Western Europe

Remaining Faithful to “the Basic Principles of Human Rights Found in the Original ECHR”?

By Ed Bates
Friday, April 14, 2017, 3:13 PM

A review of Marco Duranti, (Oxford University Press, 2016).

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Last December the reported that the U.K. Conservative Party may include a commitment for the U.K. to withdraw from the European Convention on Human Rights (“ECHR”) in its 2020 election manifesto. A decade or so ago such a proposal would have been inconceivable. Today, however, the anti-Strasbourg mood, which is mainly (but not exclusively) concentrated amongst a sector of U.K. Conservatives, is based on a variety of factors. One is perception that the European Court of Human Rights (“Strasbourg,” “the Court”) has aggrandized its jurisdiction to become an overly intrusive institution, and that this now entitles the U.K. to withdraw from the ECHR.

This was the narrative of a 2014 Conservative party document (entitled, “.”) which maintained that the U.K. had had a major role in the drafting of a good Convention text, and that it was Strasbourg’s misinterpretation of the same which was at the root of the problem with European human rights law today. It concluded by stating that the U.K. stood by “the commitments made when we signed the Convention, and it is only the subsequent approach of the Court … that [has] eroded public confidence in our human rights framework.” Following this, but before she became Prime Minister, Theresa May that the U.K. might withdraw from the Convention, if that was necessary to “fix” U.K. human rights law. To “what end are we signatories to the Convention?”, she asked. She made similar statements were in . In February 2017 she referred to her commitment to reform U.K. human rights law in a fashion that would “.”

Against this backdrop the publication of Marco Duranti’s book is very timely, is, and should be, significant. As he puts it, “[although some of the rulings of the Strasbourg court have been unwelcome to conservatives, the underlying principles of which it operates today are more in line with the original intent of its conservative progenitors than commonly assumed” (pp. 340-341).

The Conservative Human Rights Revolution should, therefore, give pause for thought for politicians advancing a self-righteous, Britain-knows-best view in relation to what is portrayed as a meddling Strasbourg Court that has lost sight of the Convention’s origins. That is because Duranti’s account shines new light on the motivation of some of the major figures who led calls for a European Human Rights guarantee, who had a leading hand in producing initial drafts of it, and who then exerted sufficient pressure on the (reluctant) governments of the day, including the U.K., to ensure that an ECHR came into being. Those figures included leading Conservative politicians of the era, such as Winston Churchill, but especially David Maxwell-Fyfe. As Duranti puts it, his study seeks:

to reframe our understanding of the origins of European human rights law by examining it through the lens of political conflicts underway within Britain and France during the period immediately following the Second World War. Free-market conservatives in Britain and social conservatives in France viewed a European human rights charter as a means of enshrining their contested views as the foundation stones of a united Europe (p. 332).

In this reader’s eyes one of the most important features of Duranti’s account is how leading conservatives of the era (in the U.K., but also in France) foresaw Strasbourg’s overall role. From the conservatives’ perspective the real value of an external safeguard would be to the check against extreme left-wing policies (such as nationalization) that the U.K. Labour party (or government) could institute with the backing of a compliant (executive-dominated) Parliament. Here we recall that the government at the time of the Convention’s drafting was the Labour, Atlee administration.

So, this aspect of the conservatives’ agenda over the late 1940s and into 1950 was part of an attempt to use a European regime to curb the extreme policies of a rival political party. From that perspective, the immediate inspiration was, clearly, political. Yet, for today, the key points to grasp are as follows. A European safeguard was viewed as having valuable potential, precisely as it was an external check.  In the U.K. it was so, especially, because of the nature of the U.K.’s constitutional arrangements, which permit the executive to potentially control Parliament (a regime described in the 1970s as an “elective dictatorship”). Thus, as twenty-first century Conservatives cry foul at a Court with potential to frustrate Parliament’s will on matters such as prisoner voting, we observe that their political forefathers envisaged and promoted a regime to do precisely this, albeit their target (at the time) was mainly the more extreme policies of the left wing.

