Human rights are human made – which is why we have to be able to debate them

By Jonas Christoffersen, Executive Director, and Dorte Elise Svinth, Chairman of the Board, the Danish Institute for Human Rights. This feature was first published in the Danish newspaper Politiken on 28 March 2017.

Human rights are being debated like never before.

At the Danish Institute for Human Rights (DIHR), we believe that our legal mandate means that we can and should take part in this debate.

The stakes are too high not to. Human rights are human made. They were adopted by politicians who have obligated the states to provide effective protection of individuals.

We have to be open to discussing human rights. And we are here at the institute, while at the same time we are working persistently for a strong system of protection, which will protect the rights of humans in Denmark, Europe and the rest of the world.

In November this year, Denmark takes on the chairmanship of the Council of Europe.

And even though the institute has at no time talked about reducing the protection of fundamental human rights, we understand that some have been surprised that we have not automatically criticised the Government's plans to use the chairmanship to discuss the European Court of Human Rights.

We think this discussion is important. Firstly, because from a purely practical point of view, the Court has difficulties managing the large number of human rights cases that it has to process, and, secondly, because as a human-rights control system, the Court is more effective if it has public as well as political backing.

We have seen some harsh political statements in Denmark: Denmark was to withdraw from conventions, push international agreements to the limit, run process risks, etc.

The Secretary General of the Council of Europe, Thorbjørn Jagland, has warned against undermining confidence in Europe's institutions on the basis of nationalistic and populist considerations. The critique of human rights has on occasion taken on the nature of a witch-hunt, as described by Morten Kjærum, former executive director of the institute, in a feature article in Politiken on 1 March this year.

We have seen some harsh political statements in Denmark: Denmark was to withdraw from conventions, push international agreements to the limit, run process risks, etc. At the institute, we have been very clear in our rejection of a number of far-reaching political initiatives. This includes for example the three-year rule on family reunification, tightening of the rules for persons on tolerated stay, and restrictions in the freedom of expression for religious preachers. And much more.

We are the custodians of our democratic institutions; we protect the principles of independent courts; we want a just judicial system; and we hold on to our belief that human rights apply to everyone – regardless of who they are or where they come from.

It is the statutory task of the institute to promote human rights, and we do our very best to deliver on this task. We want a strong human rights system, in which there is backing for the European Convention on Human Rights and the European Court of Human Rights.

Unfortunately, this backing is currently waning, and therefore we must react.

In fact, the Council of Europe itself has been discussing how to future-proof the European Court of Human Rights for the past 10-15 years.

Not all human rights discussions can merely be brushed away. In fact, the Council of Europe itself has been discussing how to future-proof the European Court of Human Rights for the past 10-15 years.
It was former President of the European Court of Human Rights Luzius Wildhabe, who in 2003 suggested a reform of the Court, so that it could focus on fewer and more severe cases. In 2009, Wildhaber's successor, the Frenchman Jean-Paul Costa, proposed that a political conference be held to renew backing for the Court, ensure its legitimacy and clarify its mandate. Furthermore, in 2010 the 47 Council of Europe governments agreed to launch a reform process to ensure the continued development of the Court. Since then, numerous intergovernmental conferences have been held in order to ensure the long-term role of the Court.

Therefore, the intention of the Danish Government to place the European Court of Human Rights at the top of its agenda for the Danish Chairmanship of the Council of Europe should be seen in the context of an already ongoing debate.

As Denmark’s national human rights institution, we think it is only natural that we contribute to the debate in order to ensure the Court's legitimacy, backing and effectiveness, and in order to ensure the future sustainability of the European human rights system.

However, do we not risk a collapse of the human rights system? Will it not be a slippery slope towards a less effective system of protection, and will the critique not end up being a self-fulfilling prophecy? Of course, this is a real risk, and we have to do what we can to prevent such a development.

Fortunately, only a minority of European countries are moving away from the fundamental and common European values of respect for democracy and human rights.

It is our task to defend human rights in the face of negative populistic and nationalistic reaction.

The problem is that this minority seems to be growing, that it is objecting to ever more fundamental values, and that countries within this minority are often large and influential countries such as Russia, Turkey, Poland and Hungary. It would be very unfortunate – and implications would be alarming – if Russia, Turkey, Poland and Hungary should choose to distance themselves from the fundamental values upon which the European human rights system is based.

Of course, we should never allow such fundamental changes to human rights such that these countries have carte blanche to do what they are already doing today. It is our task to defend human rights in the face of negative populistic and nationalistic reaction. This is indisputable

Furthermore, there is another critique of the Court, which is that it meddles too much. There is a basic dilemma that, on the one hand, human rights are designed to curtail the power of politicians, which is why human rights law by definition has to be able to withstand criticism.

On the other hand, human rights require political backing. The European human rights are the result of the political cooperation that took place in Europe in the context of the atrocities and abuse against individuals and minority groups seen during the Second World War. In principle, these rights could be altered or entirely removed through political decisions.

