Credits: Antenor Hallo de Wolf
An Interview with Dr. Marco Duranti on the Historic Background of the European Court of Human Rights
By Alina Piekuszewski and Paula Wagner
In the context of the course International Human Rights Law in Practice for our LL.M. International Human Rights Law at the University of Groningen, we had the honor to interview Dr. Marco Duranti on the historic background and the foundation of the European Court of Human Rights.
Dr. Duranti is a Senior Lecturer in Modern European and International History at the University of Sydney and dedicated his research to European history with a special focus on history of the European Court of Human Rights (hereinafter: ECtHR), the European Convention on Human Rights (hereinafter: ECHR), and the United Nations (hereinafter: UN) human rights system. Dr. Duranti also is the author of the book “The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention”.
The interview featured here is an excerpt from a more extensive interview conducted with Dr. Duranti.
Dr. Duranti, what was the political climate like when the ECtHR was created? And was the Second World War crucial to take into consideration on this matter?
The Second World War was really important. I also think that there were a lot of continuities between the period before the Second World War and the period after the Second World War. I just want to frame this by saying that the people who were involved in creating the ECtHR – and I say creating the ECtHR because they were very involved inventing this idea of a supranational court and inserting that into the ECHR in addition to selecting what kind of rights would be protected – saw what they were doing as a continuation of their long-standing intellectual and political endeavors that preceded the Second World War. I do not think almost any of them would have been using the phrase “human rights” before the Second World War. In the English language, the phrase “human rights” is really just an innovation of the UN Charter – in intercontinental European English there were all kinds of other phrases that are used. These people were not people that would have really been naturally attracted to international or supranational human rights but they still thought that this would qualify as a continuation of their earlier projects to promote the unity of European civilization and protect fundamental liberties.
The Second World War is very important and there is no question that the ECHR is an anti-fascist document. It is also no question that it is also an anti-communist document, which I think is important to note because until early 1948 there was still this hope within Europe and the world that the communists and non-communists could – for all their differences – form an anti-fascism coalition after the war whether it was in governments or at the UN or another international floor. The ECHR was part of the destruction of this alliance between the communists and the non-communists. So it was anti-fascist and anti-communist, but then it was also something more than just anti-fascism and anti-communism. There were a lot of people that were anti-fascist that were against having the ECHR and there were other people who were anti-communist that were also against it – so logically, that is not on its own sufficient. The argument I made was that to be sufficient and to actually have a human rights treaty – not only a non-binding Universal Declaration of Human Rights of the UN Human Rights Commission (hereinafter: UNHRC) – you need to have a court with jurisdiction over the domestic activities of states, which was even more revolutionary; you needed to have this impulse that I called conservation one.
Were there any states in particular worried about their sovereignty regarding the relationship of the supranational court that would then become the ECtHR with their domestic courts? And – from your point of view – how do you assess the current stance of the Council of Europe member states on the ECHR in general?
For this, we have to step back and think about the context after the Second World War, which was a really chaotic moment – a moment of fears over renewed wars, revolution, and fascism and also a moment of excitement about reconstructing Europe and creating entirely new social and political systems. What Europeans were most focused on after the war was not European integration of human rights but constructing their economies and building new society and creating welfare states. Their focus was at home. And the people who were most resistant to having supranational institutions interfering with their domestic affairs tended to be the people who did not want supranational institutions interfering with their efforts in creating socialism at home. You have to remember that Europeans also just had been occupied by the Axis Powers, so they were not exactly eager to just go from occupation to ceding their sovereignty over again to a supranational institution. I argued that it was not because of the states that were really involved that the Convention was adopted. It was because these NGOs and “celebrities” managed to put the idea on the agenda, pushed it and forced the states into this position where they had to adopt this Convention. This development became very quickly superseded by other events, like the Korean War, and with other kinds of things taking over and people forgot about it for a while. The Council of Europe (hereinafter: CoE) was faltering and looked to be a complete failure.
I think it is really important to understand the origins of the ECtHR because it shows you how something that is so revolutionary and remarkable can actually happen, even if there is not really support from most people and probably most of the public opinion. Most of the states involved were not particularly supportive – but the ECtHR was established nevertheless. And this shows what can happen when single individuals who end up being potent or are who are influential in different ways are getting invested in human rights projects because they think that they align with their values and interests.
