In recent years the European Court of Human Rights (ECHR) in Strasbourg has degenerated into a ravening monster that, without the slightest legitimacy, overrules scores of national laws and regulations.

By Thierry Baudet*

It has deviated from its original mission – to be an ultimate guarantor of only the most fundamental principles of justice – and has assumed, despite lip-service to a supposed ‘margin of appreciation’, the right to involve itself in national policies in just about every field. With a current waiting list of almost 140,000 cases, the Court has in fact become an ordinary court of last instance, which gives plaintiffs a final chance to win their cases by overturning the laws of their own country.

European states and national parliaments have to bow to the whims of the Strasbourg Court on a wide range of issues: democratically-established asylum and immigration policies, arrangements concerning the freedom of religion and the separation of church and state, rules on police search and interrogation, and even the organization of public education.

Dutch cases

In a single week in November this year, the Netherlands was subjected to two examples of the ECHR’s dramatic usurpation of power. On November 8th, 2010, when Amsterdam Mayor Eberhard van der Laan decided to evict illegal squatters, the court in The Hague found out that this violated the European Court’s interpretation of due process.

A few days prior to that, Immigration and Asylum Minister Gerd Leers had begun to carry out the new government’s policy of expelling illegal immigrants when he received an angry e-mail from the Strasbourg Court that the policy was contrary to the Court’s opinion of the ‘human rights’ of illegal immigrants. The planned expulsion was suspended.

Other countries have experienced comparable interference in their national policies. British judges were no longer permitted to deny convicted murderers the right to vote. Bulgaria was forbidden from expelling an Islamist immigrant who set up cells of the Muslim Brotherhood, because expulsion would damage his ‘family life’. In Italy, public schools were forbidden from putting crucifixes on the wall because to do so would violate the ‘principle of secularism’.

The ECHR not the same as the EU

Founded in 1950 as an ultimate check on the abuse of state power, the Court of Human Rights in Strasbourg should not be confused with the EU. It has nothing to do with the EU Court of Justice, which is based in Luxembourg and oversees compliance with legislation from Brussels. The ECHR, moreover, deals with its own admissions of member states, again entirely separated from the EU. It currently counts 47 member states (the EU only has 27), including states such as Russia and Turkey.

The Netherlands was a founding member, though the prime minister at the time, Willem Drees, was a convinced opponent. Soon Drees’ fears became reality: the Court became much more than the promised ultimate control. By creating precedent after precedent, it began to broaden the scope of its jurisdiction.

Today, the Court influences virtually all spheres of the legal field. Almost all cases tried in Dutch national courts refer, at some point, to the European Court’s case law. And if the national courts do not take that case law seriously, plaintiffs can always appeal to Strasbourg.

All encompassing

The Court does not confine itself to the ‘most fundamental violations of justice’, its original mission, but in fact tests all existing legal and political provisions by its own views. This is an inevitable consequence of the vagueness of the very ‘fundamental rights’ that the Court was set up to protect.

The central fallacy of the Court’s establishment was that ‘fundamental human rights’ could be codified so that no case law or interpretation would be needed to decide what they were. But this proved - only too predictably – to be false.

Take as an example the ‘right to life’. Many people would hold that this is among the most fundamental of ‘human rights’. But what does it mean in practice? Should British police forces not be allowed to protect the country against IRA terrorists by killing them even as the individuals plan to carry out their crimes, as the court ruled in 2007? That Bulgaria should not be allowed to expel potential Islamic terrorists as the court ruled in 2000?

In 1998, the ECHR ruled that ‘a positive obligation to protect life’ followed from the ‘right to life’. What does this mean once it is applied to abortion and euthanasia? And to people’s access to healthcare and medicines?

Indeed, when a ‘living instrument’ – which the ECHR declared its bill of rights to be – accepts the ‘right to life’ as a positive obligation to protect it, might certain political measures curtailing the welfare state be construed as a violation of this bill? Leaving someone starving or freezing to death on the street without providing a remedy amounts to murder, the Court might say.

Discrimination?

Or take the principle of non-discrimination. Again something that sounds ‘fundamental’ and important. But consistent application of this principle should mean the prohibition of just about anything, such as the abolition of all hereditary monarchies, as well as the constitutional rule that to become American president, one has to be born in the US.

The privileged position that many states – for a variety of social, cultural and historical reasons – preserve for a specific religious denomination, for instance the Anglican Church in Britain, or the Lutheran in Denmark, or clubs that discriminate on the basis of sex: all are in violation of this sacred principle.

Because no two people are entirely the same, the principle of non-discrimination is endless in its application (just as ‘equal opportunity’ would theoretically require a ban on private property and the dissolution of families). The prohibition of discrimination in any case inevitably clashes with classic civil liberties such as those of expression, conscience and religion.

However ‘fundamental’ the principles behind these ‘human rights’ may be, therefore, in practice their meaning is completely fluid and for that reason the subject of political debate. In other words: whoever has the power to define what a ‘fundamental right’ is to mean in practice, has the power to impose his political views on others.

US Supreme Court

This is evident from the situation in the United States, where appointments of judges of the Supreme Court are in practice political appointments. For through their jurisprudence, these judges may indeed take decisive political decisions in areas such as national security (qualifying practices at Guantanamo as torture), ethics (allowing or prohibiting abortion and euthanasia), criminal justice (capital punishment), immigration (permitting or prohibiting the rejection of asylum seekers), and international law (declaring treaties unconstitutional).

