052184617X cambridge university press the european convention on human rights achievements problems and prospects jan 2007

The implications from national compliance to European international relations, including the adjudication of disputes by the European Court of Human Rights are fully explored.. The Eur

THE EUROPEAN CONVENTION

ON HUMAN RIGHTS

This book critically appraises the European Convention on Human Rights as it faces some daunting challenges It argues that the Convention’s core functions have subtly changed, particularly since the ending of the Cold War, and that these are now to articulate an ‘abstract constitutional model’ for the entire continent and to promote con- vergence in the operation of public institutions at every level of governance The implications
from national compliance to European international relations, including the adjudication of disputes by the European Court of Human Rights
are fully explored As the first book-length socio-legal examination of the Convention’s principal achievements and failures, this study not only blends legal and social science scholarship around the theme of constitutionalization, but also offers a coherent set of policy proposals which both address the current case-management crisis and suggest ways forward neglected by recent reforms.

S T E V E N G R E E R is Professor of Human Rights at the School of Law, University of Bristol He has published widely and has also acted as consultant to various organizations, including the Council of Europe.

LAW AND POLICY

This series aims to produce original works which contain a critical analysis of the state

of the law in particular areas of European law and set out different perspectives and suggestions for its future development It also aims to encourage a range of work on law, legal institutions and legal phenomena in Europe, including ‘Law in context’ approaches The titles in the series will be of interest to academics; policymakers; policy formers who are interested in European legal, commercial, and political affairs; practising lawyers including the judiciary; and advanced law students and researchers Joint Editors

Professor Dr Laurence Gormley

Rijksuniversiteit Groningen, The Netherlands

Professor Jo Shaw

University of Edinburgh

Editorial advisory board

Professor Richard Bellamy, University of Reading; Ms Catherine Barnard, University

of Cambridge; Professor Marise Cremona, Queen Mary College, University of London; Professor Alan Dashwood, University of Cambridge; Professor Dr Jacqueline Dutheil

de la Roche`re, Universite´ de Paris II, Director of the Centre de Droit Europe´en, France; Dr Andrew Drzemczewski, Council of Europe, Strasbourg, France; Sir David Edward KCMG, QC, former Judge, Court of Justice of the European Communities, Luxembourg; Professor Dr Walter Baron van Gerven, Emeritus Professor, Leuven & Maastricht and former Advocate General, Court of Justice of the European Communities; Professor Daniel Halberstam, University of Michigan, USA; Professor

Dr Ingolf Pernice, Director of the Walter Hallstein Institut, Humboldt Universita¨t, Berlin; Michel Petite, Director General of the Legal Service, Commission of the European Communities, Bruxelles; Professor Dr Sinisa Rodin, University of Zagreb; Professor Neil Walker, University of Aberdeen and EUI, Fiesole.

Books in the series

EU Enlargement and the Constitutions of Central and Eastern Europe

Anneli Albi

Social Rights and Market Freedom in the European Economic Constitution

A Labour Law Perspective

Cambridge University Press

The Edinburgh Building, Cambridge CB2 8RU, UK

First published in print format

Information on this title: www.cambridge.org/9780521846172

This publication is in copyright Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.

Published in the United States of America by Cambridge University Press, New York www.cambridge.org

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To my parents, Crawford and Marie Greer

Human rights, liberalism and internationalism 2

The mere shadow of a union 8

A not unsatisfactory agreement 17

Assessing national Convention compliance 61

Explaining patterns of Convention violation

Supervising execution of judgments 155

‘Individual’ or ‘constitutional’ justice? 165

Enhancing the Court’s constitutional mission 174

Conclusion 189

4 The Method of Adjudication 193

Introduction 193

Primary constitutional principles 195

Secondary constitutional principles 213

Towards a European Fair Trials Commission 282

The Role of Human Rights Institutions 289

5 Annual National Violation Rates for the Former Communist States

as Found by the European Court of Human Rights:

1999
2005 118

xi

The European Convention on Human Rights, the case law of theStrasbourg institutions and the degree of success with which, for allits problems, the Convention system has met in ensuring respectfor fundamental rights in Council of Europe member states are subjectsthat have attracted much comment and analysis To this great mass

of scholarship, Professor Greer brings a work that stands out in severalrespects This is neither a handbook nor a textbook It is instead

a thoroughgoing argument for the constitutionalization of theConvention and its Court, which the author portrays not as a trans-formation but rather as consolidation This book comes at a particularlycrucial moment for the Convention system While its history is in factone of continuous growth, adaptation and reform, the stakes for Europeand its human rights protection system have never been higher In thematter of fundamental rights, the Strasbourg Court is positioned at theapex of all the national judicial systems in Europe with just oneexception Its ability to function effectively, i.e to rule authoritatively onthe Convention and to administer justice to those who come before it

is vital not just to the Strasbourg strand, but to the whole web ofinstitutions and procedures that uphold and enforce the substance of theConvention throughout the espace juridique europe´en The year 2006 isone of anticipated and much-awaited change, with the expected entryinto force of Protocol No 14, which will effect certain valuableprocedural reforms, giving the Court some additional breathing space.But the reflection process continues, steered by the Committee of WisePersons, an eminent and expert group tasked with mapping the longerroad to viability and effectiveness in the years ahead Professor Greer’sarguments and proposals will surely command much attention fromall of the actors in this process: national authorities, the institutions ofthe Council of Europe, the Court itself, and civil society

In keeping with the distinctive identity of the system, the authordevotes much of this book to the evolving purpose and continuing effect

xiii

of the Convention at national level The impressive second chapter takesthe reader into territory that is rarely visited by Convention scholars,where traditional legal analysis, however skilful, will not in itself suffice.Mindful of the difficulty of devising a methodologically sound andscientifically valid means of assessing national rates of compliance withthe Convention, the author draws upon scholarship spanning severaldisciplines to present the reader with an assessment of and possibleexplanation for the degree to which Council of Europe states havesuccessfully integrated the Convention into their national legal andpolitical orders In a nicely-turned phrase, the author observes that whilethe Convention was not the architect of the process of democratization

in central and eastern Europe, it can play the role of interior designer.Although more comparative and cross-disciplinary inquiry will berequired in this field, this book makes a major contribution to theendeavour

