial activism, and an ever-expanding application of the ECHR in areas where previously it had not been thought relevant. After all, in Europe as in the US, students, and university professors’ human rights groups naturally self-select that way. If you want a job in a human rights organization, or in a university law school teaching people about human rights, you do better saying that you are passionate about human rights and want to extend them as far as possible, rather than admitting to skepticism, however justified, about the whole project.

Secondly, while any civilized person must accept some limits on democracy (torture or genocide, for example, are abuses of state power that most people apart from Alan Dershowitz agree should never be tolerated), members of international organizations and bodies such as university law schools or human rights pressure-groups often have a much more jaundiced view of the democratic process in general. Insofar as it challenges their own extended view of human rights, it worries them. Two years ago the Secretary-General of the Council of Europe, the body responsible for administering the ECHR system, issued an official pamphlet called “State of Democracy, Human Rights and the Rule of Law” and subtitled “Populism – How strong are Europe’s checks and balances?”. In it he regarded it as “extremely worrying” that politicians should be “toughening up their stance on issues such as asylum and law and order” in response to parties that are making gains by “challenging elites and exploiting public anxieties over migration,” and demanded that we “actively resist the drift towards a Europe where populism becomes tolerable and commonplace.” Now these attitudes, which come close to saying that the more important a question of social policy becomes the less appropriate it is to subject it to democratic decision-making, are beginning to rub off on national judiciaries raised in the era of universal human rights. A statement relating to abortion rights from Lady Hale, a senior member of the UK Supreme Court—herself an ex-academic—ought to give anyone pause:

[T]his is not a matter on which the democratic legislature enjoys a unique competence. It is a matter of fundamental human rights on which, difficult though it is, the courts are as well qualified to judge as is the legislature. In fact, in some ways, the courts may be thought better qualified, because they are able to weigh the evidence, the legal materials, and the arguments in a dispassionate manner, without the external pressures to which legislators may be subject.

Thirdly, the result of having a court containing judges coming from jurisdictions from Sweden to Serbia, Poland to Portugal, is a lack of any serious common outlook on matters of social policy. There is also, in many instances, a lack of any serious knowledge of conditions in the country whose laws they are adjudicating on. A judge from Sweden or Norway is unlikely to be very good at understanding attitudes to, say, abortion or euthanasia in a country such as Malta or Poland; so too, a judge from Italy as regards corporal punishment in English homes (a matter of considerable topicality at the moment). In practice this means cases tend to be decided from a point of view of colorless cultural relativism and highly abstract argument. This can matter. In a case in 1982, on whether there should be a human rights bar to corporal punishment in UK state schools, the majority in the Human Rights Court ruled in the affirmative, employing dry reasoning relating to a parent’s right to have his philosophical objections to corporal punishment respected. It was left to a lone British judge to point out in dissent that none of these judges had any real familiarity with Britain, or the faintest idea of how British schools worked in practice.

For all their worrying tendencies, the developments described here might be forgiven if they actually increased the liberty of Europeans. Unfortunately there is little indication that they do. Personal liberty in particular is not well served, with the Court of Human Rights saying in 2012—apparently with a straight face—that it was not actually restricted at all when police surrounded a demonstration and prevented anybody leaving the cordon for seven hours. The Human Rights Court has decided that the ECHR freedom to form trade unions means that it is an infringement of human rights to allow employers to pay workers extra for being non-unionists. And so on. The best test, perhaps, concerns freedom of speech. The Council of Europe has always rather mistrusted the idea of an unbridled press. As early as 1970 its Parliamentary Assembly (see above) said in its Resolution No 428 that the protection of privacy in the ECHR sorely needed to be invoked against private parties and the mass media to prevent the latter getting out of hand. Since then, as witness the case of the German aristocrat already referred to, the tendency has been consistently to advance the cause of privacy in its widest sense over press freedom. Nor is this limited to privacy issues. Last year an Austrian was fined a not inconsiderable amount when he made disparaging remarks about Muhammad in a conservative political meeting (a journalist present had told his employers, who in turn piously told the police). The Human Rights Court interestingly refused to intervene. More important than any right to freedom of expression, it said, was the need to avoid offence; in fact, the Court continued, it was arguable that the state was actually under a duty to limit speech insofar as this was necessary to further mutual tolerance between religions. You can draw your own conclusions.

Of course, this has not stopped some people, even in the US, from fawning over the European human rights establishment. Thus, in 2010, the prestigious Four Freedoms Award was given to the European Court of Human Rights, for its services to the advancement of freedom. Or perhaps, on second thought, this should not surprise us. The organization behind this award is the impeccably liberal Roosevelt Stichtin, named for Franklin Delano Roosevelt. Other honorees have included such left wing luminaries as Ruth Bader Ginsburg, Brazilian president Lula da Silva, European Commission President Jacques Delors. Oh, and Hillary Clinton. As the English expression has it, enough said.