Duranti’s account is therefore very significant for the way it brings out how those who conceived the Convention — as opposed to the governments responsible for signing it — saw it as an external check on the excesses of the State, and a safeguard against (what they saw as) the malfunctioning of the national democratic machine. It underlines how simplistic it would be to claim that the Convention was only intended to protect against the types of gross and systematic violations of human rights associated with Hitler and Stalin. Those advocating withdrawal from the Convention on the basis that today’s Court has lost sight of the origins and ideals of those who drafted a good substantive human rights text need to test their points against Duranti’s analysis. Even before ‘Brexit’, much of the Conservative rhetoric has been in keeping with the notion that Britain has a long tradition in protecting human rights, and does not need Europe’s intervention in this field. That is not necessarily the way that Churchill and Maxwell-Fyfe saw it.

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My discussion thus far has focused on those aspects of Duranti’s book which I personally find of greatest interest, i.e. the role of the Convention as envisaged by those who conceived it, related to the issue of possible U.K. withdrawal from the ECHR. To be clear, however, the book goes far further, and is much richer in its historical account and narrative than this.

It is divided into three main parts. Part One, two hundred pages in length, is presented in four chapters under the heading “European Memory, Human Rights Law, and the Romantic origins of International Justice (1899-1950).” This is a magnificent and original historical account of the relevant intellectual forces and origins that formed the backdrop to the gestation of a European human rights system (looking also at the role of colonialism and foreign policy on the way).  Here we encounter Churchill in his early years, and then as a leading light and grandfather figure for the European Movement’s gathering at The Hague in 1948, heralding the creation of (as it transpired) the Council of Europe, with the ECHR as its first main achievement.

Part Two of the book has the ECHR’s drafting as its focal point, although its overall title — ‘Free-Market Conservatism, Christian Democracy, and the ECHR (1944-1959)’ — signals the nature of the analysis and enquiry. That is, the central focus is on how domestic policies catalyzed the perspective of the leading conservative figures (free-market conservatism in the U.K., and French social conservatism) who conceptualized a European human rights treaty. Three chapters delve deeply into the respective political scenes in the U.K. and France during the era immediately before and during the Convention’s drafting, so providing a unique insight into factors and thinking which inspired those who conceptualized the Convention. Most notably, here the French side of the equation is brought out in considerable detail, counter-balancing the perspective often maintained in the U.K., that the British drafted the Convention almost single-handed. We also learn a great deal about key parts of the Convention’s substantive text: notably, the hand of U.K. conservatives, as well as other prime movers in the European Movement (in particular Duranti’s also delves into the world of Pierre-Henri Teitgen (France), amongst others) was near decisive in terms of which categories of rights were to be included in the Convention, and its first Protocol (even if the it transpired that the detailed drafting of the rights was the product of government lawyers). Thus, analysis and critique of this process, and the factors that motivated and shaped the human rights thinking of the day is another significant part of Duranti’s book. In particular, he offers an account of why social rights were not included in the proposed Convention guarantee, one that suggests the primary reason was political, not technical, and could again be attributed to conservatives using the European level to advance political preferences.

Part two also includes a chapter (8) entitled “Rethinking the ECHR’s Original Intent,” containing valuable reflections and critical perspectives on how the thinking of seven decades ago retains its relevance given the slings and arrows being directed at Strasbourg today. Duranti blends into his account his perspective on the extent to which aspects of the Strasbourg case law on from the 1980s onwards (e.g. on trade union rights) was in keeping with features of the conservative’s agenda. He argues that Churchill and Maxwell-Fyfe would have been relaxed with the notion of the Convention as a “living instrument” (a doctrine the subject of much ill-focused critique by U.K. politicians day), but also welcomed the moderating force of the margin of appreciation doctrine.

