There have been three major conferences over the past two years (at Interlaken, Izmir, and Brighton) to discuss the functioning of the European Court of Human Rights and possibilities for its development and reform. Each provided an opportunity to scrutinise such important components of the Court’s work as the subsidiarity principle, the (quite separate) principle of the margin of appreciation, the prioritisation of Convention articles, admissibility criteria, the idea of “European consensus”, “just satisfaction”, and “significant disadvantage” as well as broader topics such as the future role of the Court and whether a court of individual petition with case law as its only corpus of wisdom is the best way of promoting and protecting human rights in Europe. On each occasion debate was hijacked by the singular topic of reducing the backlog of cases. Wherever one of these components had a bearing on the Court’s overload, discussion was virtually confined to how it could be amended to cut the backlog and bring applications and judgements into balance.
Valuable opportunities for wider ranging debate were lost. And the reason for this reserved approach was that the debate was conducted largely within the legal domain and whilst this is unexceptional given the subject, there is a case for arguing that the ECtHR by its very nature has a wider remit that deserves consideration from other domains such as that of moral theory. This is important not only for the Court as it currently operates, but even more so when its future role and functions are under consideration. Not only is it the case that some of the Court’s present procedures and policies lack moral resolution, but that if its future is not opened to wider debate, there will remain the danger that it may stay locked in a legal framework that will not permit its potential role as a strategic and policy body to be fully canvassed.
The legal and moral domains of human rights rarely come into contact; they inhabit such different worlds that there is almost a sense of embarrassment in inserting the language of “morals” into the company of lawyers. Putting hesitation aside however, the rights theorist will say that there are two rather different ways that morality can contribute to debate about the Court. Whilst the legal domain can adopt the articles of the European Convention as the basis of human rights, the moral domain must look for a more grounded, theoretical basis. For the moralist, the lawyer’s statute rights are human constructs, little more than articulated examples of the sorts of things that might be derived from grounded theory. Rights are not rights just because they appear in statutes (but confusion on this often arises because the two domains use similar language). The foundation of human rights for the moral theorist lies in the idea that we are human beings with moral autonomy, dignity and worth. This assertion (contended of course) embodies the notion that man is a self determining agent capable of pursuing his own ends but always subject to the Kantian categorical imperative that he must always treat others as having their own ends. This entails that we all have responsibilities, something that is largely lost in the mechanics of the Court in which the bottom line is always that the only violation that states are responsible for is a failure to resolve cases domestically. The assertion also entails that, contrary to the logic inherent in the Convention that man has a right to autonomy, he has rights only because he is an autonomous agent. Rights are contingent on autonomy not the other way round. Our understanding of what the Court could be like would be much enhanced therefore by a reconnection with the foundations of rights and a closer consideration of whether an alleged violation damages autonomy, worth and dignity rather than relying on legal precedence. How this can be done is indicated by the second contribution that rights theory can make.
A great deal of the Court’s time is devoted to deciding whether a particular incident – the subject of each case – represents a violation of an article (or articles) of the Convention which is not necessarily the same as the violation of a right in the moral sense. The connection between an alleged violation and a right (statute or moral) varies enormously among the many cases the Court examines and some (Gaygusuz v Austria; Hirst v United Kingdom; Janosevic v Sweden ; Moreno Gomez v Spain ) give the impression that they are a long way removed from the bases of human rights in moral autonomy, worth, and dignity. There appears to have developed in the course of the Court’s history, a “gravity gap” between the moral foundations of rights and the high intentions (and rhetoric) of the Convention’s creators on the one hand and some of the Court’s business on the other.
Help is at hand. The moral domain can provide an analytic device that will bring more rigour to the determination of alleged rights violations and their connection to fundamental human rights. It consists in a deconstruction of the idea of a right into three components: core, content, and manifestation. The core of a human right or its essence constitutes its connection to the foundations of all human rights, autonomy, intrinsic human worth, and dignity. What, for example, is the connection between privacy (for the sake of argument we will stay with “rights” as listed in statute) and autonomy, worth, and dignity? Why, in other words do we call privacy a human right? By the content of a right we mean the (largely empirically derived) types of actions and inactions that violate a right or the political, cultural, and social conditions that predispose to rights violations and a specification of how they affect autonomy, dignity, and worth. A manifestation of a right is the incident or incidents that constitute a case before the Court. As one part of the three – part composition of rights, a manifestation must be identifiable as an example of the content of a right. Acts and omissions therefore are only inadequately identified on an ad hoc basis or by reference to case law. The importance or significance of an alleged rights violation only becomes apparent when it is seen as part of a corpus of components.