The present state of the Convention system is described and analysedwith great insight In response to the near-crisis of the individual justicemodel, the author maps the way towards a more stable scenario bymeans of improved compliance at national level, modification of thecurrent processes and fresh institutional innovation Regarding each

of these vectors, he advances arguments of considerable force andoriginality Professor Greer writes as a friend of the Convention system,speaking with the candour that characterizes true friendship His call

to the Court to rearrange the ‘primordial soup’ of the principles ofinterpretation is delivered with the audacity of an ally who seeks tospeed the institution towards its constitutional destiny

I might add that since I have myself tried for some time to nudgethe Court in the direction of a more constitutional future, it has given

me great pleasure to encounter an ally who transcends by far the

‘primordial soup’ of those critics who either are content to advocatedifferent outcomes of individual cases or else want to inflict ideologies

on the Court that were never democratically discussed or approved

I commend Professor Greer for this excellent book, and commend it

to all those to whom the Convention’s present and future are entrusted

Luzius WildhaberPresident, European Court of Human Rights

This book critically appraises the European Convention on HumanRights at a time of considerable change Unlike the many excellenttextbooks now available it does not seek to offer a comprehensivedescription of relevant institutions, procedures and norms Nor does itattempt to contribute to every issue-specific debate conducted in theperiodical literature Instead, it discusses both the key successes and acluster of systemic problems which require resolution if the Convention

is to be as successful as it could, and should, be in the twenty-firstcentury Some of the latter derive, ironically, from what is universallysaid to be its most notable achievement
the individual applicationsprocess
and others from the political, economic, constitutional, andlegal environment in Europe, radically transformed by the post-1989upheavals Yet others stem from the way in which the European Court

of Human Rights has interpreted both the Convention text and its ownrole There is wide consensus on both the nature of some of theseproblems and how they should be resolved Others provoke intensecontroversy and sharp differences of opinion Yet others have beenlargely, and some even entirely, ignored

Six core issues, organized around the theme of ‘constitutionalization’,are considered in the following pages First, Chapter 1 argues that, atthe close of the twentieth century, the original raison d’eˆtre for theConvention underwent subtle, yet fundamental, change At its founda-tion the Convention provided both an expression of the identity ofwestern European liberal democracy, self-consciously contrasted withthe rival communist model of central and eastern Europe, and also ameans by which states could seek to defend each other from the internalthreat of authoritarianism by bringing complaints to an internationaljudicial tribunal However, at the beginning of the twenty-first century,the Convention’s principal roles are to articulate an ‘abstract constitu-tional model’ for the entire continent
including and especially for thenewly-admitted post-communist states
and to provide a device for

xv

promoting convergence in the deep structure and function of publicinstitutions at all levels of governance in Europe.

The rest of the book is an attempt to discern what this might mean.Given that each member state, likely soon to be joined by the EU, bearsthe primary responsibility for the realization of Convention valueswithin its jurisdiction, the second of the core issues, considered inChapter 2, concerns how compliance might be measured and whichfactors most promote it Chapter 3 addresses the third issue, the Court’scase overload crisis, which is unlikely to be solved by the Protocol 14reforms, scheduled to come into effect in late 2006 or early 2007.With an annual average of 45,000 individual applications, and only

800
1,000 judgments a year, the right of individual petition hasbecome, contrary to the received wisdom, the Convention’s biggestproblem rather than its greatest success Further changes are, therefore,urgently required, whether or not the existing institutional structure

is altered Two further difficulties concern the method of adjudicationand the substantive case law Chapter 4 argues that the coherence andimpact of the Court’s judgments could be improved if the formershowed greater fidelity to the Convention’s primary constitutionalprinciples, while Chapter 5 pursues the logic of this analysis in thejurisprudence Chapter 6 considers the sixth issue
the institutionalchanges which are required if Convention compliance is to be improved

It argues that, in addition to making all the Court’s judgments binding

on all member states, including their courts, a European Fair TrialsCommission should be created However, it also maintains that, in thefinal analysis, the best prospects for improving national compliancelie in the creation of National Human Rights Institutions, establishedaccording to a common model, which would provide the Court and theEuropean Commissioner for Human Rights with reliable informationabout systemic national problems, and which could also be empowered

to bring test cases to the Court, either through the Commissioner or

on their own initiative Finally, Chapter 7 seeks to weave the conclusions

of the previous chapters into a coherent summary of the book’s mainthemes, arguments, and proposals

As with virtually all Convention scholarship, a key data source forthis study has been the case law of the European Court of HumanRights, and, to a lesser extent, that of the European Commission ofHuman Rights (abolished in 1998) The European Human Rights Reports(EHRR), the Council of Europe’s Decisions and Reports (DR) and theYearbooks of the European Convention on Human Rights (YB) have

provided particularly useful collections of the most significant decisionsand judgments However, for two reasons, no attempt has been made tocite this now substantial body of jurisprudence comprehensively,particularly in Chapters 4 and 5 where the temptation to do so wasstrongest First, Convention case law typically takes the form of abstractprinciple applied to facts Rarely, if ever, does it amount to what jurists

in the common law tradition would recognize as an integrated system ofjudicially constructed ‘legal rules’ This is an inevitable consequence notonly of the highly abstract character of Convention rights and principles,but also of the fact that the concrete elements of any judgment willprobably only apply to the specific respondent state because the preciselegal and factual matters at issue are unlikely to be reproduced in allrelevant particulars elsewhere Unlike common law systems, where eachjudicial decision can plausibly be regarded as a component piece in acomplex and integrated legal mosaic, judgments of the European Court

of Human Rights tend, therefore, to illustrate how a relevant principleapplies to certain facts It follows that any one or more of severaljudgments can usually be cited for that purpose Second, since the Courttends to restate its interpretation of a given principle verbatim in verdictafter verdict, there is little need to refer to every occasion on which it hasdone so For these reasons, and in keeping with the publisher’s policy forthis series, there is, therefore, no table of cases Furthermore, in seekinganswers to the questions raised by this research, the parameters have had

to be cast much wider than is typical in most legal scholarship Relevantcontributions from philosophy, history, political science, internationalrelations, and comparative law have also been consulted Mypreliminary reflections on some of the core themes appeared in earlierpublications, particularly in two short monographs published by theCouncil of Europe in the Human Rights Files series in 1997 and 2000,and in four articles in 2003, 2004, and 2005, in the Oxford Journal ofLegal Studies, the Cambridge Law Journal, and Public Law Furtherdetails can be found in the Bibliography I am grateful to the respectivepublishers for allowing up-dated and revised versions of some of thismaterial to be included here

