1948 was the year of the Universal Declaration of Human Rights. Sixty years later – on the 10th December to be exact – it is worth looking at how these rights are upheld in practice and where they can be enforced. Rights that are only theoretical are close to worthless. Those that you can enforce are worth their weight in gold.
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 – in the rare cases when no member state vetoes the agreement – can impose sanctions or even send troops to impose peace and change a regime. But we see numerous examples – Dafur is just one the most recent – where basic human rights both for individuals and for communities are trampled underfoot and a divided international community at the level of the UN can do very little to rectify the situation.
The International Court of Justice in The Hague is competent to judge disputes between states, and may do so in the light of the values that underlie the Declaration of Human Rights. But the Court does not pass judgment on cases brought by individuals. International law between states is not the same as human rights law which, in particular in its European form, opens direct access to justice for citizens against their own governments.
In some exceptional circumstances the UN has set up specific international tribunals to try politicians and military personnel accused of crimes against humanity; the former Yugoslavia and Rwanda are examples of this. To some extent these act as a deterrent to others who may be minded to push through their interests against the rights of “enemies” within their own state, be they individuals or minorities. But many more such abuses occur than there are special tribunals set up to deal with them.
At a more mundane level. UNICEF and UNHCR, for instance, help children and refugees respectively to reassert some of their rights when they are infringed, offering at least the palliative of practical alleviation and support, though seldom the prospect of restoring the status quo ante.
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. This was a problem well known to those who promulgated the Declaration, seeing it essentially as the “conscience of humanity”, a point of reference but not a procedure, legal or otherwise, through which those who denied such rights could be brought to justice. It was the West European states of the Council of Europe that first went that extra mile just a few years after the UN adopted the Universal Declaration. They adapted the Universal Declaration to the European context, agreed the European Convention for the Protection of Human Rights and Fundamental Freedoms, and set up the European Court of Human Rights to enforce it. Human rights as much as truth are often the first casualty of war, and setting up an enforcement mechanism was a remarkable step for states to take which had just emerged from six years of worldwide conflict.
European states knew very well what they were doing when they drew up the European Convention. 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. This places its legal order – as far as human rights enumerated in the Convention are concerned - under the authority of a supranational Court. In the case of the UK it recently took the specific step of formally incorporating the Convention into national law, unambiguously making the Convention justiciable in UK courts.
The Convention was negotiated in 1950 by the ten original members of the Council of Europe – 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 a few years later, in 1959, the European Court of Human Rights 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.
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. States did not submit to the authority they had created through the Convention without a certain degree of reluctance. It was not until 1998 that new “rules of engagement” between states and the Court, consolidated in Protocol 11, came into effect. From that date the Court itself rules on the admissibility of cases, and individuals have a direct right of access to it, once they have exhausted national procedures. That consolidation led to a massive increase in the caseload of the Court, with 90% of the nearly 10,000 judgments delivered in the last ten years of its existence.
A glance at the table of violations by article of the Convention and by member state throws up revealing differences. In principle you might expect large states to have numerous problems, and that is true for Turkey (1857 judgments) but slightly less so for Russia (579) despite the backlog pending. Spain with 39 judgments compares well with Poland – a comparable size population – where the Court has delivered 601 judgments. Most violations concern article 5, the right to liberty and security, article 6, the right to a fair trial and excessive length of proceedings, but some countries (Ukraine, Russia, Turkey, Romania and Italy) fall foul in particular of article 13, the right to an effective remedy and the first Protocol on the right to property.
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 cases relating to invasion of privacy.
Member states have not abdicated all authority to the Court, however, despite the lack of efficiency that this may entail. Changes to the Court’s procedures are still subject to unanimous approval by all member states of the Council. They have to negotiate a new Protocol, 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 decisions 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 limits of the supranational legal order show up clearly in this detail.
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.
Some other regions of the world have followed in Europe’s footsteps, but the progress they have made is at best modest. The American Convention on Human Rights was established in 1969 (and came in effect after much delay in 1998) and the African Charter on Human and Peoples’ Rights in 1981 (in effect in 1986). In each case the participating states set up a Commission, effectively dominated by the participating states – in the Americas in Washington and in Africa in Gambia. Subsequently they established a Court, in the Americas in Costa Rica, and in Africa in Tanzania. While the American Court has a modestly independent track record from its establishment in 1979, it is too soon to pass judgment on how well the African Court, which was only established in 2005, will cope with the range and seriousness of human rights abuses in the member states of the African Union. It takes a lot more than rhetoric – and even goodwill – to create and sustain an international legal system that can condemn governments in favour of litigant citizens.
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 we take for granted are being consolidated in the 47 states of the Council of Europe – and a fortiori in the Europe of the EU’s 27 member states. It is part of the dense pattern of interdependence that has grown among European states during the past two generations, spilling over many areas of daily life, from a common market to migration, from citizenship to continent-wide elections, from security policy to defence. And it stems in no small part from the first step to make key elements of the UN Declaration enforceable. 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.
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