By Jacob MCHANGAMA
& Aaron RHODES
Judges at the court in Strasbourg have assumed activist role for too long
Last week ministers from the Council of Europe met in Brighton to consider British proposals on reforming the European Court of Human rights. The meeting concluded with agreements for timid tweaks to the tribunal, but didn’t touch the serious problems it faces. This is not surprising, given that the court’s judges and leading human-rights organizations are all resistant to meaningful change. But it is disappointing, because the same problems that hobble the European court in Strasbourg are endemic throughout the rest of the international human-rights machinery.
The U.K. failed to achieve fundamental reform in part because it did such a poor job of articulating the urgency of the task. Conservative leaders and pundits chafe under the court’s rulings that they consider intrusive, for instance its judgments constraining how Britain may deal with terrorists. The British proposals focused on making the court more deferential to the rulings of national courts, and thus fed the impression (however unfair) that they were driven solely by concerns over sovereignty rather than principle.
Proponents of the court counter that shortening its reach or weakening its independence would harm its ability to address serious human-rights violations in Russia and other non- or partly free members of the Council of Europe.
The president of the court, British Judge Sir Nicholas Bratza, said reform was unnecessary and has criticized the U.K.’s modest proposals as an attempt to “dictate” the tribunal’s case law. As evidence that some reform is clearly necessary, Westminster points to a backlog of more than 150,000 dockets. But according to Mr. Bratza, the solution is more financial resources, not changing the way the court operates. Major nongovernmental human-rights organizations have piled on against the reform proposals, arguing that the case overload only confirms the need for the court’s work.
Missing from the debate is any discussion of what is in fact the court’s most important problem: Judges who have assumed an activist role in interpreting the European Convention of Human Rights. The convention was adopted by the 10 founding members of the Council of Europe in 1950. Its original purpose was to codify the freedoms protected by liberal European democracies and thus serve as a bulwark against the reemergence of totalitarianism. But in the 1970s, the court began treating the convention as a “living instrument,” a development that has accelerated ever since. Judges have continuously interpreted the convention far beyond its wording and original purpose, inventing new rights and obligations that elected state officials never accepted and that have little to do with safeguarding liberty and the rule of law.
This trend has had a number of unfortunate consequences. By inflating the notion and legal definition of “human rights,” the court has diluted attention from serious human-rights abuses, while taking up trivial ones such as noise pollution that should not be adjudicated within the matrix of human rights.
Other rulings disguise social-policy choices as human-rights issues. For instance, the court has decided that the right to “peaceful enjoyment of possessions” includes a right to welfare benefits. But protecting welfare benefits as a right to property is a corruption of both language and concept. Belgian Constitutional Court Judge Marc Bossuyt noted as much in 2010, when he told the Gazet van Antwerpen: “If social support has become a property right, then the judges in Strasbourg have succeeded in making an owner of he who owns nothing. Even Marx had not been able to do that.”
The court’s involvement in the allocation of resources has effectively made it a political actor, though not a democratic one. Moreover, if the use of torture is on par with slashing benefits, why should repressive governments fear the stigma of adverse rulings?
Outside Strasbourg, international human-rights bodies have become increasingly subject to ideological influences, particularly since the 1990s. One need look no further than the recent statements of Amnesty International, indistinguishable from “Occupy Wall Street” fare. In January the human-rights major spent its time and resources on a campaign ahead of the World Economic Forum in Davos to warn that “Corporate malpractice has been allowed to flourish by government policies of deregulation and limited oversight. In the pursuit of profit, financial institutions have been given a free pass to create systems that expose the most vulnerable groups to exploitation.”
Everyone’s grievances can thus be transformed into human-rights violations. U.N. human-rights institutions and leaders include everything from a clean environment to world peace—yet they insist that all human rights are equal and indivisible. That puts one’s right to “equal opportunity. . . to be promoted in his employment to an appropriate higher level,” for instance, right alongside one’s right to live.
By and large, all cadres of human-rights professionals have embraced this trend, making human rights a growth industry for political activists and international civil servants. But victims of real human-rights abuses around the world—those who can not speak or pray or earn a living without fearing for their freedom or lives—are ill-served by this charade. International institutions and civil-society groups must once again become responsible custodians of the precious concept of human rights. Hopefully the botched Brighton meeting won’t end the reform effort.
Mr. Mchangama is head of legal affairs at the CEPOS think-tank in Copenhagen and co-founder of the newly formed Freedom Rights Project.
Mr. Rhodes is former director of the International Helsinki Federation for Human Rights and co-founder of the Freedom Rights Project.
Source: Wall Street Journal