By Professor Dimitrios Giannoulopoulos, Head of Department, The City Law School
Once again, we are confronted with the politicisation of the European Court of Human Rights. But at the highest political level, and not just in the UK, this time. Nine European governments have issued a joint letter where they express the wish to ‘launch a new and open-minded conversation about the interpretation of the European Convention on Human Rights’ (in relation to immigration), explaining they want to ‘restore the right balance’ and that they will work together to further this ambition.
The Italian and Danish PMs are leading on this initiative, with Austria, Belgium, Czechia, Estonia, Latvia, Lithuania, and Poland co-signing the joint letter. Interestingly, the UK is not one of the signatories, when it has arguably been the member of the Council of Europe that has been making the most (deafening, at times) noise about its dissatisfaction with modern interpretations of the Convention and its willingness to moderate the effect of the ECHR in the UK if not to withdraw from the Convention altogether.
The letter starts with the co-signatories reaffirming their ‘firm belief’ in ‘European values, the rule of law and human rights’, their commitment to ‘a rule-based international order’, ‘the inviolable dignity of the individual’ and ‘role of multilateral institutions’. It continues with strong statements about the signatories being ‘leaders of societies that safeguard human rights’, for whom these ‘rights and values […] are both crucial and fundamental and […] constitute cornerstones of [their] democratic societies’. You can sense a ‘but’ coming (in the letter) at this point. ‘It is necessary to start a discussion about how the international conventions match the challenges that we face today’, points out the letter, going on the reverse on the ‘firm belief’ in everything that preceded this observation. ‘What was once right might not be the answer of tomorrow’, and the ‘the world has changed fundamentally since many of our ideas were conceived in the ashes of the great wars’, we read next. These enigmatic proclamations about our world take concrete shape and the focus is finally placed on what has motivated this letter when we are then told that ‘we now live in a globalized world where people migrate across borders on a completely different scale’, that ‘irregular migration has contributed significantly to the immigration to Europe’ and that some migrants have ‘chosen not to integrate, isolating themselves in parallel societies and distancing themselves from our fundamental values of equality, democracy and freedom’, while others ‘have chosen to commit crimes’. In other words, the letter offers legal migration, illegal migration, and failure of integration policies, including where they manifest themselves through the actions of criminal foreign nationals, as a diagnosis of what has fundamentally changed in our world, before suggesting that the remedy is something to do with the ECtHR, more specifically ‘a need to look at how the European Court of Human Rights has developed its interpretation of the European Convention on Human Rights’, since the Court ‘has extended the scope of the Convention too far as compared with the original intentions behind the Convention, thus shifting the balance between the interests which should be protected’.
In showing quick reflexes, and continuing to provide critical reflection on the Convention, through his writings and public engagement work, the former President of the Court, Robert Spano, set out some of the flaws and misconceptions that underpin this letter; I should note, in passing, that former Judges contributing expert opinion on how the Court operates or what its jurisprudence on particular matters may signify, including Judges who have reached the highest echelons within the organisation, is timely and important, considering that the Court and international human rights institutions more generally are under sustained pressure from the parts of the political world and actively targeted by channels of disinformation; this means that historic approaches that required Judges to be ‘circumspect especially about politics and their work on the bench’ (see e.g. in relation to the UK, Joshua Rozenberg’s analysis of the report by Patrick O’Brien and Ben Yong on ‘Work in Judicial Retirement’) may now be obsolete, simply on account of the seriousness of modern threats to judicial independence – we more than ever need ‘our’ Judges to have the capacity to intervene, to shed light on what ‘their’ courts do, at the very least where we (and they) are confronted with misinformation, disinformation and propaganda.
Judge Spano does not offer any such direct characterisation (of misinformation, disinformation or propaganda) in relation to the joint letter. He does, however, appropriately diplomatically, point out that the ‘drafting and clarity of th[e] letter leaves much to be desired’. He highlights that it seems to adopt an approach that can undermine the separation of powers (when he discusses the proper procedural avenues for Governments seeking to influence jurisprudential developments at the Court), while also observing that the letter ‘is based on a misunderstanding of the current state of Convention law’, in relation to the expulsion of migrants convicted of serious criminal offences (a clear-cut case of misinformation, in other words).
With more space in his Verfassungsblog blog (compared to Judge Spano’s 3000 character-limited post on LinkedIn), Prof Peter Hilpold provides a more holistic view of ‘the political and ethical questions but also significant legal concerns’ that the letter raises. To focus on only one strand of his analysis, he is of course right to highlight (as a concluding observation) the logical fallacy between migration as ‘a serious challenge for Europe’ and ‘national governments fail[ing] to find viable solutions’, on the one hand, and resorting to ‘attacking the ECHR’ instead, on the other. This, I would add, offers a description of an axiomatically populist strategy that presents the Courts as an elite that is agnostic to, and antagonises, ‘the people’ (for analysis see Jan-Werner Müller, What is Populism, University of Pennsylvania Press, 2016). Where the Court is an international one, this populist narrative obtains new urgency by nationalistic references to the domestic legal system, and broader cultural values, that are misunderstood, ignored and ultimately threatened.
