The anti-democratic impulses of the ECHR
The European Court of Human Rights has become a ravening monster overriding the rights of individual states.
In recent years the European Court of Human Rights (ECHR) in Strasbourg has degenerated into a ravening monster that, without the slightest legitimacy, overrules scores of national laws and regulations.
The court has deviated from its original mission – to be an ultimate guarantor of only the most fundamental principles of justice – and has assumed the right to involve itself in national policies in just about every field. This is despite paying lip service to a supposed ‘margin of appreciation’ - making allowances for different national interpretations of the European Convention on Human Rights. With a current waiting list of almost 140,000 cases, the ECHR has in fact become an ordinary court of last instance, which gives plaintiffs a final chance to win their cases by overturning the laws of their own country.
Democratically established asylum and immigration policies; arrangements concerning the freedom of religion and the separation of church and state; rules on police search and interrogation; even the organisation of public education: on all these matters (and many others), European national parliaments – and European populations – now have to bow to the whims of the Strasbourg court.
In a single week in November 2010, the Netherlands was subjected to two examples of the ECHR’s dramatic usurpation of power. On 8 November 2010, when the mayor of Amsterdam, Eberhard van der Laan, decided to evict a group of illegal squatters, the court in The Hague found that this violated the European court’s interpretation of due process. A few days before, the minister of immigration and asylum, Gerd Leers, had begun to carry out the new government’s policy of expelling illegal immigrants when the ECHR informed him that the policy violated the human rights of the illegal immigrants. The planned expulsion was suspended.
Other countries have experienced comparable interference in their national policies. British judges have been prevented from denying convicted criminals the right to vote. Bulgaria was forbidden from expelling an Islamist immigrant who had set up cells of the Muslim Brotherhood because expulsion would damage his ‘family life’. In Italy, public schools were forbidden from hanging crucifixes on the wall because to do so would violate the ‘principle of secularism’.
Founded in 1950 as an ultimate check on the abuse of state power, the ECHR in Strasbourg should not be confused with the EU. Nor has it anything to do with the EU’s Court of Justice, which is based in Luxembourg and which oversees EU member states’ compliance with legislation from Brussels. The ECHR has its own national admissions procedure, again entirely separate from the EU. It currently counts 47 member states (the EU only has 27), including Russia and Turkey. The Netherlands was a founding member, though the Dutch prime minister at the time, Willem Drees, was a convinced opponent.
What Drees had feared about the court soon came true: it quickly broadened the scope of its jurisdiction. Today, there is hardly any field of law that has not been influenced by the ECHR, and hardly a single case is tried in Dutch national courts without reference at some point to the European court’s case law. And if the national courts do not take that case law seriously, plaintiffs can always appeal to Strasbourg.
That the European court does not confine itself to the ‘most fundamental violations of justice’, its original mission, but in fact tests all existing legal and political provisions by its own views, is an inevitable consequence of the vagueness of the very ‘fundamental rights’ that the court was set up to protect. The central fallacy of the court’s establishment was that ‘fundamental human rights’ could be codified so that no case law or interpretation would be needed to decide what they were. But this proved (only too predictably) to be false.
Take as an example the ‘right to life’. Many people would hold that this is among the most fundamental of human rights. But what does it mean in practice? That British police forces should not, as the court ruled in 2007, be allowed to kill members of the Irish Republican Army (IRA) planning an attack? That Bulgaria should not be allowed to expel potential Islamic terrorists, as the court ruled in 2000?
Moreover, in 1998, the ECHR ruled that ‘a positive obligation to protect life’ followed from the ‘right to life’. What might this mean for women who want to have an abortion or for those who want euthanasia? What consequences does it have for access to healthcare and medication? Indeed, when a ‘living instrument’ – which the ECHR declared its bill of rights to be – accepts the ‘right to life’ as a positive obligation to be protected, might certain political measures curtailing the welfare state be construed as a violation of it? Leaving someone to starve or freeze to death on the street without providing a remedy amounts to murder, the court might say.
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Or take the principle of non-discrimination. Again, this is something that sounds ‘fundamental’ and important. But consistent application of this principle could lead to the prohibition of just about anything from hereditary monarchies to the constitutional rule that in order to become American president one has to have been born in the US. Because no two individuals are entirely the same, the principle of non-discrimination is endless in its application (just as ‘equal opportunity’ would theoretically require a ban on private property and the dissolution of families). The prohibition of discrimination in any case inevitably clashes with classic civil liberties such as those of expression, conscience and religion.