If you do not have people believing that these human rights treaties align with their values and interests then they are not going to be in favor of this. You need some people really believing in it and it helps to have a very charismatic figure like the British Prime Minister, Winston Churchill. Even though he was not the one who drafted the ECHR, he had this amazing magnetism and ability to drag the media and the force behind the idea of a European Court of Human Rights. Furthermore, you had some very influential Christian democrats and Catholic politicians also giving it their support.
The second question is a huge question and I do not know if it is in my remit as a historian to answer that question. However, it could be considered ironic that the Convention was created basically as this instrument for conservative values and interests. And by “conservative values”, I mean this nostalgic idea of re-creating Europe based on foundational Christian humanist values – this as the conservative cultural vision behind the ECHR.
The other one was that it was an anti-statist document, fundamentally restricting the power of a central state to interfere in economic and social affairs. There is an irony that a lot of the push-back to the ECHR today is done often by people who are right-wing even though I would say that the conservatives who were behind the Convention were libertarian conservatives. They were anti-statist conservatives and while some of them may had issues with liberalism, they were a lot more liberal, particularly the British ones like David Maxwell-Fyfe or Winston Churchill. All of them, no matter what – even the libertarian conservatives – they had their own reasons for being fearful of the state.
This is ironic because the British people who drafted the Convention thought of it as a very British document. They thought this would be embodying ancient English liberties as the most British thing they could think of. But there was a push-back within the conservative party and it was this residual group of liberals and the conservative parties who were basically saying: “We may need this Court by the way. There also are socialists in our country and courts are generally a good thing – and conservationists like courts upholding individual freedoms and the rule of law and all that”.
The United Kingdom is the main place where you had the first real big controversies over the ECHR which was over caning school children. The British were the last in Europe that were beating their school children. In the early 1980s, there was a ruling by the ECtHR (Campbell and Cosans v the United Kingdom) in which the ECtHR – except for the British judge – said that if schools were beating their kids, caning or belting them, this would be violating the right to education under Article 2 of the First Protocol. Interestingly, the ruling was not about the ban on cruel and unusual degrading punishment itself but about the ban of parents having the right to decide their children’s philosophical religious upbringing. Parents should be able to request that their children be exempt from getting hit. This was a source of enormous controversy. If you look at the number of newspaper articles and parliamentary debates in which people talk about the ECtHR in the UK; it is massive and this is when the first big backlash started against it. There is no other country at this time where the ECtHR has this kind of visibility. It ends up leading to the abolition of corporal punishment in schools four years afterwards. It is noteworthy that the ECtHR was very crafty as it framed this punishment falling under the scope of parental rights, which the conservatives were for and which were trying to give parents more choices in the education of their kids.
That was the first place but even then – you can see within the conservative party – there were the liberals who were like lawyers and the people portraying the law, and then the traditionalist types who were advocating for bringing back the birch. You see that then, you see it now: within conservative parties within continental Europe, I do not think the ECtHR is quite the object of major public discourse or controversy like it is in the . (An example for the ongoing controversy is the political efforts of the United Kingdom to withdraw from the ECHR and to establish of a British Bill of Rights.) Overall, I do not think we can make it a universal type of thing. Let’s not forget the kind of left-wing Euro-skeptics that generally still hearken back to the old socialists, who are not usually enthusiastic about supra-national institutions.
Reading the preparatory works of the ECHR, we stumbled upon the controversy of the possibility of individuals bringing claims against their own home states before the supranational court. Do you have something to say about that?
Yes, this was absolutely envisioned. I am always going back to the UDHR because I think that there is a huge divergence between what happens at the UN and what happens in Europe. There is this myth that the ECHR is based on the UDHR, but in the beginning they made no reference to this document. It was only later that they felt forced to add the UDHR articles in the draft, because they had been accused of not following the UN model, so they retroactively put it in. Consequently, at the UN Human Rights Commission there was one delegate that proposed a Human Rights Court. The Australian delegates – Colonel Packson and Herbert Ebbet – had also proposed this idea before but were laughed at. Their idea was seen as preposterous and laugh-able and they even said themselves that the idea was totally utopian and not conform with the way courts work in Europe. They could not even get a treaty, much less a court.
But the fact that there is this individual petition is huge and René Cassin – the French delegate at the UN – wanted an individual petition, but he did not even imagine a Court. But not only that, David Maxwell Fyfe – the British politician and former Nuremberg War Trials prosecutor – wrote in a memo that he envisioned this specifically as a supranational entity, in which the Court would have supranational jurisdiction in what he called “municipal law”. He saw this entity as overriding states and municipal law and specifically stated that this is without precedent in Britain and in Europe. Consequently, this entity was not formed organically.
