Strasbourg in the primordial soup
15 February 2012
This may of course have something to do with the Court’s jurisdictional basis, whose proper name is the Convention for the Protection of Human Rights and Fundamental Freedoms. Be that as it may, over the years the Court has become increasingly inclined to describe so many rules, principles, aspects of people’s relationships with each other and sundry other understandings and agreements of civil society as “fundamental” that the word has ceased to resonate with its original meaning as basic, essential, primary, central, or even foundational.
Here are a few examples picked entirely at random:
the right of a detainee to have access to legal advice is a fundamental safeguard against ill-treatment (Salduz v Turkey )
in the Convention system, the prohibition against the use of evidence obtained by torture is fundamental ….Few international norms relating to the right to a trial are more fundamental than the exclusion of evidence obtained by torture.(Abu Qatada v United Kingdom)
Article 3 (art. 3) enshrines one of the most fundamental values of democratic society… liberty of the person is a fundamental right guaranteed by Article 5 (art. 5)….The assessment of whether the impugned measure was necessary in a democratic society is to be made with regard to the fundamental principles established in the Court’s case-law (A.A. v United Kingdom )
Democracy constitutes a fundamental element of the “European public order”, and the rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law … prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention (Frodl v Austria)
Article 2, which protects the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention. ….[the Court’s] non-pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right …it ill suits the respondent Government to argue, as they have, that their inability to secure respect for all fundamental rights [in Iraq], gave them the right not to respect any at all.
The French equivalent, “fondamental/e”, is used with equal abandon –
le droit de vote est un droit fondamental pour la démocratie (Hirst c Royaume-Uni)
inégalité de traitement dans la jouissance du droit en cause constitue un aspect fondamental du litige (Chassagnou et autres c. France)
And so on, et cetera. But it seems at last that the Court has become weary of the fundamental nature of all things, or at least it finds that its constant invocation of the word has leached it of all significance, so it has grasped for a new way of underlining the primacy of its concerns in a recent judgment concerning challenges under Articles 2 and 8 to the construction and operation of two liquefied natural gas terminals on sites at Milford Haven harbour (see David Hart’s post). Here it observes, somewhat uncharacteristically, that
It is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. 
Any dictionary will show the same set of synonyms for “primordial” as are displayed for “fundamental”, including qualities such as “basic”, “elemental”, “primal”, “primary”, “original” and of course “fundamental” itself. But interestingly (or perhaps worryingly, in terms of where Strasbourg thinks it is coming from) the concepts of “prehistory” and “primitivism” crop up as well. And then, no doubt to the delight of Strasbourg sceptics, not far down the list are the following definitions of “primordial”:
age-old, ancient, antiquated, antique, archaic, hoary, obsolete, old, old-fashioned, passé, primeval, primitive, primordial , timeworn, venerable
Is the Court really telling us that its system of safeguarding rights must be subsidiary to national systems because, in fact, the Convention system is beginning to creak with age? Without staring too far into the entrails of this declaration, we might register the significance of this choice of vocabulary and ask ourselves whether the Court is beginning to recognise that national measures for protecting rights might be better adjusted to the 21st Century than those set out in the 1950 Convention.
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