How has the European Convention on Human Rights contributed to international human rights law - Dissertation Example

? HOW HAS THE EUROPEAN CONVENTION ON HUMAN RIGHTS CONTRIBUTED TO THE INTERNATIONAL HUMAN RIGHTS LAW? by 25 January How Has the European Convention on Human Rights Contributed to the International Human Rights Law? Introduction The twentieth century became a landmark in the evolution of the international human rights law. The atrocities of the Nazi regime and mass exterminations of humans during the two world wars led the world to review its attitudes toward the fundamental human rights. The European Convention on Human Rights was created with the goal of extending the coverage of the international human rights laws on European countries, enforcing compliance with the foundational standards of human rights protection, and ensuring greater integration among the European states. Since its inception, human rights protection has become the main aspect of states’ legislative and judicial performance in Europe. The contribution of the European Convention on Human Rights to the international human rights law is difficult to overestimate. The convention meets the standards of subsidiarity in the international human rights law and creates the foundation for interpreting the most controversial emerging human rights issues. Simultaneously, the convention by itself and its principles are not without controversy. Despite the significance of the European Convention on Human Rights, its effectiveness and results greatly depend upon the political and social atmosphere in European states; many states choose to enforce the Convention only for the purpose of membership in the European Union. As a result, the effectiveness of the European Convention on Human Rights is more virtual than real and does not extend beyond the actual court cases to tackle with the discrimination against the fundamental human rights. The European Convention on the Human Rights: A brief insight The European Convention on the Human Rights (further ECHR) is fairly regarded as one of the central elements of the international human rights law. Actually, the whole 20th century was marked with the emergence of new human rights protection frameworks. part of the reason for this was the tragic experience and mass atrocities experienced by Europeans during the two world wars. Another reason was that European states needed greater unity and integration, and a convention similar to the ECHR could glue the European states in their way to achieving the common economic and social objectives. This being said, the ECHR became the first and, probably, the most significant political and legal achievement of the Council of Europe in 1949 (Ware & Miller 1998). At that time, the Council of Europe was made up of only 10 states (Ware & Miller 1998). Nevertheless, “every member of the Council of Europe had to accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms” (Ware & Miller 1998, p.7). In other words, all member states of the EC had to enforce strict compliance with the principles and premises of the Convention. It is no secret that one of the main goals of the ECHR was European integration (Weil 1963). The philosophy of European integration was rooted in the pre-first-world-war conditions of politics, which suggested that fragmentation, separation, and opposition weakened European states in the fight for peace and stability. The idea of uniting Europe lost its relevance between the two world wars, and during the Second World War Hitler managed to unite Europe by force (Weil 1963). However, as soon as the hostilities were over, and Winston Churchill became a leader of the European movement toward peace, the idea of building a union similar to that in the United States, was revived (Weil 1963). It should be noted, that Britain made one of the major contributions to the development and implementation of the ECHR: the final version of the convention owed a lot to British ideas of human rights and European statehood (Ware & Miller 1998). Simultaneously, when it came to the definition of rights, the mechanism of enforcement, including the creation of a supranational human rights court, as well as the right for individual petition, there was little to nothing borrowed from British thinking (Ware & Miller 1998). To a large extent, the convention was not merely a new mechanism of enforcing compliance with the fundamental human rights but a good test to the saliency of the European states’ intention to create a single and coherent union. It would be fair to say that while the idea of European integration placed special emphasis on the problem of human rights, the latter also fueled the European movement towards integration. The two trends created a vicious circle of interdependencies, leading to the development and implementation of the ECHR. Since the moment the ECHR was signed and enforced, the membership of the Council of Europe (today, the European Union) greatly expanded to include almost all former countries of the communist bloc. More than 40 states have joined the EU throughout its history, and members’ compliance with the human rights conventions has become one of the principal measures of their commitment to democracy and human rights protection in Europe. Actually, whether or not states have an opportunity to enter the EU depends to a large extent upon the degree to which they are compliant with the principles of human rights protection. All countries-members of the EU are bound to enforce the ECHR