Strasbourg in the primordial soup
15 February 2012
There are those who think that the Strasbourg Court sometimes talks through its fundament. Others are of the view that the sun shines out of it.
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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Stephen & Jared are only right up to a point. Yes, the “fundamental” character does apply to the original ECHR Article scenarios (signatory states must not torture people), and yes it can stretch to some wider applications (not deliberately outsourcing torture on our behalf).
But it can become a rhetorical device to duck the need for justification of further extensions which ought to be open to political debate (with equal votes for the “baying” & “unlearned”) rather than reserved for legal experts. Should a court or a Parliament decide whether to allow deportation, on non-torture-related grounds, to a non-signatory that might, in trying the person itself for its own purposes, use some evidence of its own derived from some other country torturing some other person? Isn’t that so far from the original Art3 that its “fundamental” character is no longer decisive, so democracy should be trusted to settle the detailed drawing of the line in these 2nd/3rd-hand extended applications? Isn’t it also a case-study of the folly of trying to build detailed practical real-world rules through a process of deduction from abstract general principles (sometimes it is only when you look at the specifics that you realise the general was an over-simplification)?
Stephen quotes the rise of the Nazis, but is it any more alarmist to warn that tough times make some seek a superficially benign technocratic regime in which lawyers decide ever more of the detail of the law because the voting public cannot be trusted, ending up with a mirror of Iranian-style theocracy – voting penned within boundaries determined by the priesthood/judiciary. We are not there yet, but nor would deporting Abu Qatada put us anywhere near becoming Nazi Germany. Human rights enthusiasts need to be careful to acknowledge the limits of how far “fundamental” legal principles can determine detailed policy questions, or they will only end up helping those who want to throw the Art3 baby out with the Qatada bath-water.
It is a long time since I studied law but is it not case that the Milford Haven harbour case observation is obiter dictum and, while possibly influential in any future similar case, is not actually binding on any subsequent judgments?
Surely what this observation reveals is that the ECHR judges are being worn down by an unremitting campaign of hostility from the likes of the Murdoch media empire and all their collabarators?
I think we should all be calling on the judges to dismiss the ignorant and largely unfounded hysteria from the gutter press and their supporters.
The Court and the judges fulfill a hugely important in safeguarding and preserving the rights and freedoms of all in Europe and it will be a sorry day if we find them retreating in the face of unwarranted negative criticism from national governments and pan-national media empires.
The Court and the judges owe us – the citizens of Europe – their primordial duty of care to protect our fundamental rights and freedoms. They should forget the stupidity and crass ignorance of their unlearned critics.
It is time for the ECHR judges to reassert their courage and conviction on behalf of all of us human beings; they are there for us; not for media barons.
I am following with interest Art* 19 of the disability rights convention! although suffering a brain heamorrhage in 1990* it keeps me ocupied!
It is unclear from the “few examples picked entirely at random” which rights the author considers unworthy of describing as “fundamental”. Is the point of the article that legal advice, democracy, protection from torture and death etc are not fundamental rights or that this question should be left in the hands of national governments and courts? It is almost disrespectfully obvious to point out that if the national governments could manage not to violate what are self-evidently fundamental rights that the Court would not need to intervene. Perhaps criticisms of the Court should focus on where it is failing to do its job instead of where it is succeeding.
The right to legal advice, to life, to vote, and to liberty are all fundamental. I would be very suspicious of anyone who tried to argue otherwise. And yes, prisoners are human and human rights should extend to them too.
Governments have historically played to populist agendas. A baying mob does not usually preoccupy itself with truth, and injustices frequently flow from this. Laws enacted, or government measures, in response to an increasingly shrill and baying mobs are unlikely to be just or compatible with the values of an enlightened liberal democracy.
I believe it would be terrible if Strasbourg’s jurisdiction became subsidiary to national systems of safeguarding human rights. The United Kingdom had no explicit domestic mechanism for protecting human rights prior to the HRA. Plaintiffs had to rely on Strasbourg for protection. Now this government wants to abolish HRA whilst simultaneously wishing to disengage from Strasbourg – all of this during an economic slump when arguably the case for increased protection is strongest (ref Nazi Germany and The Great Depression).
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