Let us start with what is good about the unofficial Council of Europe meeting and statement to “rebalance” the European Convention on Human Rights (ECHR). What is good is that it is that the expressed concerns are being dealt with by means of decision and deliberation.
Signatory states are not threatening to flounce away from the convention, and nor are they intending to breach its terms. If human rights law is to be reviewed and perhaps modified, this is the mature way to do it.
And no human rights code—and indeed no set of laws—should be immune from being revisited. One only has to look at the Bill of Rights in the United States to see laws which are practically unalterable and which, at least to those in favour of gun control, should be practically altered. No law made on date [x] is necessarily right for date [y]. Legislators should not bind their successors.
The ECHR is often described as “a living instrument”. The rights and protections that it contains change and adapt over time. And this is right and proper. Such change should not always be about expansion, but also—from time to time—restriction. If you want the convention to be “a living instrument”, you have to accept in principle that the signatories can revisit the law themselves.
But admitting that the ECHR can be changed by political will does not mean that any political proposal is a good one. In May, nine convention signatories wrote a carefully framed letter expressing that they were concerned with how the convention deals with migration in general and asylum applications in particular.
One should always be on the guard against those who insist “human rights have now gone too far”. It is often a cant phrase—like “legitimate concerns”—that masks disingenuous intentions. Those who protest that human rights have gone too far often do not like human rights in the first place.
Of course, the founders of the convention were not unaware of mass population shifts and the threat of extreme politics. The mass population movements in Europe during and at the end of the Second World War were profound.
And the convention was put together by many countries with actual experience of rule or occupation by fascists and national socialists. Migration and radicalism were very much the experience of those who wrote and ratified the convention.
The “nine” say that articles of the convention are sometimes wrongly relied upon by those opposing deportation. They say also that courts are interpreting these rights too widely, especially in the cases of criminals facing deportation.
But even taking this supposed problem at its highest, it is not clear what can be done. The suggestion is not, it seems, to amend the wording of the convention. There appears to be no proposed amendment to any article of the ECHR.
Nonetheless, the governments that face losing cases on ECHR points want to rig the legal system so that they do not lose those cases. They want, for example, to narrow the meaning of “inhuman and degrading” treatment so that some inhuman and degrading treatment is permissible. This is the “bad” in the title of this post.
There are, of course, other ways of addressing problems when seeking to deport actual and suspected criminals. Take, for example, Brazil, where applicants facing deportation have successfully argued that prison conditions there are inhuman and degrading. You will see buried at the bottom of this otherwise sensationalist news report the following comment by the Brazilian government:
“The Ministry of Justice and Public Security (MJSP) acknowledges the concerns expressed by British authorities regarding the conditions of the Brazilian prison system, especially in the context of extradition requests. […]
“In light of this, the Brazilian government has adopted a series of measures. It has been working directly with British authorities and the Brazilian Judiciary to provide diplomatic assurances regarding the treatment of extradited individuals and to present reports on the conditions of specific prison facilities.
“It has also pledged to reduce overcrowding; improve hygiene, healthcare, and security conditions, promote the social reintegration of prisoners and prevent human rights violations. The Ministry of Justice and Public Security reaffirms its commitment to the promotion of human rights and the ongoing improvement of the Brazilian prison system.”
That is a better way of dealing with the problems of potential inhuman and degrading treatment: you work with the respondent state to make the conditions not inhuman and degrading.
In a similar situation, the United Kingdom, when faced with not being able to deport Abu Qatada to Jordan to face trial where some of the evidence against him was extracted by torture, quietly agreed with Jordan a treaty where such evidence could not be used. And he was deported not in defiance of ECHR but in accordance with it. He was then acquitted of terrorism charges by the Jordanian courts.
There are often political ways to address the problems of frustrated extraditions, and such politics is, well, the job of politicians. But these methods take effort and time. And so one can see attraction of the workaround of trying to “rebalance” the courts.
And what is ugly about this is that it some political leaders appear to see limiting rights as a way of combatting the rise of illiberal politics. The response should instead be to promote and defend fundamental rights.
Those opposed to the ECHR will never be satisfied by any amendments or tinkering, just as those opposed to the UK’s membership of the European Union were never satisfied by the many conciliatory opt-outs and rebates it received. Sometimes one has to defend rather than appease. The framers of the ECHR knew this in 1950 and it remains true 75 years later.