and make it part of their domestic law (Ware & Miller 1998). Numerous amendments add value to the ECHR and update its principles to fit in the modern conditions of legal decision making. All parties of the convention must ratify every amendment, before it comes into force (Ware & Miller 1998). It goes without saying, that this order of things creates considerable difficulties in the EU’s way to the uniform protection of human rights across its territories. The eleventh protocol of the ECHR has become one of the major structural reforms in the context of ECHR enforcement. As of today, the main rights protected under the ECHR include: (a) the basic rights to life, security, and individual liberty; (b) the prohibition of inhuman treatment, punishment, and torture; (c) freedom from forced labor and slavery; (d) the right for a fair criminal or civil trial; (e) prohibition of retroactive criminal laws; (f) respect for privacy and security of family life, correspondence, and home; (g) the prohibition of all forms of discrimination against the rights and freedoms secured by the ECHR; (h) freedom of religion, conscience, and thought; (i) freedom of expression, peaceful assembly, including trade associations, as well as the right to create a family and get married (Ware & Miller 1998). The ECHR and the principle of subsidiarity: the contribution and congruence The international human rights law has been always characterized by an inherent tension between its universal principles and the diversity of legal, democratic, and cultural principles enforced by the states. On the one hand, all states are expected to comply with the principles of human rights protection; on the other hand, the cultural and political differences in the way they interpret these principles should not be disregarded. Remember the words of Eleanor Roosevelt: “Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm or office where he works” (Carozza 2003, p.38). In other words, the protection of the fundamental human rights begins at the bottom of the social hierarchy, from the protection of individual rights and opportunities, and further transcends to create a global atmosphere of human rights protection in the world. The main question is what can be done to ensure that supranational frameworks of human rights protection, including international human rights law, do not discriminate against the diversity of legal cultures in the world (Carozza 2003). Another question is how to ensure that supranational human rights protection frameworks do not abuse against states’ sovereignty and the right for independent political decision making. The implementation of the ECHR has become a partial response to the sovereignty concerns expressed by member-states in the international organizations and contributed greatly to the principle of subsidiarity in international human rights law. The European Convention on Human Rights is an important reflection of the principle of subsidiarity in international human rights law and, simultaneously, an instrument that helps to retain a reasonable balance between the supranational character of international human rights treaties and the diversity of legal customs and traditions in united Europe. The idea of subsidiarity as such is deeply rooted in Western political thought, and was later adopted as an essential ingredient of the European Union’s political and legal philosophy (Carozza 2003). However, despite its legal and political significance, the ECHR alone could not guarantee the relevant and continued protection of political diversity within the European Union. To a large extent, the ECHR laid the groundwork for the implementation of other, more relevant and efficient legal mechanisms, such as the Charter of Fundamental Rights of the European Union (Carozza 2003). The latter was adopted in 2000 and, for the first time in the history of European integration, extended the power of subsidiarity and diversity to the human rights arena (Carozza 2003). Even despite these developments, the relationship between human rights protection and subsidiarity in the European Union remains unclear. The European Court of Justice is believed to reiterate some of the most important elements of subsidiarity in European human rights law (Carozza 2003). Discussions of subsidiarity in human rights law are but rare, and the constitutional limitations set on the EU by member states do not allow for devising a single and effective system of human rights protection across them. Simultaneously, the structure and idea of the European Union, the ECHR and other legal developments create a self-complementary picture of subsidiarity in international human rights law, with rhetorical and conceptual harmonization of supranational human rights principles on the one hand, and the protection of local differences and pluralism on the other (Carozza 2003). The contribution of the ECHR is in that the Convention exposed the deficiency of supranational uniformity in international human rights law and, simultaneously, created a precedent for the protection of diversity and differences at the national and local levels. As of today, the ECHR presents a unique example of human rights protection laws that, on the one hand, sustain a reasonable balance of uniformity and diversity and, on the other hand, makes possible to address and interpret the most serious and controversial modern legal issues. The ECHR and homosexuality: Resolving the global dilemma The European Convention of Human Rights provides vast opportunities