I would like to contribute a few additional thoughts to analysis on the motivations and significance of the joint letter, and deconstruct reactions to it:
1) The signatories are concerned about how far away from the original text the Court has gone in interpreting the Convention. However, the interpretation of an international human rights Convention is not a matter for the governments whose actions it concerns, but for the judiciary, i.e. (a) the Judges at the ECtHR who come from the 46 contracting parties and who, in their various judicial formations, provide such interpretation, drawing on international human rights law and its interpretation and application in the domestic courts of the country/ies in question in the specific case(s) before them; and (b) the Judges in the domestic courts that draw upon and directly apply the Convention, who have the responsibility (and are best placed to) navigate the intricacies of domestic and international human rights law. In ignoring the above, as well as the opportunity that domestic government lawyers have to influence the Court’s jurisprudence on a case-by-case basis, the letter risks undermining judicial independence at the ECtHR.
2) The letter expresses disbelief about people who ‘come to our countries and get a share in our freedom and our vast range of opportunities, and, indeed, decide to commit crimes’. It exhibits ignorance of theories relating to ‘causes of crime’, in this way. If freedom and a vast range of opportunities were enough to deter people from committing crimes, no one living in countries where they supposedly enjoy these benefits would ever commit a crime, regardless of whether they are a citizen of the country or ‘foreigner’ (a resident of the country). That the governments co-signing this letter would for some reason distinguish the criminal acts of foreign criminals from those of their own citizens does not only reek of xenophobia, it is also counter-intuitive; from a certain angle, if we were to apply this (flawed) logic further, governments should perhaps be even more aggravated where their own citizens, who will have for much longer – and more fully – enjoyed the freedom and opportunities given to them, commit crimes; enjoyment and respect of these values will have been even more intrinsic to them (compared to ‘foreigners’) and their social bond, which gives them something to lose through crime (according to one of the most influential works in twentieth-century criminology, Travis Hirschi’s – 1969 – Causes of Delinquency), will have in most cases been much stronger (compared to that of foreigners, again). Where there is lack of this type of attachment, individuals are more prone to deviate from criminal laws, Hirschi’s theory tells us. To sum this up, citizens may have much less of an excuse to commit crimes – vis-a-vis ‘foreigners’ – and national governments should therefore refrain from xenophobic narratives that isolate and ‘other’ the latter.
3) The following sequence of communications from the Secretary General of the Council of Europe, Alain Berset, also merits analysis, in view of the partly nuanced content and fragmentation of the messaging. With a formal statement published two days after the publication of the joint letter, Berset underlined the ‘independence and impartiality of the Court as [the CoE’s] bedrock’ and issued strong warnings against ‘politicizing’ and ‘weaponizing’ the Court. He even replied directly to the Italian PM, Giorgia Meloni, on social media, stating that the ECHR is a ‘cornerstone of the European legal order’ and ‘the cradle of European law’; Meloni’s post was triumphantly concluding that there can be no rights without security (I am paraphrasing) and that ‘Italy is there [for this battle]’ and ‘leading this change’. Berset went on to invite Meloni to ‘meet in Rome or Strasbourg (Argentoratum) to discuss the questions [she had] raised’. In an interview with Le Monde, on June 5th, he again underscored the themes of ‘politicisation’, as a threat to the Court, and allowing for concerns to be addressed at the ‘political level’, as the way forward. While all this consistently underpins the categorical approach required, to defend the Court and the rule of law, in the face of the coordinated attack from the nine co-signatories, in an interview with The Times, published (behind a paywall) in between the above communications, Berset seems to have sent a more reluctant message (or been portrayed as sending one). The Convention’s binding legal text ‘should be reformed’, to ‘face growing backlash against migration’, Berset is essentially reported as saying. The following interview passage comes dangerously close, I would argue, to echoing the narrative developed in the joint letter:
‘We are witnessing a world where things are changing rapidly […] It is accelerating. We see this, and it means that it is normal that we must also adapt to this. We need adaptation. We need discussion about the rules that we want to have, and there is no taboo.’
Whether it was the sheer act of speaking to the ECHR-hostile British press that provides sufficiently convincing an explanation of why Berset may have resorted to a more nuanced defence of the ECHR (to put it mildly) when addressing the British public or whether this was simply The Times isolating, and exaggerating, the part of the interview most in tune with the political climate in the UK, to satisfy a particular audience, is difficult to tell. It is in any case disconcerting to identify that the Council of Europe is perhaps itself beginning to doubt the orthodoxy of the archetypical position that concerns its relationship with the contracting parties, especially when seen through a modernist, cosmopolitan lens; this liberates the Court from continuously agitating over the risk of disrupting state sovereignty with its jurisprudence, in view of the fact that it is the contracting parties themselves who have invested the Court with the authority to ensure the observance of their engagements under the Convention (see e.g. Article 19 ECHR) and who have given the Court jurisdiction concerning the interpretation and application of all matters relating to the Convention (Art 32 ECHR). The Court’s work in interpreting the Convention as a ‘living instrument’ should be guided by the ‘desire to constantly reinforce individual rights’, not by domestic politics (see Patrick Wachsman, ‘Réflexions sur l’interprétation “globalisante” de la Convention européenne des droits de l’homme’ in Mélanges Jean-Paul Costa, ‘La conscience des droits’, Dalloz, 2011, 667).
In his recent post on ‘human rights reform in the UK and in Europe’, Professor Mark Elliott observes that we are confronted with an ‘era-defining’ choice between ‘the universality of human rights’ and treating human rights as a luxury, that we can afford only when adherence to them is ‘politically inexpedient’. That nine European countries have come together to contest the continued validity of Strasbourg jurisprudence is a watershed moment; how strong human rights reflexes civil society, legal experts, academic scholars, our politicians and broader public can exhibit will determine which direction European societies will take.
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