The European Court of Human Rights is making too many inroads on democratically agreed legislation.

by Stef Blok and Klaas Dijkhoff

So far Dutch politics has remained remarkably silent about the expanding role of the European Court of Human rights. Yet in other European countries the discussion is becoming heated. The reason is that over the past few years the Court has been extending its ruling over an ever widening range of areas, basing itself on the European Convention on Human Rights (ECHR).

The Netherlands was a different country in 1954 when the Lower House ratified the ECHR. Migration presented no major problems, and nobody knew what a welfare state was. If migration existed at all, it mainly involved people emigrating to Canada and New Zealand. Social security was very limited, a more extensive system of benefits not seeing the light of day until the 1960s and 70s.

Trias politica
Today, however, these areas figure prominently in frequent, far-reaching rulings by the European Court of Human Rights - a state of affairs that could in no way have been foreseen by our predecessors in the Lower House in the 1950s who agreed to the ECHR.

The Court trying to claim as much room to move as it can may appear logical from its own perspective. But one can reproach European politicians for standing aloof too long while the fundamental separation of powers, the trias politica, was being violated. It is crucial that democratically elected politicians, rather than appointed judges, determine the content and scope of laws and treaties.

Foundation
The Court's ruling in the MSS/Greece and Belgium case has led to a fundamental review of the European asylum policies, known as the Dublin system. "Dublin" implies that an asylum request has to be dealt with by the EU member state where the asylum seeker has entered the Union. The system was adopted only a few years ago, for perfectly valid reasons, by the EU member states.

Both rulings have an immediate impact on the democratically created legislation of all European countries. Yet the contested policies could in no way be accused of being in violation of the classical human rights as enshrined in the ECHR. Other European countries have experienced similar problems. Spain and the United Kingdom, for instance, are having great difficulties accepting the Court's environmental legislation based on the ECHR (Hatton vs. UK and Lopez Ostra vs. Spain).

The lack of a democratic foundation under the generous interpretation of the ECHR by the Court is incorrect in principle, as well as being the cause of dissatisfaction. Judges and academics, both conservatives and progressives, are critical. And the criticism is not just heard here in the Netherlands (by Zwart and Baudet) but also by eminent judges like the UK's Lord Hoffmann and the chairman of Belgium's Constitutional Court, Marc Bossuyt.

Credibility
The court's tendency to become more and more involved in democratically legitimate political decisions of member states is threatening to erode its credibility and acceptability. That is undesirable, because the original aims of the ECHR and the Court remain as important as ever.

In order to buck this trend the Comittee of Ministers representing the participating member states should adopt a more directive role. After all, this committee represents the respective legislators of the countries involved. It should not pronounce on individual rulings, but set clear limits on the interpretation of the ECHR.

At a ministers' conference in Izmir, Turkey this month the modus operandi of the court is on the agenda. Our party [the Netherlands' ruling free-market VVD party] considers this an excellent opportunity to argue for a clear framework. There are at least two options:

Firstly, a change in the ECHR, considerably widening its margin of appreciation, that is, the freedom that states have to shape their policies according to their own insights.

Secondly, the Committee of Ministers will decide the scope of the ECHR by voting on resolutions. Whenever a member state expresses objections against the interpretation of any provision in the Convention, the committee will be able to restrict the margin of appreciation, applying either to all member states, or to some of them only.

Our world is rapidly changing. At the beginning of the 21st century Europe is facing significant challenges: migration has mushroomed, and top-heavy welfare states are on the brink of collapse.

It cannot be right that today's people, and the politicians they elected, are bound by a treaty signed by their predecessors. After all, no national legislation has remained the same either over the past 60 years. Legislation, which includes treaties, should lend themselves to being brought up to date.

That is why the VVD is calling on the cabinet to look for allies within Europe to wake up the Committee of Ministers. It is they who have to move the ECHR into the third millennium and reign in the Court; this will will ensure that both the Court itself and the ECHR in particular will retain their support in Europe.

* Stef Blok is chairman and Klaas Dijkhoff a member of the parliamentary VVD party in the Dutch Lower House.