Our interview with President Rosalyn Higgins of the International Court of Justice
Universal Rights, European Realities?
by Dr. Martyn Bond
We at The Law Journal UK welcome a new contributing author, Dr. Martyn Bond. After a career in journalism, academia and the European civil service, Martyn Bond is currently a Director of the London Press Club, visiting Professor in European Politics and Policy at Royal Holloway College, University of London, and special advisor to the Federal Trust for Education and Research on EU Enlargement.
Your comments are welcome on this and any of our articles -- contact Brian Risman, Publisher, The Law Journal UK regarding your thoughts.
This year marks sixty years since the Universal Declaration of Human Rights in 1948, and Human Rights Day this year - celebrated on the 10th December - is a fitting moment to consider how these rights are upheld in practice and where they can be enforced.
At UN level member states can take various measures to help uphold the high ideals of the Universal Declaration, but they often lack coherence and sometimes seem disproportionate. For the most serious violations of human rights the Security Council – if no member state vetoes the agreement – can impose sanctions or even send in troops to impose peace and change a regime. In very exceptional circumstances the UN has set up international tribunals to try politicians and military personnel accused of crimes against humanity; the former Yugoslavia and Rwanda are examples of this. At a more everyday level, children and refugees are helped to assert their rights by UNICEF and UNHCR.
But the Universal Declaration, whatever its moral force, is in some ways a paper tiger since there is no regular Court to enforce the rights it proclaims. It was the Council of Europe that first went the extra mile some five years after the UN adopted the Universal Declaration. It set up the European Court of Human Rights to enforce Europe’s own regional Convention for the Protection of Human Rights and Fundamental Freedoms, the ECHR.
The Convention was negotiated in 1950 by the ten original members of the Council – Belgium, Denmark, France, Ireland, Italy, Luxembourg, Norway, the Netherlands, Sweden and the UK – against the backdrop of the still recent memory of the atrocities of the Second World War and the then present threat posed by totalitarian regimes in the Soviet dominated half of Europe. It reflects classic liberal values of Western democracy as we have grown to know and appreciate them: the right to life, prohibition of torture, slavery and forced labour, the right to liberty, security and a fair trial, respect for a private and family life and the right to marry, freedom of thought, conscience and religion, freedom of expression, assembly and association, the right to effective remedy, no punishment without law, and the prohibition of discrimination. And the Convention established the Court. By 1953 it was in force and the Court was in action.
As a degree of social progress was achieved across Western Europe and the jurisprudence of the Court required clarification of the original rights in the Convention, new rights were negotiated and enshrined in additional Protocols. These enlarged the scope of the rights covered by the Convention to include the protection of property, the right to education and to free elections, the prohibition of imprisonment for debt, the expulsion or exiling of nationals and the collective expulsion of aliens, freedom of movement, equality between spouses, the right of appeal in criminal matters, compensation for wrongful conviction, and the right not to be tried or punished twice for the same crime or alleged crime, as well as a general prohibition of discrimination on grounds of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. And – above all – the abolition of the death penalty, which could be seen as an explicit extension of the primary right to life enshrined in the original Convention, but which now marks out the countries of the Council of Europe as pioneers worldwide in this area of human rights.
Individuals in any of the forty-seven states which are now members of the Council of Europe can appeal to the European Court of Human Rights if they feel public authorities have infringed their rights as defined in the ECHR. It was the European Court of Human Rights that recently ruled that the UK government had abused the right to privacy by maintaining a DNA database of people arrested and charged but subsequently acquitted. Several individuals brought a case against the UK and the government is now obliged to change the law to conform to the judgment of the Court. Some months ago it also delivered a judgment against the UK for failing to protect individuals’ right to privacy from media intrusion, firing a shot across the bows of the unregulated UK press and requiring the consideration of public interest as a defence in such cases.
The road from the 1950s to today has not been entirely smooth for the European Court of Human Rights. Initially cases were screened first by a Commission made up of representatives of the member states before the Court could consider them. Now it rules itself on the admissibility of cases. But changes to its procedures are still subject to unanimous approval by all member states of the Council, and as the Council of Europe’s membership has enlarged, gaining unanimous approval has grown more difficult. Currently Protocol No. 14, which would further simplify the procedure for accepting or rejecting cases as admissible, has been approved by 46 states but is blocked by Russia. By speeding up the decision on admissibility, the Protocol would make a dent in the pile of several score thousand cases now pending in Strasbourg, many of which are brought by individual Russians against their state. It does not take a genius to detect some degree of self-interest in the Russian government’s failure to ratify the Protocol, and nobody can oblige them to hurry up.
The need to speed up justice in Strasbourg is self evident. The European Court of Human Rights delivers fewer than two thousand judgements a year, but receives over forty thousand applications. The number has mushroomed as the jurisdiction of the Court has spread to cover new states joining the Council of Europe following the collapse of communism. The “waiting list” of pending cases is growing longer year by year.
Not all applications turn into cases, and not all cases are accepted as admissible, but it still takes over three years on average for a case to come to judgment. Judgment delayed, it is said, is judgment denied, and when you consider that all applicants have had to exhaust their national procedures before coming to Strasbourg, successful litigants have inevitably suffered for many years before being vindicated.
European states knew very well what they were doing when they drew up the European Convention in the 1950s. They referred to the Universal Declaration in the Preamble and in the first article of the Convention: “resolved to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration”. Every state joining the Council of Europe now formally ratifies the ECHR. In the case of the UK it recently took the specific step of incorporating the Convention into national law, unambiguously making the European Court the highest instance for judicial decisions in this area, without subsequent appeal to the House of Lords.
An article of the Lisbon Treaty permits the European Union to join the Council of Europe as a member alongside its member states, and consequently to join the European Court of Human Rights. All acts by the Institutions of the EU – the Parliament, the Council, the Commission and so on – would then be explicitly subject to the ECHR, adding a further guarantee with a right of individual appeal against breaches of the Convention by the EU.
Little by little the legal guarantees both in the Europe of the EU’s 27 member states and in the 47 states of the Council of Europe are coming closer together. That is something worth celebrating on Human Rights Day, even if other parts of the world have still some way to go to emulate it.
Dr. Martyn Bond
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