for resolving and interpreting the most controversial legal, social, and cultural dilemmas. At the end of the 20th century, homosexuality has become one of the major sources of legal controversy in Europe. European countries had long been committed to the old values of marital faithfulness and heterosexual reproduction, but negligence to the issues of homosexuality could threaten Europe’s image as one of the most active world’s protectors of equal gender rights. The emergence and openness of homosexuality in the European legal landscape was closely associated with the principle of consensus inquiry inherent in European human rights law, as well as international human rights law. Simultaneously, increased attention toward homosexuality as a phenomenon closely related to the question of human rights, had to reestablish the ECHR as a living organism and a flexible instrument of legal decision making in light of the contemporary legal and cultural conditions (Helfer 1993). The consensus inquiry has always been one of the main cornerstones to the development of effective human rights protection laws in Europe. The ECHR by itself triggered the national and supranational concerns regarding states’ legal consensus over the most painful legal issues. The ECHR is expected to reflect the most recent developments in progressive regional standards, without intruding with states’ independence and sovereignty (Helfer 1993). Its structure and principles exemplify a unique lens through which the existing and emerging legal practices are to be evaluated (Helfer 1993). At the beginning of the 1990s, the claim of transsexuals to recognize their desired gender became the most troublesome aspect of human rights inquiry in Europe. Tribunals were required to analyze medical and scientific evidence, as well as the results of biological analyses and surgical operations (Helfer 1993). Most states came to rely on expert consensus in whether or not the decision to grant the recognition of the desired gender and the right to marry was in opposition with the ECHR (Helfer 1993). However, European states could not expect that the ECHR by itself would become the most reliable source of interpretations in the context of homosexuality and transsexualism. The fact is in that most tribunals could not achieve the desired consensus in terms of the meaning and legal implications of transsexualism. Also, member-states in Europe could not interpret and properly identify the cases of the ECHR violation against homosexuals and transsexuals (Helfer 1993). Courts were torn between the importance of protecting the foundational human rights, including the right for private life, family and marriage, and the confusing legal nature of homosexuality and transsexuality (Helfer 1993). In 1986, a Resolution on Discrimination Against Transsexuals was ratified in the European Parliament (Helfer 1993). The Condition of Transsexuals no. 1117 called for additional protection of transsexuals in the European legal landscape (Helfer 1993). The ECHR was the first and the major instrument of granting European transsexuals the right to have a new, desired identity and, in this way, positioned itself as an extremely flexible tool of legal decision making that reflected the major developments in the regional and state laws in Europe. Unfortunately, the ECHR does not suffice to demand states reform their laws in favor of homosexuals and transsexuals. Moreover, any state has the legal right to withdraw from the Convention, if its sovereignty comes under the threat of uniformity and supranational intervention (Helfer 1993). As a result, the precedent created under the ECHR is rather weak but, nevertheless, it presents an important example of change in international human rights law, which reflects the ongoing change in society’s beliefs about culture and social relations and makes possible to achieve the desired balance of freedom and social order in society. The ECHR and the national question: Muslims in Europe and their human rights Headscarves exemplify one of the most pressuring cultural, gender, and religious issues in Europe. The more Muslim students come to study in European Universities, the greater the tension between their religious convictions and those of the European majority become. Headscarves have become one of the major obstacles to the development of productive relationships between eastern newcomers and western natives. In the language of legal protection, the issue of wearing or not wearing headscarves is closely associated with the issue of the fundamental human rights, namely, freedom of religion and conscience, as well as the right to be protected from being discriminated against, on the basis of nationality, gender, sex, or any other individual characteristics. The issue of wearing headscarves in European universities and public entities was closely associated with and supported by Articles 9 and 14 of the European Convention on Human Rights. Although it took almost a decade to understand that headscarves and discrimination went hand in hand and all students and working immigrants in Europe had the right to express their religious belonging freely, the ECHR made a strong contribution to international human rights law in terms of interpreting the religious, political, and legal underpinnings of wearing headscarves in public places. In 2005, for the first time in Europe’s legal history and after several failed cases, the European Court on Human Rights created a rich ground for understanding the