European Convention of Human Rights - Essay Example

"[T]he government has a duty to protect the lives and properties of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms.The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory" -------- Lord Hoffmanni1 In December 2004, the House of Lords, UK, opposed Britain's detention of foreign nationals suspected of terrorism indefinitely and held without trial. This was regarded as a breach of the UK's obligations under the Human Rights Convention2. But the Government asserted its right on bringing about such limitations on human rights and civil liberties, as the whole issue was borne out of a desperate situation and keeping in mind the national security. National security concerns thus have become an intrinsic reason for curbing fundamental Human Rights that seek to restore greater danger to the well being of world citizens and that which is not only threatened by terrorism but also the erosion of basic human rights, and freedoms upon which delicate democracy is based. Rights of people, as per ECHR, are put above the rights of states out of a realization, borne out of harsh reality, that states acted in self-interest to the detriment of humanity throughout history. From time immemorial, the concept of States always shares a sense of being threatened: a cause and effect relation of dominating and trying to offer resistance. It is generally believed that though there are peaceful and controlled environments existing within states, the international arena is anarchical and prone to uncontrollable violence. What these motifs do is put the focus of national security on the protection of one's territorial boundaries and sovereignty. Power comes to be measured through military capability, where everybody starts sharing a sense of being marginalized. The world begins to have an absurd dynamism and begins to operate on a zero-sum game in which, according to Peter Stoett, "security is obtained at the expense of others."3 Thus, is the issue of human rights is being traded off for more security, or whether security concerns, as Blair argued, should trump over human rights In this regard, it is important to realize that Theodore Roosevelt's discourse on four freedoms is often cited as the nucleus of the development of the post-1945 human rights system. It was a model where freedom from fear and freedom from want were seen as being translated into the concept of civil and political rights and economic and social rights. Yet, when talking about the freedom from fear, Roosevelt referred to arms control, and not to human rights or individual security!4 Interestingly, nobody can deny that freedom from fear is an easily understood and tangible idea and a powerful wish which all of us share. However, if we study the matter closely, we find that that its promontory is definitely beyond the simplistic idea of human rights. For example, if we take Canada, we find that the country has taken up the idea of human security and has started to formulate it as a foreign policy priority.5 And following the initiative of Canada, other countries have come together to form the Human Security Network. The organization has been created as an amalgamation of the like-minded nations and aims to advance human security globally6. It also has a high level Commission on Human Security, which is co-chaired by Amartya Sen and Sadako Ogato.7 Yet, some view Human Rights as a paradigm, which has made a dramatic departure of traditional foreign policy concepts. Critics have accused the concept of being far to universalistic with conceptual flaws and have argued that it does not serve the victims of insecurity, but rather creates false priorities and hopes.8 Thus, political security is based on democratic government and the protection of human rights. This issue is perhaps the strongest tenet of human security theory and separates the paradigm most clearly from the traditional model. Human rights violations are often perpetrated by states upon their own citizens with the goal of protecting "national security." However, such policy can often lead to a loss of legitimacy of the government and the eventual breakdown of the entire state. This is especially the case where the military is used as a tool of repression. In 1980, Iraq and Somalia had the lowest quality of education and health as compared to its military expenditures.9 These two states have suffered catastrophic crises in both national and human security over the last two decades.10 So, what we can learn from the dictatorial regimes of people like Saddam Hussain is that a strong military does not necessarily provide security to either states or individuals. Again, owing to the involvement of international civil society, the adoption of the landmine convention, the UN Conference on Small Arms and the creation of the International Criminal Court are repeatedly being attributed to human security as a concept, which has influenced decision-making and action. Indeed, in today's world of rising non-traditional, non-conventional and trans-national threats, the protection of borders and the preservation of territorial integrity cannot be the ultimate goal of security. "The constraints on State sovereignty, the mobilization of international civil society in defense of international norms, and the sharing of power between state and non-state actors in a globalizing world () leave a clear message: the state is not longer able to monopolize the concept and practice of security".11 Since the codification of human rights in 1948, international law has recognized the need to limit, in appropriate circumstances, the enjoyment of individual human rights in the name of national security and public order.12 The difficulty has always been identifying the proper balance between full and partial implementation of rights. As the European Court of Human Rights recognized in Klass v Germany, one must avoid 'undermining, or even destroying democracy on the grounds of protecting it'13 The Government's recent efforts to manage the risk of terrorism clearly demonstrate how difficult it is to achieve this balance. Civil war