The two formulations of “foundations” and “components” provide a means of assessing the work of the Court that is not confined to the legal domain. Subsidiarity, the margin of appreciation, prioritisation and admissibility criteria provide examples. Subsidiarity carries with it all the difficulties inherent in the conflict between universalism and parochialism. The more that the Court is able to push responsibility for judging possible human rights violations back onto states and in the absence of a monitoring role, the more uneven might the level of overall protection of human rights become. The uniformity of protection that it is a part of the Court’s remit to promote would become lumpier when more cases are pushed down to states. Such a situation creates the need for some (albeit approximate) common standard of rights protection across all signatory states. At present the only measures of inequality of protection that the Court has available to it are the frequency of egregious cases from particular states, the volume of cases, and an unwillingness on the part of some states to implement its judgements. It has no external referent of a common standard. Such a standard is available in the moral foundations of human rights. Thus, violations of human rights are things that compromise a human’s moral autonomy by depriving him or her of the conditions necessary for the exercise of moral judgement such as freedom of speech, the threat or use of torture, arbitrary detention, or treatment designed to humiliate, or the deprivation of any sense of identity or the means for independent action. All these appear in some form in human rights statutes but their value in providing a common standard lies not in statute but in their being part of a coherent formulation of the bases of rights.
The margin of appreciation, though quite different from subsidiarity exhibits some similar problems (and some different). It applies at case level (unlike subsidiarity) and is intended to inject some flexibility into the adjudication process to allow for local (state) variations in social, moral, cultural and other traditions as well as differences in local laws. However, it is manifestly frangible and requires some caveats. How much flexibility should be allowed, and in respect of what “local conditions”? At what point does acceptance of local conditions compromise the principles of the Convention and does (or should) the latitude of flexibility increase with the accession of more (and more “different”) countries?
The margin of appreciation goes hand in hand with the idea of a “European consensus”, a general rule for determining the breadth of the margin that should be allowed in any particular case. A broad consensus among states about how a particular matter should be dealt with will yield only a narrow margin of appreciation; a lack of consensus will allow a wider margin. The difficulty with this procedure is that the Court relies in large measure on case law and legal precedent. What it looks for is legal consensus. But this can only evidence past legal activity which is but one of several dimensions on which states may exhibit attitudes to such matters as religious tolerance, freedom of speech, the balance of security against liberty, the nature of private and family life and so on. A legal consensus may disguise wide disparities in the social, religious, political, and other domains. These would be revealed if the core/content/manifestation model were to be applied and in particular the content component which would require the broader context of an alleged violation to be considered.
The Court’s prioritisation of rights is another example of the “enclosed legal box” syndrome. The Priority Policy introduced in 2009 (again as an attempt to reduce the backlog) lacks conceptual coherence. It consists of a reordering of articles that is partly principled, partly organisational and partly utilitarian with no attempt to prioritise rights themselves. Its sole purpose is to shift cases more quickly not to rank rights in some order of importance so that the more serious violations get dealt with before others. A more conceptual or moral approach might use two criteria that could be applied to the Convention articles. The first would be how closely and directly connected an article is to the moral foundations of rights. The second notices that not all the articles as worded connect the individual to his or her rights in the same way. Some, such as the right to life, torture, or arbitrary justice are direct and close. Others such as peaceful assembly, free elections, and education are more tenuous and will generally entail a collective activity and the involvement of an intermediate institution. Furthermore, violations of the latter kind, affecting large numbers of people, are less likely to damage an individual’s worth and dignity. Propositionally, the use of these criteria could reveal three groups of rights in priority order. First would be life, torture, and liberty. Secondly would come family life, freedom of thought and expression, effective remedy, and non discrimination. The third and least important would consist of fair judicial hearings, no post hoc legal proceedings, peaceful assembly, right to marry, possessions, education, and free elections. If rights are to be prioritised at all then this is a more coherent and defensible scheme than the Court’s 2009 Priority Policy.
The admissibility criterion of “significant disadvantage” demonstrates another area of moral confusion in the Court’s policies, that between rights on the one hand and consequence on the other. It assumes that a violation that does not create “significant disadvantage” for an appellant is not worthy of admission by the Court. However, if the importance of rights is to be judged by their consequences, then they have lost their unique moral value; rights and consequence as moral metrics are simply incompatible.
There are other matters, not directly concerned with the workings of the Court but rather within its moral environment, that could benefit from moral elucidation and at the same time provide a more consistent moral framework for its deliberations. These would include how best to deal with conflicts of rights, a more informed (and defensible) way of dealing with conflicts of rights and utility, how to take more seriously the question of duties, and the valuation of rights in the context of other moral values that govern our lives such as justice, truth, and benevolence.
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