issue of wearing Islamic headscarves in public places in Europe (Vakulenko 2007). Although the European Court of Human Rights recognized the existence of the direct link between headscarves’ wearing and the risks of discrimination, it never came down to challenge the established laws and beliefs in EU member-states and relied on that part of Article 9 of the ECHR that limited individual rights of religious freedom to those “prescribed by law and necessary in a democratic society in the interests of public safety, for the protection of public order, health and morals” (Vakulenko 2007, p.189). Even despite the fact that the European Court on Human Rights denied a petition against states’ prohibition of wearing headscarves in public places, its contribution to international human rights law cannot be fully disregarded. To begin with, through the prism of interpreting the issue of headscarves, the European Court on Human Rights and the ECHR reestablished the primacy of religion over gender, in the issues that involve both aspects and affect the interpretation of the case (Vakulenko 2007). The issue of wearing headscarves is that which builds on the intersection of gender and religious discrimination, but the court and the ECHR ignored petitioners’ gender for the sake of another identity constituent – religion (Vakulenko 2007). Other international treaties and organizations may or may not accept this sort of legal interpretation, but that the court has created a serious legal precedent cannot be denied. Furthermore, the ECHR once again proved to be a strong defender of member-states’ laws and conventions, an instrument to protect states’ diversity and sovereignty against the uniformity of supranational human rights legislation. Although, based on the ECHR, headscarves were judged as those which threatened the stability and social order in democratic member-states, the ECHR once again proved to be a perfect reflection of the principle of subsidiarity that has been discussed earlier in this paper. Third, the issue of headscarves in ways it was interpreted by the ECHR and the European Court on Human Rights exposed the deficiency of the legal interpretations of gender and gender equality, raising the question to be resolved by other organizations and treaties in international human rights law (Vakulenko 2007). This, however, does not mean that the European Convention of Human Rights is absolutely unsuitable for making claims regarding wearing or not wearing headscarves. In reality, the ECHR provides rich grounds for interpreting and reinterpreting the issue of headscarves wearing, as well as the issues of gender equality and religious self-expression. In the context of international human rights law, this case suggests that the choice of proper legal categories is the defining element of justice and fairness in human rights decisions. For example, when it comes to wearing headscarves in educational institutions, Article 2 of Protocol 1 of the ECHR provides the justification by protecting the fundamental human right for education (Vakulenko 2007). Article 8 of the ECHR has the potential to clarify the situation with headscarves, by protecting the human right for respect of their private and family life (Vakulenko 2007). In this sense, the contribution of the ECHR to international human rights law is obvious: the case of headscarves and its interpretation through the ECHR sends the message of appropriateness, while choosing the most solid grounds for legal protection. International human rights law is characterized by a multitude of conventions, principles, articles, and protocols and the choice of the most appropriate one will predetermine the success of the case. The ECHR, expulsion, and the right to refuse medical treatment The ECHR adds to the general interpretation of expulsion, the risks of torture, and individual decision to refuse medical treatment. Since the ECHR is considered as a newer approach to legal decision making, its provisions and premises create a better picture of legal decision making than the rest of international human rights law. In terms of the expulsion protection, the ECHR reflects and contributes to resolving the dramatic human rights situation in the most problematic parts of the world. In many cases, the provisions of the ECHR concerning expulsion and torture serve the role model for other states to follow. For example, the deplorable human rights situation in the world fits perfectly well into the ECHR’s ban on refoulement under Article 3 (Alleweldt 1993). The ECHR allows withholding potential victims and keeping them from their real and potential tormentors, thus saving thousands of people inside and outside Europe from the risks of torture and ill-treatment (Alleweldt 1993). Certainly, the mere fact that the ECHR provides protection from the risks of ill-treatment and torture means that the countries-members of the European Union will have to provide financial provision and support to those coming to Europe in search of legal protection (Alleweldt 1993). However, the ECHR sets a broad example for dozens of other countries and international human rights organizations to follow, since there is nothing more valuable that human life, and even the biggest costs and problems caused by immigrants in host countries cannot overweight the relevance of fundamental human rights protection through the lens of the ECHR. The ECHR adds to international human rights law in the context of understanding and interpreting individual right to refuse