Without the assistance of a great many people and organizations thisbook would have been impossible or much more difficult to write.Needless to say, responsibility for the conclusions it contains remainsmine alone However, I would like to express my profound gratitude tothe following for their contributions The British Academy gave theproject a flying start by awarding me the ‘Thank-Offering’ to Britain

Research Fellowship which I held at the University of Bristol in theacademic year 2002
3, funds for which were generously provided byJewish refugees who fled anti-semitism in continental Europe in the1930s I was also fortunate to receive a British Academy Small ResearchGrant which helped defray the costs of two visits to Strasbourg, inJune 2003 and January 2004, when key players in the debate about thereform of the Convention system were interviewed The University ofBristol not only contributed to the costs of these trips, and to a visit toLondon in 2004 when representatives of Amnesty International wereinterviewed, but also enabled me to accept the ‘Thank Offering’Fellowship, and generously granted a further period of study leave inthe academic year 2005
6 to hasten the project’s completion Bycommissioning the two monographs referred to in the previousparagraph, the Council of Europe helped inspire this study, providedand permitted the publication of some statistics otherwise not in thepublic domain, and also kindly facilitated three visits to Strasbourgwhere I was received with great courtesy and hospitality David Crowe,

of the Information and Publications Support Unit in the Council ofEurope’s Directorate General of Human Rights, not only expertly editedthe Human Rights Files monographs, but also went to a great deal oftrouble to arrange two of these visits, showed great kindness andfriendship throughout my time there, and responded positively andpromptly to various queries since The Universities of Bristol, Ulster andEssex, and the Society of Legal Scholars and the Socio-Legal StudiesAssociation, together provided no less than nine opportunities forembryonic versions of some of the ideas presented here to be exposed toprobing questions and constructive criticism from colleagues in variousstaff seminars or conferences Professor Colm Campbell of theUniversity of Ulster, Professor David Feldman of the University ofCambridge, Professor Martin Lynn, formerly of Queens UniversityBelfast (now sadly deceased), and Professor Malcolm Evans,Professor Rachel Murray, Dr Tonia Novitz, Dr Pat Capps, Dr JulianRivers, Dr Phil Syrpis, Dr Achilles Skordas, and Chris Willimore of theUniversity of Bristol, either referred me to sources I might otherwisehave missed, commented on earlier drafts, enthusiastically debated theissues with me, or simply offered their encouragement and support.Mike Drew assisted with the graphics, Windy Hon and Esther Yeehelped edit the Bibliography, and Esther also checked the figures TheFinnish delegation to the Council of Europe kindly invited me to attend

a Symposium on the Reform of the European Court of Human Rights,

held in Strasbourg on 17 November 2003 which provided anilluminating insight into the reform debate Finola O’Sullivan and hercolleagues at Cambridge University Press expertly piloted the projectfrom submission of the initial proposal to publication Finally, thelove and support of Susan, my wife, and Cara, Lucy, and Hope, mydaughters, helped, as always, to sustain me.

Steven GreerBristol2006

1 The First Half Century

INTRODUCTIONThe European Convention on Human Rights is an international treatyfor the protection of fundamental (mostly) civil and political liberties

in European democracies committed to the rule of law It was created

in 1950 by the ten Council of Europe states
an organization foundedthe previous year
as part of the process of reconstructing westernEurope in the aftermath of the Second World War Like the Council

of Europe itself, it has since grown to embrace every state in Europeexcept Belarus, forty-six in total, with a land mass stretchingfrom Iceland to Vladivostok and a combined population of nearly

800 million

It is not, of course, the only international human rights treaty in thecontemporary world Several others are global in scope and thereare also regional regimes in the Americas, Africa, in the Arab world,and between the former Soviet republics But it is unique in providing,what is widely regarded as the most effective trans-national judicialprocess for complaints brought by individuals and organizationsagainst their own governments, and, much less frequently, accusations

of violation made by member states against each other Nor is theConvention the only site for the institutionalization of the human rightsideal in post-war Europe The profile of human rights has grown

in other transnational European organizations, particularly and ingly, the European Union, while national constitutional and legalprocesses have also converged around a single model characterized bythe Convention ideals of constitutional democracy, human rights, andthe rule of law

increas-The Convention’s fiftieth birthday was marked, in 2000, by bration of the fact that it had matured from uncertain infancy at theheight of the Cold War into an institution now deeply entrenched

cele-in western Europe, and begcele-inncele-ing to take root cele-in the new democracies

1

of the former Soviet-bloc Yet, even before its birthday celebrations hadbegun, it was clear that it faced a crisis raising fundamental questionsabout its future and purpose This study argues that the solution lies

in a process of ‘constitutionalization’ But, before considering what thismight entail, the Convention’s core achievements and difficulties firstneed to be identified Two questions are particularly central: what was

it originally for, and how, if at all, has this been changed by events overthe past half century?