American presidents nominate judges with views consistent with their own.  The US Senate, which must ratify the appointments, can oppose the nomination when the majority has a different political opinion (as happened in 1987 when the candidate of Ronald Reagan was rejected).

Americans know exactly where the judges of the Supreme Court stand and weigh their chances to push for certain political changes when a judge is replaced. Democrats are currently hoping that during Obama’s term some Republican judges may be replaced by Democrats.

The wider the scope of the jurisdiction of such a Court, the more difficulties arise. Moreover, each cultural and social context calls for different considerations. Different countries arrange their affairs differently. If the writ of the US Supreme Court also ran in Canada, Mexico, Guatemala and Venezuela, the situation would soon get out of hand.

Yet that is precisely the case with the European Court: in practice, its writ runs in 47 different countries!
Notably, the powers of the US Supreme Court are always held in check by the legislature, which may provide countervailing legislation if it does not agree with the Court’s rulings.

That is the idea of constitutional checks and balances - ‘ambition must be made to counteract ambition’ - and that different bodies of the state must keep one another in check. But nobody in Europe can counteract the ambitions of the ECHR. There is no legislature to respond to any interpretation the Court may give to ‘fundamental rights’. Since the European Court towers above all state power, no one guards the guardians.

Trumping national legislation

For two reasons, enforcement of ‘fundamental rights’ at the national level is therefore better than at the international level: every country can make its own decisions based on its own national culture, and the courts may be restrained by the other state agencies.

It is, however, also an option not to permit judges to reviw legislation at all on the grounds of constitutionality. This is one way really to avoid the politicisation of the judiciary, which has been the Dutch approach. The idea is that the rights included in the constitution should provide the guidelines for the legislature, and not be ‘trumps’ in the hands of citizens or judges to impose their views by undemocratic means.

Judges in the Netherlands are allowed to review the constitutionality of legislation passed by lower legislative organs, such as municipalities, as well as decisions of the executive. However, judges cannot review laws passed by national parliament. Thus, the ECHR conflicts with the original idea of the Dutch constitution, and has taken the interpretation of vague principles such as ‘right to life’ and ‘discrimination’ from the Dutch parliament and given them to the ECHR’s unelected judges.

This has not been without consequences. In 2007, for example, the Court ruled that the Somali asylum-seeker Salah Sheekh could not be expelled from the Netherlands because expulsion would infringe his right not to be tortured. The Dutch government’s agency on immigration had concluded beforehand that Salah Sheekh did not run the risk of torture.

Dutch national immigration policy, established after extensive public debate and sanctioned by a democratically elected parliament, has thus been overruled.

Following this case, on July 20th, 2010, a Libyan asylum seeker who was designated by the Dutch government as a threat to national security because of his active participation in a jihadi network, could not be expelled because torture would probably await him in Libya. Last month, the Court even actively wrote letters to European ministers, including to Dutch Minister Gerd Leers, to prevent them from expelling Iraqi refugees.

The examples are endless, as are the possibilities of contradicting national preferences on the basis of the moral whims of the moment. Consider the case of Lautsi vs. Italy, in which the Court initially ruled that crucifixes in Italian public schools were a violation of the fundamental right to ‘freedom of religion’ (the case currently runs in appeal).

And we may soon have an Islamic interest group that will challenge the French ban on the burqa in Strasbourg by invoking the same ‘right’ to ‘freedom of religion.’ Or a challenge to the Swiss ban on the building of minarets. What will the Court say? Perhaps that bans on the burqa or on minarets are indeed in conflict with the ‘human rights’ of Muslims. Nobody knows what the Court might say.

Only cases of extreme abuse

Democracy requires sovereignty, because without sovereignty an elected parliament is toothless. By giving sovereignty to the European Court of Human Rights, a serious derogation of European democracies has taken place. It is one of the principles of the rule of law that properly-enacted laws may not be set aside on the basis of some vague set of principles interpreted arbitrarily by a foreign court.

Judges come from a national legal community and tradition, and derive their authority from it. The Dutch would not accept Flemish judges administering the law in the Netherlands – even though the Flemish share the same language and some of the same history with the Dutch. Why, then, should the jurisdiction of the ECHR be accepted?

The rule of law and democracy require that the European Court of Human Rights radically changes its outlook. It should dismiss the vast majority of the cases which it adjudicates today as being decidable by national preference – the original but neglected idea behind the ‘margin of appreciation’. It should only assume jurisdiction in examples of extreme abuse, of the kind reminiscent of the abuses which took place from 1939 to 1945 – in which case, however, it would probably be completely powerless.

It follows that if the ECHR does not change (and it is unlikely to do so), withdrawal should be seriously considered by the contracting states. Attempts to promote the principles of natural law by means of human rights diplomacy may be laudable, but we should not make the mistake of legally codifying those principles. The inevitable effect is intolerance and oppression of cultural diversity, which could never have been the intention of the creators of the ECHR. .

*Thierry Baudet graduated in law and history. He lectures at Leiden University, where he is also writing a dissertation on national identity, European unity and multiculturalism.