and ethnic cleansing ravaged the Balkan region. The transformation of the formerly communist-run countries of the Eastern Bloc progressed by fits and starts; their economic decline always a threat to their fledgling democracy. In Africa, Somalia and Rwanda was wrought with genocide and anarchy. The ECHR therefore stress those Human Rights as a condition for political stability and socio-economic progress. Consider the measures taken to reinforce the powers of governments and law enforcement bodies, like accessing individuals' personal data, permanent and automated surveillance to steer the behavior of individuals: under surveillance an individual will act differently than without, even if he/she does not act or intend to act illegitimately. This evolution seems to turn into hard reality what the American sociologist Gary Marx in 1988 already called the 'maximum security society'.14 This 'maximum security society' relies on a refined technological framework to influence and even 'programme' the daily lives of citizens. Harsh investigation techniques are replaced by softer versions that can be applied without knowledge of the persons observed. Large databases are established and linked containing data on the people at large, suspect or not. Robert O'Harrow's "No Place to Hide" actually supplements some of Marx's theses, by emphasizing the more aggressive and dominant role of private data hunters in America's security policy today.15 The negative reactions were based on the feeling that this use of surveillance technology has implications for human rights in general, and privacy in particular, as its potentiality to exploit people or exert social control is unregulated. Robert Kagan,16 identifies differences in constitutionalism that suggest superior legal and judicial protection in Europe. The protection of individual privacy at the EU level is mainly governed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and Article 7 of the Charter of Fundamental Rights of the European Union. In parallel, data protection in the EU is governed by Directive 95/46/EC (24 October 1995) on the protection of individuals with regard to the processing of personal data and on the free movement of such data, Directive 2002/58/EC (12 July 2002) on privacy and electronic communications, by Article 8 of the Charter of Fundamental Rights of the European Union17 and by the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. Thus threats to security are not limited to those posed by the military of foreign states. Human security is not a zero-sum game because all people on this planet are fundamentally interconnected. Human security focuses on people instead of states. This explanation of the term can be used as a criterion for forward-thinking states and international organizations to measure the true security of human beings. From this point, governing bodies can begin to prioritize threats and to formulate policy to counter the most dangerous threats to human security. States questionably undertake this same basic process when assessing threats under the traditional national security model. Both models require a process of analysis, assumption and prioritization. However, highest priority cannot and should not always be given to the possible threats presented by the military capabilities of other states. In the case of human security, the state is less selfish and therefore is more likely to be effective in counteracting threats to individuals and groups. This enhanced role may serve to protect a nation's "national security" from a threat that would likely be neglected under a traditional security paradigm. According to Thomas, the term "people" is not equivalent to the neo-liberal concept of the "individual." She describes the "notions of competitive and possessive individualism" of neo-liberalism as incongruent with meeting an indivisible human security that "cannot be pursued by or for one group at the expense of another."18 The Strasbourg case law, the telephone tapping case law of the European Court is traditionally hailed as a powerful demonstration of the strength of the Convention. Although the Convention does not speak to us about modern means of communication, the Court has successively brought telephone conversations (Klass),19 telephone numbers (Malone), voice recording (P.G. & J.H.)20 under the scope of Article 8. In recent cases such as Amann, Rotaru and P.G. and J.H. v. the United Kingdom,21 the European Court seems to remedy this by applying a very broad privacy definition, an uncritical reference to the Leander case, a generous reference to an older data protection treaty and a very loose scrutiny of the requirements of the first paragraph of Article 8 ECHR.22 Again, surveillance of the public space by CCTV for almost two decades now, Peck (2003) case brought a constitutional check.23 Other relevant provisions are Article 3 prohibiting torture and inhuman or degrading treatment or punishment, Article 5 on detention and the right to liberty and Article 15 with regard to derogation in time of emergency. Article 3 seems particularly fit to deal with serious violations of human rights. Several cases concerning alleged violations of Article 3 have been brought before the Court. In Aksoy the Court recognized the serious problems of terrorism in South East Turkey and the difficulties faced by the Turkish state in taking effective measures against it.24 It nevertheless found a violation of Article 3 in torturing a suspected terrorist and of Article 5 in holding a suspected terrorist in incommunicado detention without access to a judge or other judicial officer for fourteen days.25 The Court held that even in the most difficult of circumstances, such as the fight against terrorism, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment.26 Many recent post-9/11 developments in and outside Europe seemingly go against these requirements. The question of whether a privacy-infringing initiative is capable of being controlled replaces the question of whether an initiative infringes privacy. The question of constitutional reasonableness is a legitimate and political