HUMAN RIGHTS, L IBERALISM AND

INTERNATIONALISMThe modern western ‘human rights ideal’ can be summed up as follows:prima facie everyone has an equal legitimate claim to those tangibleand intangible goods and benefits most essential for human well-being.Self-evident though this notion might seem in contemporary Europe,

it did not gain serious political and social momentum until thecollapse of feudalism in the early modern era accompanied by the rise

of natural rights theory, liberalism, constitutionalism and alism.1The European Convention on Human Rights is one of the manyproducts of this process

internation-Like many other pre-modern societies, European feudalism was basednot upon rights as such, but upon obligations attached to tiers of a fixedsocial hierarchy considered ‘natural’ and God-given But as feudalismsuccumbed to crisis in the late middle ages, new theories of legitimatesocial order and authority were required to fill the void With theadvance of secularism and rationalism, the ‘naturalness’ of divinelyordained, fixed social hierarchy became increasingly discredited, and the

‘natural’ needs of individual human beings was emphasized instead.2The natural rights theorists of the seventeenth and eighteenth centuries

1

For useful accounts see, e.g M Freeman, Human Rights: An Interdisciplinary Approach

Critical Legal Thought at the Turn of the Century (Oxford: Hart, 2000); R J Vincent, Human Rights and International Relations (Cambridge: Cambridge University Press,

2

Although the ideas of ‘rights’ and of ‘natural rights’ gained currency in the early modern period, the roots of the debate can be traced to ancient Roman law See, e.g T Honore´, Ulpian: Pioneer of Human Rights (Oxford: Oxford University Press, 2nd

argued that since nobody in the ‘state of nature’
outside the socialand political institutions associated with ‘civilization’
has a strongerclaim to survival than anybody else, everyone has an equal ‘natural right

to survive’, the ‘right to life’ The right to life implies a right to themeans of survival
‘property’ in a wide sense
plus the right toorganize survival as each chooses
liberty and other derivative rights,for example the right freely to associate with others According to thisview, the political state and civil society can be conceived as a contractbetween rational, self-interested, formally equal individuals to securetheir fundamental natural rights, with the social and political orderthis suggests retaining its legitimacy only in so far as these contractualcommitments continue to be fulfilled.3 Inherent in this idea was alsothe notion
deemed an essential condition for ending the religiouswars which had scoured Europe since the Reformation
that the stateshould be neutral between competing conceptions of the meaningand purpose of life Paradoxically for two of the three leading naturalrights theorists
Hobbes and Rousseau
the social contract couldlegitimately produce authoritarianism of, respectively, the state andthe community But for Locke, and what became the liberal tradition,only the constitutional state
limited by constitutional rights and bythe rule of law
could effectively protect natural rights.4

To gain ascendancy a political ideal not only needs a certain thresholdlevel of coherence and plausibility, but also the support of powerfulinterest groups who see some benefit for themselves in its effectiverealization This was also true of the Lockean idea of natural rightsand the constitutional state which was carried to prominence in theearly modern period by the economically powerful, though politicallyemasculated, mercantile (and later industrial) middle classes in Europeand America.5 The identity and material interests of this social groupwere intimately connected both with the freedom they enjoyed fromfeudal obligation
a negative right from which a whole catalogue

of other negative rights or freedoms could apparently be ‘logically’derived
and with a commercial world in which contracts were central

3

4

See J R Milton and P Philip Milton (eds.), John Locke: An Essay Concerning Toleration

Press, 2006); M Goldie (ed.), John Locke: Two Treatises of Government (London: Everyman, 1993).

to their own, and they assumed to everyone else’s, legitimate prosperityand progress.

In the eighteenth century the liberal social contractarian vision,popularized by campaigners such as Tom Paine,6 inspired two formaldeclarations of rights, which later provided models for numeroussubsequent documents both national and international including, in thetwentieth century, the European Convention on Human Rights In 1776the Preamble to the American Declaration of Independence famouslyclaimed ‘these truths to be self-evident, that all men are created equal,that they are endowed by their Creator with certain unalienablerights, that among these are life, liberty and the pursuit of happiness’

In 1791 the US Constitution was amended by a series of constitutionalrights, known collectively as the US Bill of Rights, which includethe rights to freedom of religion, assembly, speech and the press,and the rights to bear arms, to jury trial, to privacy, to public trial,and to security of property.7Meanwhile, in 1789, the Preamble to theFrench Declaration of the Rights of Man and the Citizen had declaredthat ‘the Representatives of the people of France formed into a NationalAssembly, considering that ignorance, contempt, or neglect of humanrights are the sole causes of public misfortune and corruptions

of Government, have resolved to set forth, in a solemn declaration,these natural, imprescriptible, and inalienable rights’ Faithful to thesocial contractarian tradition, Article II states that ‘the end of allpolitical associations is the preservation of the natural and imprescrip-tible rights of man; and these rights are liberty, property, security,and resistance of oppression’ Other provisions contain familiar rights tofreedom of thought, conscience and religion, fair trial according to therule of law, freedom from arbitrary arrest and detention, and democraticparticipation In spite of their similar content there are, however,various formal differences between the French Declaration and the USBill of Rights For example, the French document, unlike the American,was drafted before the constitution and, therefore, gave the latter

For a discussion of the global legacy of the US Bill of Rights see A Lester, ‘The Overseas

B Ackerman, ‘The Rise of World Constitutionalism’, Virginia Law Review 83 (1997),

its legitimacy,8 and the rights enshrined in the US Bill of Rights aregenerally expressed in absolute terms while those in the FrenchDeclaration are more formally circumscribed.9

The doctrine of natural rights, and its implications for the structure

of state and society have, however, been hotly disputed since firstformally articulated in Europe in the seventeeth and eighteenthcenturies Conservative critics, such as Edmund Burke, argued againstreplacing the ‘organic’ bonds of personal fealty and mutual personalobligation, cultivated by tradition over the centuries, with the muchmore impersonal, universal, formal, rationalistic, legalistic
and alsoallegedly more volatile and antagonistic
ones derived from thedoctrine of natural rights.10 Jeremy Bentham also launched a scathingcritique, arguing that there are no such things as natural rights, and thatthe promotion of the greatest happiness of the greatest number(the principle of utility), is the only rational and universal moralprinciple.11 Arguing that the only genuine rights are legal rights,Bentham maintained that these should only exist if they are consistentwith the principle of utility The protection such rights offer minorities

is, therefore, precarious and unstable since they can be dispensedwith in an instant if the overall pain caused by the persecution of

a troublesome minority would be less than the aggregate satisfaction

it would give the majority Addressing this much-criticized defect, JohnStewart Mill modified utilitarianism in the mid-nineteenth century

by acknowledging that the application of the principle of utility should

(Boston/New York: Bedford Books, 1996), p 15.

make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people

shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law’ See the discussion of differences between the European Convention on Human Rights and the

US Bill of Rights in N Bobbio, The Age of Rights, trans by A Cameron (Cambridge:

other Writings on the French Revolution (Oxford: Clarendon Press, 2002).

