The recent successes of far right parties in Europe, which have benefited from recession protest votes and anti-immigration populism, is indeed something to fear. But it also presents an opportunity to reflect on the importance of international human rights standards.
In the ongoing debate over the role of a European system of human rights law, lip service is often paid to the origins of the European Convention on Human Rights (ECHR) in post-war Europe. The rise of Fascism had killed tens of millions. The Nuremberg trials, an early experiment for international justice, had been a success. A Europe-wide system of rights protection seemed sensible. It still does.
David Maxwell Fyfe, a key British Conservative drafter of the ECHR, said when he was prosecuting at Nuremberg:
… it might be presumptuous of lawyers who did not claim to be more than the cement of society to speculate or even dream of what we wish to see in place of the Nazi spirit, but I give you the faith of a lawyer some things are surely universal: tolerance, decency, kindliness…. When such qualities have been given the chance to flourish in the ground that you have cleared, a great step will have been taken.
Or, as the preamble to the Universal Declaration of Human Rights puts it:
it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.
For those who seek Britain’s complete withdrawal from the ECHR, the regular threat of the far right in Europe should provide food for thought. One of the chief arguments for pulling out of the ECHR is that it has now done its job. The UK, goes the argument, no longer gains national benefit from staying within the system but in return suffers a significant “democratic deficit“. As Daniel Hannan MEP put it last year:
For the country as a whole, however, the balance is surely negative. It’s hardly as though we suffer from a massive breakdown of civic freedoms from which only a foreign court can rescue us. The ECHR degrades our democracy without enhancing our liberty.
Another common criticism is that the European Court of Human Rights spends its time on policing petty violations rather than protecting fundamental rights. As Dominic Raab MP put it in April, we are subject to “arbitrary Strasbourg diktats based on the whims of European judges… rather than a sober reading of the sensible list of core freedoms in the European Convention itself.” Prime Minister David Cameron told the court in January that it “should not act as a small claims court“.
These criticisms are not without merit. States which have agreed to “abide by” the judgments of the Strasbourg Court have every right to monitor its work to ensure it does not, in the (in)famous words of Lord Hoffmann, “aggrandise its jurisdiction“.
But it is important to remember two things. First, the reported overzealousness of the Court is based more on myth than reality. A recent in-depth (and indeed sober) study of the Court’s rulings found that it is very far from the “meddling pseudo-judiciary” painted by its critics. The judges sometimes refer to the “living convention”, which allows them, within the tradition of the common law, to take a dynamic approach to rights. But considering the detail, it is hard to argue against rules which provide increased protections for vulnerable groups such as the victims of rape, domestic violence and human trafficking.
Secondly, and in any event, the issues which the court considers are still well within the spirit of the ECHR which was drafted over 60 years ago. It is somewhat absurd to suggest that the Convention’s drafters, particularly those schooled in common law jurisdictions, expected its interpretation to remain static in the face of immense social change. And those argue that states are now getting more than they agreed to when signing up to the Convention should take a look at the Court’s excellent case law fact sheets. As the late Lord Bingham asked, “Which of these rights… would we wish to discard?” Forced labour and trafficking? Hate speech? Freedom of religion?
Those such as former Bill of Rights Commissioner Michael Pinto-Duschinsky who argue that human rights law should only apply to “real humanitarian abuses or instances of true political oppression” are missing the point, and need to read their history. Fascist governments did not take power over-night. Like Greece’s Golden Dawn and others, they began small, appealing to stability and national pride in unstable economic times, and worked from there.
More importantly, their oppressive, racist policies become widespread due to the gradual erosion of the rule of law. This was just as much about the destruction of what Maxwell-Fyfe referred to as “tolerance, decency [and] kindliness” as it was about the enactment of explicitly racist or authoritarian laws. Indeed, the destruction of tolerance, decency and kindliness as social norms is surely a precondition for the capture by a totalitarian government of previously democratic institutions.
This is not to say that an international system of human rights law will, in and of itself, prevent the rise of the far right. To suggest that it could is to overestimate the power of the legal system to control citizens’ behaviour, and also to provide a fake argument for those who argue that we would be better of without the ECHR. The rule of law, as Lord Bingham argued, also requires support of the legal system – and the decisions of judges – by politicians. As Lord Bingham put it, the rule of law is not “well served by public dispute between two arms of the state”. In this regard, he would probably be somewhat unsettled by the comments of the current Prime Minister that prospect of prisoners being given the vote by European judges makes him feel “physically sick”
Thankfully, the rise of the far right in Greece and other places does not yet herald a new dawn for fascism in Europe. But it should remind us why the international system of human rights was set up in the first place. And of how much success it has had – although by no means alone – in keeping Europe relatively fascist-free for over 60 years. In our unsteady times, the UK’s continuing support of and engagement with the ECHR will not on its own prevent the rise of fascist populism but, in the words of David Maxwell-Fyfe, a great step will have been taken.
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Read more
- A Wake Up call? – Paul Bernal
- How the most English of poems inspired a Scot to champion European Human Rights
- UK vs. Strasbourg: don’t believe the hype – Alice Donald
- An appeasement approach in the European Court of Human Rights? – Professor Helen Fenwick
- I can’t say anything because you’ve brought up… the Holocaust
