Can Europe Make It?

The roots of the European Court of Human Rights and democracy

A reply to Marco Duranti’s premise as published on openDemocracy, that “The Strasbourg court is anti-democratic, just as its founders intended.” 

Ersan Sen Mahmut Can Senyurt
30 October 2013

Marco Duranti claims that the aims of the founders of the European Court of Human Rights (ECHR) were not democratic ones, and that the ECHR was in fact designed to secure the concept of “property rights” instead of social rights such as “the right to labour and social security” or “the right to health” as set forth under European Convention on Human Rights. He describes this as a consequence of the underlying attempt to defend western Europe against totalitarianism either of the newly established communist regimes or a recrudescence of the fascism recently defeated in the Second World War. Hence, the Convention was itself an “anti-democratic” or “reactionary” document, which, moreover, betrayed some of the fundamental principles guaranteed under the 1948 Universal Declaration of Human Rights.

Duranti explains that the Strasbourg court acted with caution in its early years, concerned that states would withdraw their recognition of its supranational judicial competence, if it strayed beyond its declared purposes. However, the Court did choose to interpret the provisions of the Convention regarding right to life and right to fair trial broadly, by extending that to cover the right to health and social security. Some circles have indeed criticized this broader interpretation as “judicial activism”. But in our opinion, this approach is entirely fitting with respect to the philosophy behind both the foundation of the European Court of Human Rights and the European Convention on Human Rights together with its various additional protocols, and should not be treated as if it were an alien development.

Marco Duranti states that the political origins of the Court, which he associates with neoliberal proponents of European unity, and also with French far right circles, left a deep mark on the prevailing concept of  “Human Rights”, so that the right to ownership was given far broader protection compared to social rights.  

According to Duranti, instead of fighting against communism and fascism, the Court primarily set about controlling and restraining totalitarian and majoritarian tendencies within the democratic countries of the EU, alongside similar elements in the European institutions. The author finds this impulse perfectly understandable after two world wars and the sudden collapse of the Third Reich. Hence the preoccupation with finding preventative mechanisms for controlling the willpower of the majority in order to protect European publics against totalitarian regimes, in the name of democracy and the protection of human rights.

In our opinion, the European Convention on Human Rights, rather than protecting or guaranteeing the rights and freedoms of individuals recovering from fascist oppression during the Second World War was implicitly but broadly intended to serve the purpose of maintaining the capitalist system, and protecting the wealth, power, and privileges especially of private ownership on the part of liberal individuals. These privileges would be guaranteed for a “United Europe” by means of a “supranational judicial power”.

While the European Court of Human Rights had little practical impact until the 1970’s, and in the case of Turkey, the practical results of the right to take individual cases to the Court began to take effect only in the beginning of the 1990’s, nevertheless we should note that, under whatever implicit or stated intentions and purposes it was adopted and the Court established, the European Convention on Human Rights, including in the Turkish Republic, made a serious contribution to the development of human rights and freedoms from its beginning in the 1950s. This led the way to mutual national and international acknowledgement of various fundamental principles regarding human rights, the protection of freedoms and their actualization.

It is a matter of fact that in principle, this supranational judicial power limits the sovereign powers of the judiciary of every country and is therefore a challenge to their powers of administering their penal codes. However, international society has experienced ongoing concerns that have made it more not less essential to have this kind of supranational judicial power of legal review over the acts and transactions of the public powers affecting domestic laws. Two problems arise from this necessity however. Firstly, it is important to be seen to approach the various nation states and their societies equally and fairly. Secondly, there is the challenge of making sure that the decisions of the supranational judicial power can be effectively enforced. At the present time, it is evident to all that these challenges cannot be overcome by the current structures of the supranational judicial powers of the EU.

In the near future, the European Court of Human Rights risks facing a loss of its existing prestige, due to too great a work load, delays in decision-making and problems in effectively enforcing its decisions within the domestic laws of the member nations. This is because what maintains the legitimacy of legal institutions is not confined to the will power of the representatives who once founded these institutions. Ultimately, their legitimacy can only be guaranteed by the public will that chooses their representatives and the continuing belief in those institutions of the individuals who make up the public. The weakening of this trust may well turn any supranational judicial power which is already struggling, into an ineffective formal cipher.

In conclusion, laying to one side the disapproval of some sovereign and independent states where non-objective attitudes prevail, and also ignoring the ineffectiveness of certain of the Strasbourg court’s decisions against some powerful states, it is beyond dispute that up until today, these supranational judicial powers have contributed to the development of human rights and freedoms in Europe and beyond.

Denigrating the European Court of Human Rights based only on scandalmongering around the implicit intentions of its founders, ignores all the genuine contributions it has made to human rights and individual freedom. Of course, the creators of a powerful new structure may have very different intentions and aims from those who come afterwards. At least this is worth entertaining as a distinct possibility.

Meanwhile, we search for the principles to be found in natural law such as good faith and honesty under positive law, in vain. Everybody, especially the subjects of international relations, looks out for his or her own interests and for the protection of his or her benefits. They want to see any supranational power structure established on the basis of the benefits and requirements that they have internalized. In our opinion, this approach is perfectly natural even if it is not the best way to proceed. It is possible to see the distorting effects of self-interest in most parts of human life. What is important is to be successful in giving an institutional life to the idea of a European Court of Human Rights that is faithfully serving human rights and freedoms now, whatever exculpation is required for any negative situations that occurred in the past.

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