be grounded in an equal right to liberty,12 a compromise whichenthroned utilitarianism as the dominant political morality in Englandfor a hundred years.13 Darwinism also discredited the notion thatsociety is the result of an historic association of once asocial individualssince, if the human race is descended from other primate species, it is,like them, social by nature.14In the late nineteenth and early twentiethcenturies, under the influence of Marx, Weber, Durkheim, and others,interest in political and moral philosophy waned as social science grew.Within this paradigm the individual came to be seen as at least as much

a product of society as the other way around, and the notion that moral

or political entitlements can be derived from putative observationsabout universal characteristics of the ‘human condition’ or ‘humannature’, was either rejected or ignored.15

The liberal natural rights tradition also suffered from a doublepolitical weakness Although some of its exponents, such as Kant,produced imaginative schemes for international peace and order, in theeighteenth century the social contract vision was generally limited

to the constitutional protection of rights within the sovereign state.Therefore, if a state decided to violate the rights of its own subjectsthere was little other states, or their citizens, could do, or generallyfelt they were entitled to do, about it Secondly, in the nine-teenth century, nationalists ascribed to ‘peoples’
defined by theallegedly ‘natural’ characteristics of kinship, language, and homeland
the ‘natural rights’ to statehood and self-determination in the ‘state ofnature’ among nations, which earlier natural rights theorists hadclaimed for individuals In western Europe in the nineteenth centurythis increasingly pitted state against state in a restless quest to incor-porate scattered fragments of ‘the nation’ within the frontiers of thecountry to which they were deemed by kinship to belong, thus under-mining the foundations of the large multi-ethnic Austro-Hungarian,

R Harrison, Hobbes, Locke, and Confusion’s Masterpiece: An Examination of Seventeenth-Century Political Philosophy (Cambridge/New York: Cambridge University Press, 2003).

Russian and Ottoman empires which dominated the eastern and centralregions of the continent.

However, as the nineteenth century progressed, internationalcooperation between states also became more routine, as problemsdemanding technical solutions increased, for example, with respect

to travel and communications.16The growing humanitarian concern forneedless human suffering also led to several significant developments.The drive against slavery, powerfully bolstered by the need for globallabour mobility, resulted in an Anti-Slavery Act at the internationalBrussels Conference of 1890, which established enforcement procedures,including the right to search ships In 1863 the Red Cross wasfounded, and in 1864 the Geneva Convention for the Amelioration

of the Condition of the Wounded in Armies in the Field waspromulgated In the nineteenth century, a ‘right to humanitarianintervention’
military interference in other states to prevent grossviolations of human rights
was also claimed as a norm of customaryinternational law by western powers seeking to protect Christianminorities in the Balkans and the Middle East from atrocities committed

by the Ottoman Empire However, this was to prove a double-edgedsword as the same doctrine would later be used by Hitler as a pretext forthe annexation of neighbouring countries in which German minoritieswere said to be suffering persecution

Competitive nationalism in Europe climaxed in the First World War.Since no redrawing of Europe’s national frontiers, whether by conquest

or negotiation, would ensure that every state was homogenous in terms

of language, ethnicity, religion and culture, one of the great challenges

in its aftermath was to find ways of ensuring that minorities defined

by these characteristics were not mistreated in whatever state theyhappened to find themselves The victorious, and newly created, statessigned special minority-protection treaties, chapters on minority rightswere included in treaties with defeated powers, and some statesmade declarations before the Council of the League of Nations as

a condition of membership.17 The national minorities section of theLeague’s secretariat supervised these arrangements by receiving peti-tions from any source which alleged violation of treaty commit-ments, and determined if they should be scheduled for a decision by the

(Oxford: Clarendon Press, 1998), Ch 5.

League Council Although rarely used, a judicial procedure enabledadvisory opinions to be sought from the Permanent Court ofInternational Justice, which could also make a binding decision in acase referred to it by a Council member However, Jackson Preece claimsthat the humanitarian conditions of minorities mattered less than theeffect their mistreatment might have on relations within, and between,particular nation-states.18 Indeed, human rights more generally had

a low profile in the League’s activities, making only a limited ance in the League Covenant which enjoined members to work towardsmore humane working conditions, prohibited traffic in womenand children, and encouraged the prevention and control of diseaseand the just treatment of native and colonial peoples The post-warsettlement, including the attempt to protect national minorities, was,however, to prove a dismal failure A mere two decades later economiccrises, rising tension between communism, fascism and liberalism,and the international competition produced by the still-robust nation-state system, doomed the League of Nations and set Europe on coursefor a war which would again engulf the world

appear-THE MERE SHADOW OF A UNION

When the Second World War ended in 1945 one question reverberatedaround the globe: how could such a catastrophe be prevented fromrecurring? It was clear that the constitutional, political, and legal systems

of some European countries had not effectively curbed the ambitions

of political movements offering authoritarian answers to economicproblems and military solutions to territorial disputes The way forwardfor many western democrats, therefore, seemed to lie in the firmernational entrenchment of constitutional democracy, human rightsand the rule of law, and their better protection in much more effectiveinternational institutions There was little enthusiasm for a return to thesystem devised by the League of Nations for the protection of minorities

in Europe in the inter-war years It had, after all, been a double failure

It had failed to protect minorities, which had become mere pawns

in the territorial squabbles between ‘kin-states’ claiming to championtheir interests, and the host-states in which they found themselves.19

It had also failed to prevent war Nor had the Second World Warsolved the minority question in Europe either Indeed the displacement

of millions had made it more complicated The protection of individualrights seemed, therefore, to offer a simpler solution, and one which stilloffered the tantalizing prospect of success

In 1941, when President Roosevelt enunciated the Four Freedoms,human rights became an official war aim, even before the US hadofficially entered the conflict.20 Nevertheless, it was only as a result

of successful lobbying by NGOs attending the San Francisco ence, which established the United Nations in the summer of 1945,that the UN Charter contained so many references to human rights.For example the Preamble reaffirms ‘faith in fundamental humanrights, in the dignity and worth of the human person, in the equal rights

confer-of men and women and confer-of nations large and small’ Article 1 states thatone of the purposes of the UN is to ‘cooperate in promoting respectfor human rights and fundamental freedoms for all’, Article 55proclaims that the UN shall promote ‘universal respect for, and obser-vance of, human rights and fundamental freedoms for all withoutdiscrimination as to race, sex, language or religion,’ and Article 56provides that ‘all members pledge themselves to take joint and separateaction in co-operation with the Organization for the achievement of thepurposes set forth in Article 55’ Other provisions, for example, Articles