However ‘fundamental’ the principles behind these ‘human rights’ may be, in practice their meaning is completely fluid and for that reason should be the subject of political debate. In other words: whoever has the power to define what a fundamental right is to mean in practice has the power to impose his political views on others.
This is evident from the situation in the United States, where judicial appointments to the Supreme Court are in practice political appointments. Through their jurisprudence, these judges may indeed take decisive political decisions in areas such as national security (qualifying practices at Guantanamo Bay as torture), ethics (allowing or prohibiting abortion and euthanasia), criminal justice (capital punishment), immigration (permitting or prohibiting the rejection of asylum seekers), and international law (declaring treaties unconstitutional). American presidents nominate judges with views consistent with their own. The Senate, which must ratify the appointments, can oppose the nomination when the majority has a different political opinion (as happened in 1987 when Ronald Reagan’s candidate was rejected). Americans know exactly where the judges of the Supreme Court stand and weigh their chances to push for certain political changes when a judge is replaced. Democrats are currently hoping that during Barack Obama’s term some Republican judges may be replaced by Democrats.
Now, the larger the juridical scope of an international court, the greater the difficulties: different countries arrange their affairs differently. If the writ of the US Supreme Court also ran in Canada, Mexico, Guatemala and Venezuela, the situation would soon get out of hand. Yet that is precisely the case with the ECHR: in practice, its writ runs in 47 different countries!
What’s more, the powers of the US Supreme Court are always held in check by the legislature, which may provide countervailing legislation if it does not agree with the court’s rulings. That is the idea of constitutional checks and balances: ‘ambition must be made to counteract ambition’, and different bodies of the state must keep one another in check. But nobody in Europe can counteract the ambitions of the ECHR. There is no legislature to respond to any interpretation the court may give to ‘fundamental rights’. Since the European court towers above all state power, no one guards the guardians.
So there are two reasons why it is better to enforce ‘fundamental rights’ at the national rather than the international level: every country can make its own decisions based on its own national culture, and the courts may be restrained by the other state agencies.
It is, however, also an option to constitutionally forbid judges from interfering in some legislative areas. This has been the Dutch approach. Judges in the Netherlands are allowed to review the constitutionality of legislation passed by lower legislative organs, such as municipalities, as well as decisions of the executive, but they can’t review laws passed by the national parliament. The ECHR thus conflicts with the original idea of the Dutch constitution, and has taken the interpretation of vague principles such as ‘right to life’ and ‘discrimination’ from the Dutch parliament and given it to unelected judges from across Europe.
This has not been without consequences. In 2007, for example, the ECHR ruled that the Somali asylum seeker Salah Sheekh could not be expelled from the Netherlands because expulsion would infringe his right not to be tortured. The Dutch government’s agency on immigration had concluded beforehand that Salah Sheekh did not run the risk of torture. Dutch national immigration policy, established after extensive public debate and sanctioned by the democratically elected parliament, has thus been overruled.
The examples are endless, as is the potential contradiction between national preferences and momentary moral whims. Consider the case of Lautsi vs Italy, in which the court initially ruled that crucifixes in Italian public schools were a violation of the fundamental right to ‘freedom of religion’ (the case is currently under appeal). Perhaps we’ll soon have an Islamic interest group that will challenge the French ban on the burqa in Strasbourg by invoking the same right to freedom of religion.
Democracy requires sovereignty because without sovereignty an elected parliament is toothless. By giving sovereignty to the ECHR, a serious derogation of European democracies has taken place. It is one of the principles of the rule of law that properly enacted laws may not be set aside on the basis of some vague set of principles interpreted arbitrarily by a foreign court. Judges come from a national legal community and tradition and derive their authority from it. The Dutch would not accept Flemish judges administering the law in the Netherlands – even though the Flemish share the same language and some of the same history with the Dutch. Why then should the jurisdiction of the ECHR be accepted?
The rule of law and democracy require that the European Court of Human Rights radically changes its outlook. It should dismiss the vast majority of the cases which it adjudicates today as being decidable by national preference – the original but neglected idea behind the ‘margin of appreciation’. It should only assume jurisdiction in examples of extreme abuse, of the kind that took place from 1939 to 1945 (in which case, however, it would probably have been completely powerless).
If the ECHR does not change (and it is unlikely to do so), withdrawal should be seriously considered by the contracting states. The attempt to promote the principles of natural law by means of human rights diplomacy may be laudable, but we should not make the mistake of legally codifying those principles. The inevitable effect is intolerance and oppression of cultural diversity.
Thierry Baudet is a lawyer and historian at the University of Leiden. Visit his website here.