treatment. The latter has already become a serious issue in the international legal circles, and the ECHR makes possible to balance individual interests against the interests of society (Wicks 2001). The ECHR claims that self-determination is the central principles of the human rights protection philosophy; simultaneously, the ECHR also implies that the human right for self-determination cannot be absolute (Wicks 2001). In this way, the ECHR provides an ideal framework to consider the cases of refusal from medical treatment, from the viewpoint of patients and their guaranteed right to choose how to live their lives. The ECHR contributes to the international legal understanding of the individual right to refuse treatment and implies that each individual has the right to choose the type of medical treatment to be applied on his (her) body and refuse from the treatment he (she) deems to be inappropriate (Wicks 2001). All these conventions provide theoretical justification of the fundamental human rights, but what about real effectiveness, and does the ECHR contribute to the effectiveness of international human rights law? The ECHR’s contribution: virtual or real? Everything said in this paper has unprecedented theoretical value. Unfortunately, the ECHR by itself displays a number of inherent deficiencies and controversies. The benefits of the human rights protection under the ECHR often does not extend beyond actual cases. Although the ECHR contributes to the international understanding of the most urgent legal and social issues, most issues remain persistently unresolved. For example, despite the growing importance of homosexuality and gender issues in Europe, transsexuals and homosexuals receive little legal support in Europe (Helfer 1990). The issue of consensus and the consensus inquiry continue to generate serious legal controversies in Europe (Helfer 1993). The decisions and claims under the ECHR touching headscarves’ wearing in Europe have been largely unsatisfactory (Helfer 1993). Eventually, most premises and provisions of the ECHR are limited by sovereignty considerations; in other words, the justifications provided by the European Court of Human Rights and the European Union and human rights commissions may not suffice to persuade signatories accept the same viewpoint (Helfer 1993). In no way should the ECHR interfere with the sovereignty of the European member-states, as the latter have the full right to withdraw from the Convention or refuse to renew the right for individual petition for its citizens (Helfer 1993). These sovereignty considerations place severe constrains on the amount of decision making force exercised by the European Court of Human Rights; as a result, the contribution of ECHR to international human rights law reduces to a minimum and, often, does not extend the boundaries of theoretical application and thinking. Another question is in whether or not transnational human rights treaties really work. Really, the ECHR’s contribution to international human rights law should be also judged by the amount of cases the ECHR allows to resolve and the extent to which it improves the lives of individuals and societies in Europe and beyond. Certainly, all citizens have a duty to participate in transnational legal processes, but is it worth joining international human rights treaties and do they work in the context of democracy in Europe? (Koh 1998). It appears, that the contribution made by the ECHR to international human rights law greatly depends upon the political, social, and cultural nature of states that enter the agreement. International relations in the postmodern world build on the principles of neorealism, which claim that countries are unitary actors that have their preferences and act to maximize their own utility, with no regard to the wellbeing and welfare of other political actors (Neunayer 2005). As a result, it is difficult to imagine that countries-members of the ECHR will act cooperatively to improve the common situation with human rights protection in the world. More often than not, the contribution made by the ECHR to nations’ human rights protection climates depends upon the democratic power and the nature of politics in these countries (Neumayer 2005). As a result, international human rights treaties like the ECHR improve respect for human rights only in those countries that are claimed to be democratic; in countries with poor human rights records and little attention paid to the human rights issues, such treaties either make no difference or can make the situation even worse (Hathaway 2007; Neumayer 2005). Reasons why countries join international human rights treaties, including the ECHR, are obvious: for many of them, joining the treaty is the same as getting a ticket to the European Union for free. However, the mere fact of participating in the ECHR is not sufficient to ensure its legal and political enforcement. Despite certain improvements in the situation with human rights protection in Europe under the ECHR, the document and its philosophy require major improvements. Similar changes are required in the way member-states treat the ECHR; until then, the contribution made by the ECHR to international human rights law will be mostly theoretical, and hardly practical. Reflection After the Second World War and the atrocities imposed on Europeans by the Nazi states, the need to protect the fundamental human rights became obvious. The philosophy of European integration and the European Union itself build upon the principle