13, 62, 68, and 76, enable UN organs to study, promote, and makerecommendations about human rights

But, in spite of these propitious developments, there was still a greatdeal of uncertainty about what the term ‘human rights’ meant On theface of it, both ‘human’ and ‘natural’ rights share the same underlyingassumption
that certain basic entitlements are universal, integral

to being human, and are not merely the expression of the values

of a particular culture at a particular stage in human history But theupsurge of interest in human rights in the aftermath of the SecondWorld War had less to do with the re-affirmation of natural rightstheory than with the task of finding a normative language
and thenational and international institutions and processes it suggests
whichcould effectively promote peaceful coexistence in an increasingly

20

interdependent world.21The focus of the definitional debate, therefore,shifted from the attempt to derive a universal set of values from putativeuniversals of the human condition, to finding a workable consensusbetween the core elements of the world’s major value systems.The outcome was the proclamation of the Universal Declaration

of Human Rights by the UN in 1948, the significance of which hasdivided commentators Some regard it as a watershed in the history

of human rights because, for the first time, representatives of westernand non-western civilizations from around the world collaborated

to produce a list of basic civil, political, social and economic rights goingfar beyond those the Enlightenment thinkers had regarded as ‘natural’.For example, Mary Ann Glendon, a strong critic of the rights culture

of the US, believes it to be ‘on the whole, remarkably well-designed’,not least because of the links it proclaims between freedom andsolidarity.22 On the other hand, the Declaration’s aspirational charac-ter, and its lack of any enforcement machinery, have led others

to regard it as virtually worthless For example, according to Simpson,Hersch Lauterpacht, perhaps the leading scholar of human rights ofthe period, viewed the UN’s adoption of it with ‘something approachingcontempt’.23 Although the Universal Declaration has since inspiredother rights documents at the national and international levels,the unwillingness of states to surrender sovereignty makes it, and sub-sequent UN human rights treaties, difficult to enforce

However, in the latter half of the twentieth century, the new politicalmomentum behind the international human rights ideal gave freshimpetus to the debate within the western intellectual tradition aboutthe ontological and institutional status of human rights But as timeprogressed it became increasingly clear that the centre of gravity ofthis debate had also shifted While little interest has been expressed

in resurrecting the old theories of natural rights, other attemptshave been made to provide the human rights ideal with cogent theo-retical foundations.24 Although none of these has escaped criticism,

A W B Simpson, ‘Hersch Lauterpacht and the Genesis of the Age of Human Rights’,

24

For example, J Habermas, Between Facts and Norms, trans W Rehg (Cambridge: Cambridge University Press, 1996); A Gewirth, Human Rights: Essays on Justification and Applications (Chicago/London: University of Chicago Press, 1982).

thorough-going intellectual antagonism towards the idea of humanrights has become much more difficult to sustain in the west in the post-war era than it was in the heyday of the doctrine of natural rights.The paradoxical result is that, while no consensus has emerged in thewest regarding the foundations of the human rights ideal, no politically

or intellectually credible basis has been found for rejecting it either.The intellectual debate has, therefore, increasingly been conductedbetween ‘rights affirmers’, who believe that individual human rights are

in some sense the top (though not the only) priority in nationaland international public policy, and ‘rights sceptics’ who maintainthat, while human rights have some merit, they do not deserve

a privileged status over the pursuit of the collective or public good.25Generally speaking, rights affirming theories suggest that humanrights should be judicially entrenched against legislative encroachment,while rights scepticism suggests the converse, that democratic legisla-tures should be entrusted with the protection of human rights withoutstrong judicial restraint.26

It may, therefore, still be possible, taking a robust Marxist view,

to argue that human rights are nothing more than an expression ofbourgeois ideology, or from a communitarian or cultural-relativist per-spective to maintain that they have no universal characteristicstranscending the points of view of particular communities, or to con-clude from feminism that the very idea of rights (including humanrights) is ‘patriarchal’, or to claim, as postmodernism suggests, thatthe human rights ideal is merely one of many illusory ‘grand narratives’,condemned by the irredeemable indeterminacies of language, never toattain an objective status But the fact is that few scholars attempting

to make a serious contribution to the human rights debate from any

of these traditions would now expressly, and unequivocally, repudiatethe human rights ideal in its entirety Instead, most either avoid drawingsuch uncompromising conclusions, and simply leave it to the reader todiscern where the analysis leads, while others, more honestly, openly

25

This broadly corresponds to Dworkin’s distinction between political theories which are right-based, duty-based and goal-based, with the former corresponding to ‘rights- affirming’ theories and the latter two to ‘rights-sceptical’ theories, Dworkin, Taking Rights Seriously, p 171.

constitutional documents see J Waldron, ‘A Right-Based Critique of Constitutional

advocate some version of rights scepticism.27 This is so for threeprincipal reasons First, it has become extremely difficult plausibly tocondemn the human rights ideal, and the institutions it suggests, whilesimultaneously offering convincing reassurance that a recurrence of theinhumanities perpetrated by communism and fascism in the twentiethcentury could, nevertheless, be avoided in Europe in the twenty-firstcentury Second, it is difficult to see how the case against human rightscan be advanced without relying on a self-contradiction, namely theassertion of the right to freedom of expression, unless (implausibly andfor no obvious reason) this is the only genuine human right, and that itcan coherently be exercised in order to reject the idea of human rights

as a whole Third, a viable normative language capable of replacing that

of human rights, which is more suitable to the conditions ofcontemporary Europe, has proved at least as difficult to find as theontological basis of the human rights ideal itself