Part Three of the book (“Reflections on the Conservative Human Rights Revolution in Postwar Europe (1946-1950)”) demonstrates (as with Part One) its value beyond the direct focus on the Convention, its relevance to the broader European scene, and for European and international history more generally. With the earlier parts having set out Duranti’s central arguments, this last part provides a critical appraisal and reappraisal of established scholarly assumptions about the European project in the post-war era.

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Returning to that aspect of Duranti’s study that excites this writer (an academic focusing on the ECHR) most, his account of the historical origins on the ECHR, this is unique and pioneering on a number of levels.

It offers deep historical analysis of the French thinking which breathed life into the Convention. There is, as far as this writer is aware, nothing comparable in the English language literature.

Above all, Duranti lays far greater emphasis than any previous account on the importance of non-governmental influences, especially the European Movement, in the initiation and conceptualization of a European Convention, after which it then fell to the governments of the day to finalize it (indeed attempting to reduce its potential impact on the State). Fleshing out and bringing to life this aspect of the Convention’s origins, as Duranti does, remains of great validity today, and is not just out of historical interest. One suspects that certain Strasbourg Judges would argue that it is the “founding fathers’” (my term) vision for the Convention — its role as the so-called “conscience of Europe,” as identified by Duranti — that is as relevant as any other in deciphering the Convention’s real “object and purpose” (for the purposes of the Court’s task of interpretation under Article 31 of the Vienna Convention on the Law of Treaties).

Of course, an issue for the current generation of Strasbourg Judges potentially enthused by a “founding fathers’” agenda is how much they may feel entitled to articulate it in a progressive human rights jurisprudence, even though to do so may incur the wrath of national authorities who, in turn, insist that the national law being challenged is at least reasonable, and that, as such, should not be for Strasbourg to upset. Governments disposed to this perspective would be more inclined to insist that the origins of the Convention are more appropriately seen from less idealist perspectives, and, in particular, the precise motivation of the governments of the day in actually establishing the Convention. That was, very arguably, far more limited and less ambitious than that advocated by the European Movement, and the conservative forces of the late 1940s, or at best it may be said that the governments fudged the issues (in 1950 the Convention had no automatic right of individual petition, and, in effect, the decision on whether or not to actually establish a Court was put off to a later date). That said, here too the picture is complex. Some of the States concerned, France in particular, for example, may have subscribed to, or at least sympathized with the conservative perspective Duranti brings to life, even if other governments, the U.K. being one, eyed the Convention with great suspicion.

It should also be noted, as indeed Duranti does, that Churchill and Maxwell-Fyfe were no human rights idealists. As is pointed out, when (back) in office, as Prime Minister and Lord Chancellor respectfully, both adopted positions that the human rights community would frown upon, if not find offensive today. A minor quibble that I have with the book — and this is nit-picking — is that it could usefully have thrown more light on why, once the Conservatives were returned to power, the U.K. did not accept the Convention’s (then) optional clauses on the jurisdiction of the Court and the right of individual petition.

Duranti’s book is highly recommended, and, in my view, deserves the accolades and great recognition which it will surely achieve. It should influence debates on how the ECHR is seen today. In my view, it does not boost the case for those who would like the Strasbourg Court to become more progressive that it already is. Rather it exposes the weakness of the argument that the U.K. is justified in withdrawing from the Convention on the basis that its Court has somehow totally perverted what European human rights control was all about, given what was intended (at least by the most enthusiastic advocates of the Convention) in the late 1940s.

I fear, however, that, in the current political climate in the U.K. it may be wishful thinking that those pushing for withdrawal from the Convention will be willing to engage. Those advocating withdrawal often take the line that the U.K. has a long and proud tradition of human rights protection, which would not be brought into disrepute by U.K. withdrawal from the ECHR. Duranti’s book underlines what a skewed and short-sighted view that is. As he puts it:

A weakening of the European human rights system would render countless individuals, families, civil society groups, local communities, minorities, and political oppositions across European more susceptible to direct discrimination and abuse by the state. The day such an eventuality transpired would be a sad one for those who believe in the principles that Churchill and his fellow conservatives fought so mightily to enthrone in international law (pp. 341-342).