There is this other idea that exists, namely that the ECHR represents this overlapping consensus among Europeans. However, this is not true. Many parts of the ECHR are actually very controversial. The original drafters envisioned that this Convention is going to override the local courts to be a truly supranational entity.
When reading the transcript of the first session of the Consultative Assembly that was held by the Committee of Ministers of the Council of Europe, only men were present and speaking. Were there any women involved in the process?
This is a great question. If you look at the drafting of the UNHRC, the chair of the commission was Eleanor Roosevelt, who was the widow of US President Franklin D. Roosevelt and herself a feminist and activist for African-American civil rights. She chaired this commission which had some very prominent women in it. So you see, the UNHRC were overwhelmingly men – but there were prominent women.
If you look at the ECtHR, the first draft presented to the CoE did not have women listed as one of the categories in the anti-discrimination clause. It was only the Swedish delegate who was outraged at this and kind of shamed the people in this legal committee to insert a prohibition of discrimination on the basis of sex. That gives you a little bit of a sense. Hersch Lauterpacht – who was one of the most famous British national lawyers and who wrote one of the first books on international human rights – did not list gender or sex as one of the criteria as well. So why was it like this? The sad explanation is that when it came to human rights at the UN this was due to the fact that they were not really taken seriously. Women had occupied a long history in humanitarian movements – a very important role whether it was international, transnational, or domestic humanitarianism. In my opinion, women being at the UN was seen as a sort of natural extension of this. But the business of the UN Security Council was in the hands of men. And when it came to actually drafting an instrument with binding legal force, they got politicians with law degrees involved who were then overwhelmingly men. You could say that is part of the conservative nature of the document.
One woman who was really influential and interesting was Hélène de Suzannet. She was one of the first women to be elected to the French National Assembly, right at the end of the Second World War. She had done a lot of great work during the Second World War, giving refuge to many Jewish children and refugees and helped the resistance. De Suzannet was one of the first ones at the Congress of Europe in May 1948, who proposed in this political committee that Europe should have a European Court of Human Rights. And she was very important, as a lot of people stood up and supported her. However, she was as a catalyst totally forgotten. But in her mind in a society with the rule of law, human rights are for your enemies, as much as for your friends. She was the main woman that I identified who was important.
Thank you, and finally we have a more personal question: Do you think the founders did a good job when they set up the ECtHR or would you have done anything drastically different?
We, as historians, do not like to answer these questions, because we have this positivistic fantasy that we are just timeless observers of history, where everything just emerges from the archives and we have no say in what we write. But an obvious point to start is that there is a clause in the ECHR to exempt colonial territories from having to have the ECtHR equally applied to them – the Territorial Obligations Clause. Even if you applied the ECtHR to overseas territories – to the colonies – even then there would be considerations of “local requirements” and the individual petition right would not have to apply necessarily. The “local requirements” is a euphemism for saying: “the colonial territories are not going to have the same rights”.
Consequently, the first human rights treaty has actually inscribed in it that not everyone has the same enjoyment of these human rights. I think this is at the heart of what this treaty was about: it was about European human rights and not universal human rights. Personally, would I have been in favor of restricting the rights of colonial subjects? No.
The other questions are thornier, because it is miraculous that this document was created in the first place. So anything we change would sink the document. For example, the Europeans who have been very proactive about getting a strong UN human rights system, retreated when the UN General Assembly suddenly started having all these newly independent countries, the anti-colonialist states, the communist states, so they said: “Wait a second, we do not want a strong UN human rights system anymore”. However, if we could happily remove the colonial clause, would the Convention have happened? No. Even so, personally out of my conscience, I would have voted against it.
You could also ask the question about there not being economic and social rights. Admittedly, the socialists wanted to include them in the ECHR but the British were dead set against it, as it did not accord with British principles on what is justiciable. Even so you could say they could have been inserted in there. Overall, I would choose to remove the Territorial Obligations Clause, just out of my own conscience, even though the ECHR would not have happened.
Thank you Dr. Marco Duranti for investing the time to address our questions with such thoroughness.
Bios:
Alina Piekuszewski graduated with an LL.B. in International and European Law at the University of Groningen and is now pursuing an LL.M. in International Human Rights Law at the same University.
Paula Wagner obtained an LL.B. in Business Law from the University of Applied Sciences Mainz and is now likewise pursuing an LL.M. in International Human Rights Law at the University of Groningen.