But, long before this intellectual debate had developed, interest

in regional arrangements for human rights increased in the immediateaftermath of the Second World War.28Initially there was some concernthat developments along these lines might undermine the authority ofglobal institutions for peace and international order But, as disillusion-ment rapidly grew with the slow rate of progress at the UN, particularly,but not only, on the human rights front, these concerns gave way tothe view that European recovery, prosperity, and security requiredtailor-made arrangements, including a regional human rights regime.European states were not, however, to be the sole masters of their own

T Campbell, The Left and Rights: A Conceptual Analysis of the Idea of Socialist Rights (London/Boston/Melbourne/Henley: Routledge & Kegan Paul, 1983); S Lukes, Marxism and Morality (Oxford: Clarendon Press, 1985); C Smart, Feminism and the Power of Law (London: Routledge, 1989) Ch 7; E Kingdom, What’s Wrong with Rights? Problems for Feminist Politics of Law (Edinburgh: Edinburgh University Press, 1991); N Lacey, ‘Feminist Legal Theory and the Rights of Women’, in K Knop (ed.), Gender and Human Rights (Oxford: Oxford University Press, 2004); Douzinas, End of Human Rights; M Salter, ‘The Impossibility of Human Rights Within a Postmodern Account of

the Limits of Justice (Cambridge, Cambridge University Press, 2nd edn., 1982);

A MacIntyre, After Virtue (London: Duckworth, 1981); M A Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991).

in a British Foreign Office minute of June 1948, A W B Simpson, ‘Britain and the

destiny The defeated European powers were obviously in no position

to argue But even the victors were constrained by the conflictinginterests of the USA and the USSR By 1948 it had become clear thatGermany would be partitioned, that the USSR would dominate easternand central Europe, and that the USA regarded an integrated westernEurope, both as a bulwark against the spread of communism and theterritorial expansion of the Soviet Union on the one hand, and as

a constraint upon a resurgent German nationalism on the other.29Various ideas about the form European collaboration should take,ranging from loose union to full-blooded federation, had been underdiscussion even in the inter-war years However, although it was later

to become central to the federalist agenda, the protection of rights wasnot emphasized at this stage.30 Even as the Second World War raged,Churchill had argued that a United States of Europe should be con-structed once hostilities ended, a view warmly endorsed by otherEuropeans, particularly those on the anti-communist centre-right

of the political spectrum But the post-war British Labour ment preferred an anti-Soviet military alliance plus something moreideological and symbolic than integrationist Other pressing foreignpolicy issues delayed the start of negotiations for several years But in akey speech to the House of Commons on 22 January 1948
misinter-preted on the continent as the UK assuming the leadership of theEuropean integrationist movement
the British Foreign Secretary,Ernest Bevin, stated that a western European ‘spiritual union’ based onrespect for human rights was now the prime aim of British foreignpolicy.31In fact, in 1948, the UK was the only European power capable

govern-29

See K Sikkink, ‘The Power of Principled Ideas: Human Rights Policies in the United States and Western Europe’ in J Goldstein and R O Keohane (eds.), Ideas and Foreign Policy: Beliefs, Institutions and Political Change (New York: Cornell University Press, 1993); A H Robertson, The Council of Europe: Its Structure, Functions and Achievements (London: Stevens & Sons, 2nd edn., 1961), p 6 Lundestad identifies three other US

American constitutional, political and economic model, cultivating European economic efficiency and rationalization, and reducing the American burden But containing the USSR and Germany were ‘particularly important and closely linked’,

G Lundestad, ‘‘Empire’’ by Integration: The United States and European Integration,

31

State, George Marshall and the French Foreign Minister, George Bidault at secret

(Oxford: Clarendon Press, 1984), pp 273, 274.

of exercising significant leadership.32 Bevin’s vision, though vague

on details, was to be implemented in three stages First, the UK,France and the Benelux countries signed the Brussels Treaty forEconomic, Social and Cultural Collaboration and Collective Self-Defence

on 17 March 1948, which included a Consultative Council and whichlaid the foundations for what later became the Western EuropeanUnion Although this was seen as a pact for economic, social, cultural,and defence cooperation, respect for human rights was a condi-tion of membership According to Morgan, the Brussels Treaty

‘marked a remarkable transformation’ in UK foreign policy comparedwith the ‘quiescence towards western Europe that had endured, largelyunbroken, since the end of the Peninsular War in 1812’.33 Second,

a wider military alliance including the US and Canada
the NorthAtlantic Treaty Organization of 1949
provided firmer militaryguarantees for these states Third, it was envisaged that otherEuropean countries, including West Germany, would eventually signthe Brussels Treaty when they could comply with the membershiprequirements, particularly respect for human rights

But there were other ideas in the air A Congress of Europe,sponsored by the right-of-centre International Committee of theMovements for European Unity, and attended by some 660 delegatesincluding 20 Prime Ministers and former Prime Ministers, met in theHague in May 1948 In his keynote speech the Honorary President,Winston Churchill, argued that a European Charter of HumanRights should be at the centre of a new programme of Europeanunification.34Delegates not only endorsed this idea but also proposed

a judicial enforcement process at the instigation of individual petitionand a European Parliamentary Assembly The British government,which had not sent a delegation to the Congress, opposed bothideas on the grounds that an Assembly would provide an unwelcomeplatform for communists, while a court of human rights would create

an equally unwelcome judicial authority superior to any British court.35

Leadership of the European movement then drifted to France, and,

in October 1948, the various strands of European integrationismwere woven into the single European Movement which continued

to press for a European Assembly selected by national parliaments,which would discuss a wide range of issues, including human rightsand further proposals for European integration.36

As 1948 drew to a close the governments of the UK, France andBelgium agreed to establish a Council of Europe and invited Ireland,Italy, Denmark, Norway, and Sweden to participate in the negotiations.Luxembourg and the Netherlands also later became founding members.The task of drafting the statute of the Council of Europe, and laterthe text of the European Convention on Human Rights, fell to theBritish Foreign Office.37This was ironic because the British governmentwas committed to increased European cooperation rather thanintegration, the Foreign Office had little legal expertise, the Britishrights tradition emphasized the importance of effective concreteremedies for specific wrongs rather than lofty statements of generalprinciple, and if the British governing class had a coherent sharedpolitical morality it was utilitarianism Sir Gladwyn Jebb (later LordGladwyn), a British Foreign Office official at the heart of thenegotiations, later described the Statute of the Council of Europe
signed on 5 May 1949
as creating nothing more than the ‘mereshadow of a union’.38

Six core principles underpinned the Council of Europe Certainunspecified ‘spiritual and moral values’
‘the cumulative influence

of Greek philosophy, Roman law, the Western Christian Church,the humanism of the Renaissance and the French Revolution’39
are said to constitute the ‘common heritage’ of the signatory states(the ‘common heritage’ principle) and to be the true source of ‘indi-vidual freedom, political liberty, and the rule of law’ (the ‘human rights’and ‘rule of law’ principles) which form the ‘basis of all genuinedemocracy’ (the ‘democracy’ principle) The promotion of theseprinciples, and the interests of ‘economic and social progress’(the principle of ‘economic and social progress’), require closer unity

36

Ibid., p 629.

