Troops Ordered To Kill All Americans Who Do Not Turn In Guns
Legal Diplomacy
Make Law, Not War
The origins of the idea of establishing, during the postwar period, some kind of supranational protection of human rights are disputed in the literature. In fact, the very changes implied by the postwar innovations in terms of the internationalisation of human rights are contested.
A central issue for this literature is the historical continuity, or possible discontinuity, of many of the issues directly related to postwar human rights – the individual subject, international collective guarantee etc.
However, it tends generally to downplay what might very well be the most essential transformations implied by the postwar processes. Building on a larger inquiry into the rise of international human rights after World War II, this article argues that, during the postwar period, some of the main innovations in terms of human rights were on the legal-institutional level.
The postwar investments in international human rights created not only new international norms but also a set of new international venues for human rights activism. The latter were to transform the very idea of how to protect human rights and, thereby, eventually the very notion of human rights. This is, of course, not to claim a certain built-in automatism in the rise of the contemporary legalinstitutional framework of international human rights, but rather to point to the clear differences between the interwar period and the postwar period in terms of the structure of opportunities for pursuing international human rights. In the long run, the actual effects of postwar international human rights and corresponding institutional setup were to be determined by the interplay of the new institutions and norms and their changing geopolitical contexts.
Generally, the European experience of the international institutionalisation of human rights was to be considerably different from other attempts madeduring the same period. As argued elsewhere, the comparative success of the European human rights regime was due to both the timing of the ECHR and the ways in which the Convention was perceived among a politically wellconnected elite of legal entrepreneurs.
The drafting of UN human rights had been carried forward by the general momentum related to the founding of the UN and the universalist ideology of some of the chief negotiators, but it had been limited by the lack of commitment to enforce such universal standards.
The ECHR was drafted in a surprisingly different context. In Europe, the atrocities of World War II, as well as the breakdown of the protection of fundamental rights by the legal systems in occupied countries, were present in the memory of the key advocates of the Convention. In many cases, these actors had been active in the resistance struggle or members of the Allied forces during the war.
Moreover, fear of the breaking out of new hostilities along the emerging East-West divide gave the whole undertaking a different political urgency of which the advocates of the Convention were not afraid to remind the involved politicians. Their message was clear: If one was, through the use of international law, to seriously hinder the rise of new totalitarian regimes, the European system could not imitate the well-meaning but toothless legal arrangements at the UN level. Real law and effective legal institutions were the necessary conditions for achieving this goal.
Being, thus, an upshot of the emerging Cold War context, the European human rights system was to go further – legally and institutionally – than the other human rights systems created at the same time. Of most significance was the fact that the European system introduced a human rights court. Moreover, the European Convention was not simply an international agreement in the conventional manner, where states could bring legal actions against each other for breach of a mutually agreed Convention; it also allowed for individuals to bring actions against their own governments at the level of a supranational institution.
However, although these international legal innovations have now become practically synonymous with European human rights law, it should be underlined that they were very far from a fait accompli at the stage of negotiating the Convention. If the right to individual petition has become the landmark of contemporary European human rights, it is interesting to note that in the original Convention of 1950, the right of individual petition before the Court was made optional. Perhaps even more striking is the fact that the jurisdiction of the Court was made optional. In other words, the contracting states could choose to accept only the jurisdiction ofan intermediate institution, the European Commission of Human Rights, yet the right to individual petition before the Commission was, in fact, also made optional.
Further weakening the basic framework of the system, the recommendations of the Commission were not in themselves legally binding and had to be accepted by a Committee of Ministers to gain effect; they were, thus, in principle, under the control of an inter-state political body rather than an independent legal body. The Commission could, however, also choose to bring the case before the Court, granted that the state in question had accepted the jurisdiction of the Court and that the case could not be settled by conciliation.
Individuals had no option of bringing a case before the Court, whilst states could choose to bring a case before the Court. As it appears from this overview of the main institutional features of the original ECHR system, at the time of negotiating the Convention, there was little political will to set up entirely independent legal institutions. The original institutional framework might indeed be described as somewhat opaque.