and importance of observing the fundamental human rights. Since the Treaty of Rome that was signed in 1957 to the creation of the European Court of Human Rights, the theme of human rights protection transcended all major developments in post-war Europe. However, the common persistence of the human rights issues and continued discrimination against the fundamental human rights in Europe have led me to raise the question of the ECHR’s consistency and flexibility in light of the recent changes in culture, social, and political life across the European states. The situation with headscarves’ wearing in Europe has become one of the major drivers in my striving to understand the significance of the European Convention on Human Rights. On television and radio I often heard the claims made by member-states against wearing headscarves by women in public places. Witnessing those controversies changed by beliefs about the quality of transnational legal treaties, and I decided that it was high time for me to explore the issue in more detail. I decided to approach the topic of my project from several different angles. I thought that I would try to reevaluate the contribution made by the ECHR to international human rights law from two different angles: from the perspective of the main features of the ECHR and international human rights law, and from the perspective of the actual cases and issues affecting modern Europe and the rest of the world. This is why I included a brief discussion of the question of subsidiarity as the defining feature of international human rights law and the relevance of ECHR against subsidiarity. I also believed that, by focusing on actual cases and issues, my position on the ECHR and its factual contribution to international human rights law would be easier to grasp. Again, I chose some of the most contentious issues in present day Europe, including homosexuality and headscarves, migration and expulsion, as well as the right of individuals to refuse medical treatment. In my research, I had a secret hope that the results of the project would persuade me and my readers that the ECHR made considerable contributions to international human rights law. Unfortunately for myself and others, I came to conclude that the contribution made by the ECHR was more theoretical than practical and the barriers faced by human rights advocates in their way to universal human rights protection were too high to overcome. First, I have seen that the ECHR and the idea of supranational human rights protection are in stark contradiction with the principle of sovereignty among states (Helfer 1990; Helfer 1993). I do not try to deny the importance of state sovereignty, but when the European Court of Human Rights builds its decisions on the superiority of member-states’ sovereignty, the entire idea of transnational human rights protection loses its relevance. Even when the freedom of individual self-expression is at stake, the ECHR would never betray the superiority of states’ legal regimes and make judgments, based on the seriousness of the legal and political threat to those regimes (Vakulenko 2007). Second, I have noticed that the ECHR does not allow courts and human rights advocates to achieve the desired legal balance, and taking the most relevant human rights decision is virtually impossible. For example, when it comes to individual decisions to refuse treatment, the articles protecting individual rights for self-expression and states’ interests to protect the value of human life contradict each other (Wicks 2001). Finally, the nature of states’ legal regimes affects greatly the degree to which states comply with the ECHR (Hathaway 2007). The strength of the ECHR’s protection of human rights cannot be high, since member-states are free to leave the Convention at their first whim (Helfer 1993). The knowledge I was able to gain in this project is valuable in that it exposes the main strengths and deficiencies of the ECHR. However, it would be fair to assume that the ECHR has been a good but mostly unproductive attempt to enforce supranational frameworks of human rights protection. References Alleweldt, R 1993, ‘Protection against expulsion under Article 3 of the European Convention on Human Rights’, EJIL, vol.4, pp.360-376. Carozza, P 2003, ‘Subsidiarity as a structural principle of international human rights law’, The American Journal of International Law, vol.97, pp.38-79. Hathaway, OA 2007, ‘Why do countries commit to human rights treaties?’, Journal of Conflict of Resolution, vol.51, no.4, pp.588-621. Helfer, LR 1990, ‘Finding a consensus on equality: The homosexual age of consent and the European Convention on Human Rights’, Homosexual Age of Consent, vol.65, pp.1044-1100. Helfer, LR 1993, ‘Consensus, coherence and the European Convention on Human Rights’, Cornell International Law Journal, vol.26, pp.133-165. Koh, HH 1998, ‘How is international human rights law enforced?’, Indiana Law Journal, vol.74, pp.1397-1417. Neumayer, E 2005, ‘Do international human rights treaties improve respect for human rights?’, The Journal of Conflict Resolution, vol.49, no.6, pp.925-953. Vakulenko, A 2007, ‘Islamic headscarves’ and the European Convention on Human Rights: An intersectional perspective, Social & Legal Studies, vol.16, pp.183-199. Ware, R & Miller, V 1998, The European Convention on Human Rights, House of Common Library. Wicks, E 2001, ‘The right to refuse medical treatment under the European Convention on Human Rights’, Medical Law Review, vol.9, pp.17-40. Read More