question, but can the European human rights framework be used to demand accountability with regard to this question The question is legitimate because proponents of the European human rights framework and civil society in general know that the longer a technology is used, the more entrenched in life it becomes. They feel that the current (legal) system gives too much leeway to new technological developments that are incepted without proper interrogation from and altering to a human rights perspective. They also feel the American pressure and know about America's mass installation of security technologies (metal detectors, scanners, CCTV's, iris recognition systems, alarms, locks, intercoms, and other forms of surveillance, detection, access control and biometric equipment) in schools, government premises, stores, offices, workplaces, recreation areas, streets and homes; and other public places, without understanding all the purposes behind this security build-up. Luckily, common sense prevailed and the people adopted a critical attitude (that regrettably is hardly echoed in the current legal framework), refusing to accept simple answers about safety and protection when there is little evidence that security technology actually makes us safer. They have heard about the paradox of technology, viz. that technology that is said to do good also produces unintended negative consequences and does not live to the promises of those that develop and seal it. They realize that police forces often use new technological security tools on poor and non-white people, and fear social outrage about discriminating practices.27 This argument can be best understood with the case of Lors.28 Lors, placed under a special detention regime (EBI) who complained that his cells were weekly subjected to a more thorough search; he was frisked and strip-searched amongst other humiliating practices. He challenged these practices under Article 3 of the Convention prohibiting torture and inhuman or degrading treatment or punishment. Lors also made reference to the right to privacy and family life respected, enshrined in Article 8 of the Convention. He argued that the large number of security measures in force, in particular the systematic strip-searching but also the monitoring of Mr Lors's telephone conversations and correspondence as well as the daily inspection of his cell, left Mr Lors not the tiniest space for a private life.29 The reaction of the Court illustrates nicely our point about a solid human rights framework for harsh measures and an uncertain one for soft measures of surveillance. Everybody will agree that the strip search, including an anal inspection, qualifies as the former. And so did the Court. Although it had previously found that strip searches were necessary on occasions to ensure prison security or to prevent disorder or crime,30 it concluded this time that the combination of routine strip-searching with the other stringent security measures amounted to inhuman or degrading treatment in violation of Article 3 of the Convention.31 Thus, ironically, "national security" does not mean that all those who are citizens of those nations benefit from or are defended by the powers responsible for the drive to renege on international obligations. Britain's war against Iraq was justified after manipulating the law to ensure that it justified the political decision that had already been taken. Unable to obtain the necessary resolution from the UN Security Council authorizing military intervention in Iraq, the laws were re-interpreted to side-step the institution established by international agreement to avoid states acting arbitrarily. The destruction of communities in New Orleans in the aftermath of Hurricane Katrina, communities allowed to die due to unwillingness both to accept international agreements on global warming and also due to the diversion of resources to an illegal war. If a government exceeds its power and defines "security" in the interests of a few, then it threatens democracy and loses the legitimacy to govern. The truth is that the greatest protection comes from upholding the rights of all citizens rather than fuelling the alienation, which feeds terrorism, and ultimately destroying the rule of law. Again, war in Iraq was contemplated primarily in order to make the world more secure. Millions of Iraqi women, men and children were killed by the fighting, or by the Iraqi security forces if they dared to rise against the Iraqi government, or bombed to death. That war against Afghanistan too was fought in the name of security. An unknown number of civilians died in the bombing raids and hundreds of prisoners reportedly suffocated to death in sealed containers. Human rights advocates have long been wary of the way in which governments interpret and implement their security agenda at the national and international levels. Bombings of buses in Tel Aviv or a discotheque in Bali, the ambush and murder of civilians in Burundi, or hostages held in a theatre in Moscow are encouraged to be brought to justice in accordance with standards of fair trial, as per the ECHR. By denying justice and perpetuating impunity, many governments have both undermined their international human rights, obligations and contributed to the cycle of insecurity, violence and violations. Global insecurity, far from diminishing the value of human rights, has actually heightened the need to respect them. All too often security measures harm the innocent as well as the guilty. All too often political leaders exploit public fears and prejudices to avoid accountability and promote their own interests. Greater emphasis on security, far from making the world a safer place, has made it more dangerous by curtailing human rights and undermining the rule of international law; by shielding governments from scrutiny; by deepening divisions among people of different faiths and origins; and by diverting attention from festering conflicts and other sources of insecurity. Exploiting the international climate favoring "counter-terrorism", many governments reinforced and renewed their crack-down on political opponents