The legal diplomacy, which this article claims was at the heart of the early production of European human rights law, was, in fact, installed as a basic premise in the institutional order laid out in the ECHR. From the historical sources available, it is clear that establishing a European human rights system was anything but a straightforward process. At the Congress of Europe in 1948, a number of problems, which were to hamper the subsequent negotiations, were already apparent. One of them being the most fundamental, namely, the question of the desirability of such a document in light of the existence of the Universal Declaration of Human Rights, adopted just a year earlier.
Although this issue was eventually overcome, particularly due to the intervention of Winston Churchill, the next question to arise was whether to pursue simply a Declaration of human rights – in the style of the Universal Declaration of Human Rights – or to attempt a more ambitious project in the form of a legally binding European Bill of Rights. It was a problem which had already been prophetically anticipated in 1945 by the Cambridge Professor of International Law, Hersch Lauterpach:
Should it be decided to reduce any international bill of human rights to a mere statement of political or moral principle, then, indeed, it would be most likely to secure easy acceptance; any possible diffi culty in agreeing upon its terms will be merged in the innocuous nature of its ineffectual purpose. But if the second World War ought to end, then a declaration thus emaciated would come dangerously near to a corruptionof language. By creating an unwarranted impression of progress it would, in the minds of many, constitute an event which is essentially retrogressive. For it would purport to solve the crucial problem of law and politics in their widest sense by dint of a grandiloquent incantation whose futility would betray a lack both of faith and of candour.
This critique resonated well with a widespread sentiment among many of the main advocates of the ECHR. These ‘lawyers-statesmen’ had almost all experienced the horrors of World War II, and most had developed an ardent dislike of totalitarianism in any form. For them, as for Lauterpacht, a strong legal document – and well-timed political statement – was fundamental. These actors especially made a case against the kind of hypocrisy already observed in the UN, where countries with scant respect for human rights had signed the UDHR with little intention of turning its high prose into effective legal solutions. In Europe, membership of the Council of Europe was, therefore, made conditional upon the respect of human rights and democracy. And the European Convention was precisely to become the benchmark for determining what was to be considered democracy and human rights in Europe.
Having established this founding principle, which obviously implied that the Council of Europe and the ECHR became components of the new ideological divide of Europe, the next question concerned which rights to protect and how to protect them. There was surprisingly little consensus on the rights to protect and the extent to which these rights should be defi ned in detail.
Reflecting the geopolitical context, the debates on the scope of rights, unsurprisingly, saw the tide turn in favour of political and civil rights, while social and economic rights were left for later amendments. The list of rights included in the original Convention was limited, but it was more than sufficient for stating the fundamentals of a democratic society in a world marked by growing Cold War tension. Pierre-Henri Teitgen noted in 1949, when presenting the so-called Teitgen Report:
‘The Committee on Legal and Administrative Questions… considered that, for the moment, it is preferable to limit the collective guarantee to those rights and essential freedoms which are practised after long usage and experience in all the democratic countries. While they are the fi rst triumph of democratic regimes, they are also the necessary condition under which they operate’.
The actual list of rights included in the Convention might come across as somewhat restricted and not very innovative. It is certainly no exaggeration to claim that the real innovation of the Convention was on the institutional level. Not only was the idea of a European court, in particular, highly innovative, but it was also to have effects which went far beyond the Cold War political manoeuvrings which were intrinsic to the setting up of the Council of Europe. It should, however, be pointed out that among the member statesno one could have predicted that such an institution would eventually drive toward a dynamic and expansive interpretations of the Convention, with the consequence of considerably altering the very notion of human rights in Europe and, thereby, also the substance and procedures of the protection of human rights in national legal systems.
As argued elsewhere, there was a clear element of export trade in the whole exercise of writing the ECHR. This had the effect of somewhat blinding the negotiators toward the potential national ramifi cations of such a document. They generally assumed that their home countries were in compliance with the Convention, as it was assumed to be based upon existing practices.
Their greatest fear was that such a supranational system of law would be abused by subversive agitators with friendly views of the Soviet Union, or the struggle for independence in the colonies; that is, they feared that these rather straightforward politics of containment, in the guise of human rights, were to backfire.