The European Court of Human Rights has played a particularly important role in the development of Europe, and protection of most of the rights of European citizens is currently stronger than ever before. The European Court of Human Rights is a unique protector of the fundamental rights of every citizen, just as the Court has ensured continuous development of new rights.

This includes rights for homosexual, transgender, Roma and disabled people, but also fundamental rights such as the right to freedom of expression, the right to privacy and the right to a fair trial. This is sometimes forgotten in the debate.

However, in the political reality, these developments are not only being positively received. There are also objections. It is our assessment that these objections are now being debated in many places throughout Europe, and it would be irresponsible not to take them seriously.

From a Europe-wide perspective, it is not easy to gain a picture of the seriousness of the criticism. However, recent research into the debate in 15 different countries – although not Denmark – reveals that countries which are basically in favour of human rights are also being critical.

This includes the UK, Switzerland and France, where critique of the Court has been widespread and long-lived, whereas in most other countries the critique has been limited and short-lived and usually in the context of individual cases.

Most countries agree on working toward changing the division of responsibilities between the courts and the individual countries, so that the individual countries are given more room to manoeuvre in some areas. We will be monitoring this development closely.

But the criticism is real.

In countries such as Austria, Germany, Norway and Sweden, there is a widespread view that the European Convention on Human Rights should have less significance, as these countries consider themselves well-functioning democracies, governed by the rule of law.

It goes without saying that we have to be alert to any detrimental reforms; however, in our assessment there is no reason to fear detrimental changes, as all changes require unanimous agreement among the 47 member states of the Council of Europe.

Recent years' discussions in the Council of Europe reveal that reaching agreement on changes is difficult.

The most critical countries, such as Russia and Hungary, have been indifferent toward the discussions.

A number of countries, including Germany, Poland, Austria, Belgium and the Czech Republic, have only been willing to accept change that entails a strengthening of the European Convention on Human Rights. France, Italy, Turkey, Norway, Sweden and Switzerland have supported a reform agenda to some degree.

Most countries agree on working toward changing the division of responsibilities between the courts and the individual countries, so that the individual countries are given more room to manoeuvre in some areas. We will be monitoring this development closely.

Looking to the future, which will always involve an element of uncertainty, a strategy for the Court should be to strengthen the framework of the Court, so that it becomes better equipped to perform its core task: to protect human rights in Europe. The raison d’être of the Court should be to be able to react quickly to serious human rights violations and protect the individual citizen.

In their 2012 Brighton Declaration, the 47 member states of the Council of Europe stated that the Court should be able to concentrate on serious and widespread violations, on problems of a systemic and structural nature and on important issues of interpretation and application of the European Convention on Human Rights.

We would like to warn against an international process in which the wishes of some European countries to reduce the protection of human rights are brought to the negotiating table.

So the 47 member states of the Council of Europe already agree that the Court should play a different role in the future, but how do we arrive at that role?

Firstly, the Court must be better at weeding out among the cases it receives. In 2004, a number of changes were adopted with the objective of improving the Court's ability to process cases quickly. One of these changes was about focusing the Court's work, allowing it to reject cases in which the citizen had not been exposed to serious disadvantage or inconvenience.

Unfortunately, this criterion has not been extensively applied. More should be done to encourage that it is.

Secondly, the Council of Europe's 47 national governments adopted the Brighton Declaration in 2012, which included an intention for the Court to leave more room for manoeuvre to the individual countries that in practice are responsible for the protection of human rights.

The reasoning behind this was that the national courts and parliaments are better placed to make the often very difficult weighing of considerations that are associated with finding an appropriate level of protection of human rights in the individual national context. At the same time, it was confirmed that the Court's role should be as the subsequent watchdog, making sure that human rights are being complied with.

The governments therefore adopted an amendment to the European Convention on Human Rights, to make it clearer that the Court is to leave more room for manoeuvre to the authorities of the 47 countries (Protocol No. 15). However, this amendment has not yet entered into force, so it is up to the countries to get started on this process.

Thirdly, the Court continues to have a very large case backlog, which prevents it from reacting fast in serious human rights cases in Europe. At the end of 2015 the court had around 65,000 cases. Around 30,000 of these cases are complex and require meticulous processing.

The Court delivers judgments in only up to 3-4,000 cases annually. This means that it still has many years of work ahead of it. At the end of 2016, there were around 79,750 ongoing cases, which corresponds to an increase of 23 per cent in 2016 alone. Therefore, it is still pertinent to discuss how the Court can become better equipped to concentrate its resources on the most material cases.

Fourthly, one might be of the opinion that the European Convention on Human Rights needs to be changed in certain specific areas in which the protection of rights is too far-reaching. This is not our opinion.

We would like to warn against an international process in which the wishes of some European countries to reduce the protection of human rights are brought to the negotiating table.