37

quoted in Simpson, Human Rights, p 646.

between like-minded European countries (the ‘closer unity’ priniciple).Similar ideas can be found in the Brussels and North Atlantic Treaties.40But while the Council of Europe is not unique in making adherence

to the principles of human rights and the rule of law a condition

of membership,41 it is unique in defining what human rights mean

in a further treaty (the European Convention on Human Rights),

in providing means for their enforcement, and in promoting

‘closer unity’ among its members But, as Robertson points out,the ‘closer unity’ principle is a less concrete commitment than thedesire, expressed, for example, by the Hague Congress of 1948, for aneconomic and political union which would involve a merger ofcertain ‘sovereign rights’, and probably only refers to the kind

of closer association which had already occurred as a result of theestablishment of the Organization for European Economic Cooperationand the signing of the North Atlantic Treaty just months earlier.Moreover, Article 1 of the Statute of the Council of Europe also seems toenvisage nothing more dramatic than the traditional methods ofinternational cooperation for achieving it.42

While the exclusion of defence issues is deliberate, and standable in view of the fact that these objectives were well covered

under-by the Brussels and North Atlantic Treaties,43Article 1 of the Statute

of the Council of Europe curiously says nothing specific about

‘political’ questions, possibly on the assumption that these are alreadyentailed by the reference to social and economic issues.44 Other pro-visions deal with membership (by invitation of the Committee ofMinisters), the establishment of the various organs (the Committee

of Ministers, the Secretariat, and the Consultative, later ParliamentaryAssembly, composed of representatives from national parliaments),the official languages (French and English), the location (Strasbourg),financial matters, privileges and immunities (including those

of representatives of member states), and arrangements for amendment,ratification, and other formalities.45

Assembly into the Parliamentary Assembly.

In addition to the European Convention on Human Rights, its mostcelebrated achievement, the Council of Europe has, since its foun-dation, sponsored some 200 treaties, on matters as diverse as children,cybercrime, drugs, data protection, farming, terrorism, and torture,some of which also have a strong human rights element.46Among themost prominent are the European Social Charter 1961, the EuropeanConvention on the Prevention of Torture and Inhuman and DegradingTreatment or Punishment 1987, and the Framework Convention for theProtection of National Minorities 1995, which have their own distinctivemonitoring mechanisms involving the submission of reports But onlythe European Convention on Human Rights provides a judicial processfor the adjudication of complaints by individuals or member states.47

A NOT UNSATISFACTORY AGREEMENT

According to Simpson, the European Convention on Human Rights wasthe product of ‘conflicts, compromise and happenstance’ and there are

no simple explanations either for what it is or for why it came intobeing.48 Although the discussions were inevitably influenced by theintellectual and political debates about rights which had been in progresssince the early modern period, they were overwhelmingly driven by theurgent need to find workable institutions and procedures which allparties could accept, rather than by grand theories about the relation-ship between the individual, the state, and civil society

Council of Europe Law: Towards a Pan-European Legal Area (Strasbourg: Council of Europe Publishing, 2005).

47

A Drezemczewski, ‘The Prevention of Human Rights Violations: Monitoring Mechanisms of the Council of Europe’, International Studies in Human Rights 67

within the Council of Europe: The Significant Absence of a Court’ in C Kilpatrick,

T Novitz and P Skidmore (eds.), The Future of Remedies in Europe (Oxford: Hart,

48

Simpson, Human Rights, p ix Other literature on the background to the Convention includes, G Marston, ‘The United Kingdom’s Part in the Preparation of the European Convention on Human Rights 1950’, International and Comparative Law Quarterly

‘The United Kingdom Government’s Perceptions of the European Convention on

Things got off to a poor start with the Assembly anxious to pressahead, but a majority of the Committee of Ministers showingconsiderable reluctance.49 In August 1949 three powerfully endorsedAssembly proposals compelled the Ministers to treat the matter withgreater urgency.50By October the British government had reached theconclusion that a human rights convention was urgently required, partly

to remedy the lack of global progress at the UN (for which the UKblamed the US), and also because it was now convinced that the Council

of Europe had become ‘one of the major weapons of the cold war’.51

In November the Committee of Ministers approved the establishment

of a Committee of Experts which met in January 1950 to consider fiveissues: content, including whether there should be a general limitationclause or separate clauses attached to each right; institutions and theirfunctions; enforcement mechanisms; requiring member states to bringtheir domestic law into line with the Convention; and a provisionregarding the safeguarding of democratic institutions Having embarked

on this course of action, the political pressure to avoid failurewas enormous since it was unlikely that the Council of Europe itselfwould survive the acrimonious collapse of its first substantial project,and this, in its turn, would be seen by friend and foe alike as a hugedefeat for the ‘shared identity and common destiny’ of post-war westernEurope.52

As with many treaties, and indeed with many written agreements ofany kind, Convention negotiations were marked by sharply competingvisions of what was required.53These differences were also, in their turn,reflected in disagreement on several substantive issues
which rightsshould be included (those to property, education, and free electionsproved particularly controversial), how detailed their specificationshould be, and whether there should be a Court and a right of individualpetition Not only did the Committee of Ministers take a different viewfrom the Consultative Assembly on these matters, but the position

of some states differed from that of others, and some issues even divided

Simpson, Human Rights, p 684.

Perceptions of ECHR’.