Why the Court is in Strasbourg – and other things

1 January 2015 by David Hart KC

Like lots of things to do with the ECHR, the idea seems to have been British. As Simpson put it in his magnificent history of the Convention, Human Rights and the End of Empire (OUP, 2001), Our Man (Jebb), in early 1949, appears to have suggested the site of the Council of Europe should be Strasbourg 

not for its architectural or gastronomic qualities, much less for its geese, but because of its symbolic significance for Franco-German reconciliation

Quite obvious, when you think about it. I was spurred into this by my winter festival reading, Neil MacGregor’s Germany.

Strasbourg commands a chapter, Floating City. Floating, because it swapped between Germany and France regularly, with increasing rapidity in the run up to the ECHR in 1950.  Formerly known as Strassburg, it had been emphatically part of the Holy Roman Empire, an Imperial city, a bishopric and German-speaking, until Louis XIV nicked it in 1681 – in war. The French were wise enough to administer it with a light touch – German remaining the predominant language – so it remained nominally French until 1871. Indeed, Goethe (and Metternich) studied there, and Goethe lauded the Gothic mediaeval cathedral (see pics) as reflecting supremely German architecture (Von Deutscher Baukunst) –  which of course it wasn’t, given that Gothic architecture derives from France.

Tables were turned in 1871, when the Prussians repossessed it – in war. It became French in 1919, as a result of war. Back to Germany in 1940, in war – and it is said that in the next 4 years of occupation the Germans achieved what the French had failed to achieve in the previous 20 years – namely the turning of Alsace into Frenchmen. Still German-speaking Frenchmen, at that stage, though since the end of WWII it has become francophone. But any visitor to this day will experience a slightly dizzying feeling of being French in a historically Germanic place – walk around Riquewihr and you will know what I mean.

So Our Man had alighted upon a perfect symbol for European reconciliation. The whole political idea of Europeanness was then (in the late 40’s) linked to human rights, and at the time it was far from clear whether the agreement underpinning the Council of Europe would be the limit of it, or whether the more fundamental federalist movement would prevail – though it is plain from Simpson’s research that the UK was then strongly against anything more deep-seated, so in retrospect federalism involving the UK was extremely unlikely.

But there is an odd irony arising out of Germany and its predecessor. We tend to think these days about historic Germany, as a nation of warlike Prussians swiftly followed by Nazis – and some of the current Euro rhetoric harks back to this. But Germany, as a nation, was of course still young in the late 194os (think formation in 1871), but the Holy Roman Empire which preceded it had been a strange paradigm for what the EU has become. A patchwork of well over a hundred princes, free cities and bishoprics had sovereignty over their own areas. But there was an overriding imperial system, with a parliament of sorts (sitting in the Reichstag) seeking to agree on imperial measures – if not agreed, not enacted. As Joachim Whaley observes

The system of devolved power…that, I think is a deep legacy. It gives one a sense of the German willingness to compromise, their endless patience with negotiations within the European system today.

one might describe the Holy Roman Empire as the triumph of creative fragmentation. The fragments know they belong together, are parts of a unit. The only questions are how tightly they should fit together and who is in charge of the process.

These are not questions the British or French have been good at asking or answering. Thanks to the Holy Roman Empire, the Germans have had a thousand years of practice.

Related posts:

• How the most English of poems inspired a Scot to champion European Human Right
• When is the ECHR going to start watching the EU?
• EU judges oppose accession of EU to ECHR
• Why we would be mad to leave our European Convention on Human Rights