and others whose loyalty they doubt, such as trade unionists, journalists, religious and racial minorities, and human rights defenders. Governments are not entitled to respond to terror with terror. Governments should be obliged act within the framework of international human rights and humanitarian law, especially during emergencies. The ECHR restrains governments from actions that harm and provide the standards for accountability and thus constantly demand a transparency of their action. They empower people and give them the freedom to choose, to challenge and to shape their own destiny. They provide a framework for constructive dialogue between governments and peoples and help in building a civil society, beyond the shadow of probable despotism with peaceful conventions that ratify humane actions, above all. Works Cited 1. Art 29(2), Universal Declaration of Human Rights, 1948 and Art 4, International Covenant on Civil and Political Rights, 1966. 2. Casella, Ronnie. The False Allure of Security Technologies, Social Justice, 2003, Vol. 30, No. 2, 82-93. 3. Congressional Record, 1941, Vol. 87, Pt. I: 'In the future days, which we seek to make secure, we look forward to a world founded upon four essential human freedoms. The first is freedom of speech and expression - everywhere in the world. The second is freedom of every person to worship God in his own way - everywhere in the world. The third is freedom from want - which, translated into world terms, means economic understandings, which will secure to every nation a healthy peacetime life for its inhabitants - everywhere in the world. The fourth is freedom from fear - which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor -anywhere in the world', See for the history of the concept as well as for a comparison between the UNDP and the Canadian approach in greater detail; Kanti Bajpai, Human Security: Concept and Measurement, Kroc Institute Occasional Paper #19:OP:1, 2000, http://www.nd.edu/krocinst/report/report19/abs_19_1.html. For the Canadian concept see http://www.humansecurity.gc.ca 4. European Convention on Fundamental Freedoms and Human Rights, 1950 5. ECHR, Klass V Germany (A/28), of 6 September 1978, para 48. 6. ECHR, Klass v. Germany, judgment of 6 September 1978. 7. ECHR P.G. and J.H. v. the United Kingdom (Application n. 44787/98), judgment of 25 September 2001. 8. ECHR, Peck v. United Kingdom, judgment of 28 January 2003, 62. Less evident is the subsequent dictum that "the disclosure by the Council of the relevant footage constituted a serious interference with the applicant's right to respect for his private life" (Peck, 63). 9. ECHR, Aksoy v. Turkey, judgment of 18 December 1996, 84. 10. ECHR, Aksoy v. Turkey, judgment of 18 December 1996, 61- 65 and 84. 11. ECHR, Aksoy v. Turkey, judgment of 18 December 1996, 62. 12. ECHR, Lors and others v. the Netherlands, judgment of 4 February 2003 (Application no. 52750/99). 13. ECHR, Valainas v. Lithuania, no. 44558/98, 117; Iwaczuk v. Poland, no. 25196/94, 59, 15 November 2001, unreported; McFeeley et al. v. the United Kingdom (application no. 8317/78, Commission decision of 15 May 1980, DR 20, 44, 60-61). In the cases of Valainas and Iwaczuk one occasion of strip search was at issue, whereas the case of McFeeley et al. concerned so-called "close body" searches, including anal inspections, which were carried out at intervals of seven to ten days, before and after visits and before prisoners were transferred to a new wing of the Maze Prison in Northern Ireland, where dangerous objects had in the past been found concealed in the recta of protesting prisoners. 14. ECHR, Lors and others v. the Netherlands, l.c., 73-74. The Court considered that in the situation where Mr Lors was already subjected to a great number of control measures, and in the absence of convincing security needs - bearing in mind that at no time during Mr Lors's stay in the EBI did it appear that anything untoward was found in the course of a strip search - the practice of systematic (weekly) strip searches that was applied to Mr Lors for a period of more than six years diminished his human dignity and must have given rise to feelings of anguish and inferiority capable of humiliating and debasing him. 15. Human Security Network see http://www.humansecuritynetwork.org 16. Kagan, R. Of Paradise and Power: America and Europe in the New World Order, Alfred a Knopf Inc, February 2003. 17. Khong, Yuen Foong: Human Security: A Shotgun Approach to Alleviating Human Misery, in Global Governance 7 (2001), pp.231-236. 18. Lodgaard, Sverre. Human Security: Concept and Operationalization, http://www.hsph.harvard.edu/hpcr/events/hsworkshop/lodgaard.pdf , at p.4. 19. Marx., Gary T. 'La socit de scurit maximale', Dviance et socit, 1988, 147-166. For a discussion of this concept and similar concepts by Michel Foucault, Stanley Cohen and Gilles Deleuze: see Serge Gutwirth, Privacy and the information age, Lanham, Rowman & Littlefield Publ., 2002, 71-78 ("Controlling societies"). 20. O'Harrow Robert jr., No Place to Hide. Behind the Scenes of of our Emerging Surveillance Society, Free Press, 2005, 368p. Compare with 'Your Identity, Open to All', Wired, consulted May 2005, http://www.wired.com/news/privacy/0,1848,67407,00.html: "A search for personal data on ZabaSearch.com - one of the most comprehensive personal-data search engines on the net - tends to elicit one of two reactions from first-timers: terror or curiosity. Which reaction often depends on whether you are searching for someone else's data, or your own. Zaba Search queries return a wealth of info sometimes dating back more than 10 years: residential addresses, phone numbers both listed and unlisted, birth year, even satellite photos of people's homes". 21. P.G. and J.H. v. the United Kingdom. 22. Stoett, Peter. Human and Global Security: An Exploration of Terms (Toronto: University of Toronto Press, 1999), 17. 23. Thomas, Caroline. Global Governance, Development and Human Security (Sterling, VA: Pluto Press, 2000), 6. 24. United Nations Development Program, Human Development Report, New York: Oxford University Press 1994, 33. Read More