The European Court of Human Rights defends human rights, but Dutch judges are too quick to follow the Court’s rulings. Without the ECHR, however, citizens would not be protected from the whims of their own governments.

By Jit Peters and Lauri-Anne Kapper*

Thierry Baudet wrote a piece about human rights and the political role of judges. In the article he sets out arguments that cannot be left unchallenged.

Classic civil rights like freedom of speech and freedom of religion are originally meant as rights to defend citizens against their national governments. After the horrors of World War II, people realised that the protection of civil rights could not be left to national governments. This is why civil rights were internationalised. Alongside the United Nation’s Declaration of Human Rights, there is an International Covenant on Civil and Political Rights (ICCPR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

The idea behind the universality of human rights is that human rights belong to everyone in the world wherever they may be. Nowhere in the world should a person be tortured or have their freedom taken from them without legal procedure.

Human rights over national sovereignty

From the very start, people realised that human rights would be protected at the expense of national sovereignty. Undemocratic regimes often respond to criticism of the violation of human rights by appealing to their sovereignty. To some extent that is what Mr Baudet is doing with regard to the Netherlands. He believes diplomatic activities in the field of human rights are allowed. But how credible are these activities, when the Netherlands does not have its own house in order?

Secondly, civil rights or human rights are characterised as rights belonging to individuals and minorities. They are least able to defend themselves against popular majorities. For instance, the Roma in France are not protected by a parliamentary majority.

A third characteristic of civil rights is that people can have them upheld against the national government. They are more than just instructions for legislators as Mr Baudet argues. What is the point of rights, let alone civil rights, if you cannot appeal to a court to uphold them?

It is their own legislators that people have to be protected from.

As there is a lack of opportunity to examine laws for compatibility with national civil rights, Dutch citizens – more than German or French citizens – depend on the ECHR and the European Court of Human Rights in Strasbourg. That is hardly something we can blame on the judges in Strasbourg.

The rule of law, alongside other elements, is mainly characterised by the protection of civil rights and by having an independent judge. This gives the judge his legitimacy. Mr Baudet appears to have forgotten this when he talks about the lack of legitimacy of the judge.

The ECHR has no political programme

Is the European Court of Human Rights just out to gain power and play politics? Is it acting in lieu of the democratically elected parliaments? Mr Baudet wants us to think that, but his arguments are too simplistic.

Politicians endeavour to realise a political manifesto and government policies. Their views on the protection of human rights are coloured by their desire to realise their political ideals. The European Court of Human Rights does not have a political programme. In this sense it is impartial. Nor does it lay down legislation.

The Court only takes action when there is a concrete dispute in which a citizen lodges an appeal based on his human rights. Because of its political independence, the European Court is in a better position to protect the rights of individual citizens and minorities. If Mr Baudet wishes to call that politics, then he has to acknowledge that it cannot be compared to the politics played by politicians.

Does examining fundamental principles such as civil rights constitute a perfect example of political activity, like Mr Baudet states? He is right when he says that the importance of these rights is not something that is set in stone and is sometimes vague. But does examining them mean that judges are less able to do this? Dutch judges are used to examining vague norms such as reasonableness and fairness, prudence and good faith. But that does not make them political.

Mr Baudet has a point when he says there are, unlike at national levels, no ‘checks and balances’ with regard to the European Court. But the European Court does confront national judges such as English judges and national constitutional courts like the ones in Germany. These judges sometimes contradict the European Court in Strasbourg, which leads to discussion. Unfortunately, Dutch judges are too quick to follow rulings by the European Court, because the Netherlands does not allow constitutional review.

Room for interpretation

On the other hand, the European Court does give the national legislator room to interpret civil rights and examine boundaries with a 'margin of appreciation'. It particularly allows the national legislator a lot of room with regard to moral or religious issues. Mr Baudet is totally wrong to use the right to life, abortion and euthanasia as examples of the European Court usurping power. It is in these cases in particular that the European Court takes the fact that people think differently about these matters in different countries into consideration.

Mr Baudet’s ideas on the concept of democracy are also too simplistic. Democracy means more than 50 percent plus one. It also means protecting the rights of political minorities. In this sense, the concept of democracy overlaps that of the rule of law and that is why we like to use the term democratic state under the rule of law. For that reason, the idea that Strasbourg is taking over our democracy sounds just too simplistic.

In the United States, judges are appointed by the president on the basis of their political background. This is true, but once they are appointed the judges go their own way and often show political independence. President Dwight D. Eisenhower called the appointment of Republican Earl Warren his biggest political mistake. Under the 'conservative' Warren, the Supreme Court became more progressive and liberal than ever before. It put an end to racial segregation in the south. And in spite of presidents Bush and Reagan appointing conservative judges, the court has upheld the right to abortion.

If we were to choose to see civil rights as instructions for legislators and to leave protection exclusively to legislators, we would be leaving citizens in the cold and turning the clock back more than 65 years.

*Jit Peters is professor of constitutional law at the University of Amsterdam. Lauri-Anne Kapper is a law student. Thierry Baudet, author of the essay 'The Strasbourg Court: a serious infringement on democracy', graduated in 2007 under Professor Peters.