Hands off the ECtHR

Don't trust an Englishman. Never trust a Tory.

In typical Tory fashion, David Cameron advocates an isolationist and state sovereignty approach for the ECtHR. The ECtHR has already declared that it is not a Court of Fourth Instance and does, in fact, allow national courts a wide margin of discretion through the application of the (in)famous 'margin of appreciation' doctrine. This doctrine severely limits the power of the Court. The ECtHR states, even in cases concerning the most basic rights such as freedom of expression, that:

"By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the "necessity" of a "restriction" or "penalty" intended to meet them...Consequently, Article 10 para. 2 (art. 10-2) leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator ("prescribed by law") and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force..." (Handyside v .........,,,,,,,,,,,,,,,,,,,,,,,...............United Kingdom 1976, paragraph 48).

Cameron also suggests, albeit diplomatically, that the ECtHR should lay off the United Kingdom (as well as other countries such as France and Germany) and focus on other countries famed for their repudiation of human rights such as Russia and Ukraine. This is, of course, with the excuse to reduce its backlog. I ask Mr. Cameron whether the United Kingdom should be exonerated from the most heinous violations of human rights, including it's inhumane treatment and torture of Iraqi and/or Afghani prisoners of war.

The United Kingdom, for a very long time, did not have any written statute of human rights laws (today there is the Human Rights Act of 1998 which implements the Convention rights into English law). Because of this the only liberty that was permitted was that which was not illegal. This was the common law principle: human rights are residual rights; they were the exception, not the norm. Even from a cursory glance through most Human Rights law textbooks one will find a huge collection of judgements concerning the United Kingdom. In his perversion of the United Kingdom as some bastion of democracy, Mr. Cameron seems to have forgotten about this factual truth.

And how can one restore the ECtHR to it's 'original purpose' when the spirit of Convention is so dynamic (as opposed to dogmatic) and evolutive so as to incorporate an ever-greater species of rights with the passage of time? For instance, the ECtHR once agreed with respondent states that the legal discrimination between 'legitimate' and 'illegitimate' children was at the discretion of individual states. Later on, and due to the fact that the majority of European nations started to dismantle this ridiculous distinction, the ECtHR reformed its position. It evolved in its interpretation of the Convention. The same can be said of other rights concerning homosexual and transsexuals.

There is another method where one can reduce the backlog of the ECtHR. Rather than strip away, one should empower it. Give it the right to impose heavy sanctions on member states that are found to violate human rights and improve its power of enforcement at Grand Chamber level. This would discourage member state to remain in a state of violation and encourage them to update their laws in conformity with human rights. Of course, the drawback could be that member states might rescind and revoke their membership under the Convention or even from the Council of Europe altogether. But the diplomatic repercussions would be heavy. But hey, this is perhaps what Mr Cameron actually wants.

Reform the efficiency of the ECtHR, by all means. But never trust an Englishman to do so. Let alone a Tory.

God Save the Queen.

Andrew Sciberras