EUROPEAN UNION WORLD

The International Human Rights Movement: A History

Legal Diplomacy

The Art of Diplomacy and the Need for Legitimacy

 In order to more fully explain the early institutional dynamics of the ECHR, these intra-institutional skirmishes obviously have to be analysed in the context of the external constraints of these emerging institutions.

Regardless of what is normally implied by the very term ‘institution’ and certainly ‘institutional analysis’, it seems relevant to analyse the ECHR institutions as having been produced at the intersection of external and internal constraints.

What, hereby, is suggested is not simply to raise the question of input and output legitimacy of these institutions, but to analyse these dimensions as interdependent – that is, to analyse the correlation between the internal structures of these institutions and their positioning within a larger external structure, that of an emerging field of human rights. The applicability of such an approach in the context of emerging European legal institutions is already suggested by the relative clash between the Commission and Court.

However, fully explaining the surprising development of a minimalist notion of European human rights under the auspices of the Commission requires a further examination of the specific diplomatic climate in which the rise of the European human rights system and jurisprudence took place. The minimalist notion of human rights did allow the Commission to control the flow of cases, yet the background to this institutional strategy can only partly be located in the internal constraints of the ECHR institutions. It was equally the product of the political-historical context.

As argued elsewhere, the Strasbourg institutions were, in fact, rather hesitant during the first fi fteen to twenty years of operation before initiating the dynamic jurisprudence which was to cement their position from the early 1980s as a quasi ‘European Supreme Court’. The reasons for this initial reluctance was mainly that the institutions were vulnerable in respect to the member states and, therefore, had to continuously strike a fine balance between promoting European human rights and convincing the member states of its relevance and reasonableness. It is curious to note that the fi rst major cases - the Cyprus cases (the Commission) and the Lawless case (the Court) - indeed gave the member states the impression that the ECHR system was not going to take an aggressive stance against the member states in the area of human rights.

There is little doubt that this cautious course of action was due to thepolitical climate of the late 1950s and early 1960s. During the period, Cold War-inspired clashes in the area of human rights were at their peak, and, more importantly, the battle over decolonisation was still unfi nished, which placed European states in the eye of the hurricane of the broader geopolitical scheme of human rights. Moreover, as suggested above, a very central task of the ECHR institutions consisted, in fact, of seeking to convince the major European powers, which also happened to be geopolitically the most vulnerable in this respect, of accepting the optional clauses.

The case of the United Kingdom is exemplary in this regard. As noted, the United Kingdom accepted the individual petition and the jurisdiction of the Court only in 1966 against the backdrop of a very limited jurisprudence. However, the relevant actors had a ‘feeling’ that these institutions had already developed a sound understanding of what could - and should - be implied by the notion of European human rights. The Foreign Office legal advisor in charge of reviewing the compatibility of English law in respect to the Convention before accepting the optional clauses recalled the situation in an interview:

We had to review our legal system in the light of whatever jurisprudence had developed, and it was very little at that time.… [T]he jurisprudence of the Court had not been developed at all at that time. Two cases [had] come before the Court. Several thousand complaints have come before the Commission. But, the Commission had taken, I would say, a rather restrictive view on the interpretation of the Convention, not a liberal view, despite the fact the Convention is drafted in quite broad terms. But, the effect of this approach of the Commission was, in fact, to build up the confi dence of Governments in the system.… They didn’t feel that the system was going mad and that, you know, any applications from any old chap that felt his rights had been violated would be successful before the Commission.

As it appears from this quotation, the predictions of what could be expected in Strasbourg played a signifi cant role in convincing the member states of gradually accepting the full ECHR package. The self-constraining strategy of the Commission manifested in its jurisprudence on ‘manifestly ill-founded claims’, along with the few and restrained decisions of the Court, had in fact produced the image of a solid and politically refl exive institution, that is, an institution that was willing to listen to the arguments of the member states and not (yet) pursue an idealist, even radical, human rights agenda.

Contributing equally to the image and institutional identity of the ECHR system were the very persons appointed to the Commission and Court and their status in national legal fields. A brief look at the main professionalcharacteristics of the first judges of the Court provides a picture of a set of actors who, for the most part, were legal academics. Of the fi rst fi fteen judges appointed to the Court, nine can be characterised as mainly academics, whereof most specialised in international law. It is, in this regard, also important to note that only a few had a background as national judges.

Indeed, contrary to the fi rst judges of the European Court of Justice, who for the most part were appointed because of more specifi c specialisations in law, economics and the administration of justice, the jurists of the EHRC were a far more homogenous group of elite legal academics. What is certain is that this group of actors could provide, if not expertise on how to run a supranational court, then certainly legal legitimacy in respect to the national legal fields of the member states in which they all held great prestige. Hence, despite acting out of an, by all means, uncertain institutional framework, they held a legal capital which was easily exchangeable to the different legal orders of the member states.

It is, in this regard, also important to note that a number of the jurists appointed were also well situated in respect to national political fi elds. Many of these jurists had been actively involved in foreign policy issues of a legal nature. For example, the second President of the Court, René Cassin, had a long semi-political career behind him during which he had, among other roles, acted as legal counsel to Charles de Gaulle’s Free France Government in London during the war, as well as been appointed to a series of key governmental committees and leading NGOs. Another central actor in this respect was the President of the Commission, the eminent Danish public international law professor Max Sørensen, who had previously not only provided expert consultancy for the Danish Ministry of Foreign Affairs but also been an employee of the same institution. The ECHR experts’ familiarity with the political environments had a double importance in respect to building the legitimacy of the institution. On the one hand, the legal experts werelaw, this new legal knowledge and savoir faire was, at the end of the day, a very advanced form of diplomacy: a legal diplomacy.

Such an understanding obviously draws on Max Weber’s notion of legal rationality and associated forms of domination. The Weberian concepts also provide a tool for understanding the role of a set of key individuals in the making of early European human rights law. Although there is little doubt that much of their credibility was due to their symbolic power as a sort of ‘honoratiores of law’, more important perhaps is the question of what kind of law and legal rationality was being generated by this ‘legal nobility’. Was it - following the scheme of Max Weber - ‘formal irrational’, ‘substantively irrational, ‘formally rational’, or ‘substantively rational?’ This study generally suggests that the answer is somewhere between ‘formally rational’ and ‘substantively rational’ law, leaning toward the former rather than the latter.

This interpretation is partly based upon the fact that the general corpus juris on European (and international) human rights was practically nonexistent at the time and, thus, could not serve as a source of legal certainty. As well, the ECHR institutions’ initial mode of production clearly favoured a caseby-case approach which allowed for balancing national interests and general objectives of human rights. Their initial operations suggest a very subtle balancing act between pursuing the law of human rights and convincing the member states of both the importance and reasonableness of their practices.

The few cases that made their way to the European Commission of Human Rights – and the even fewer that went to the Court – were for the same reasons of crucial importance in respect to building these institutions. As A. W. Brian Simpson has dryly noted, the ones on trial during the early period were, in fact, not the member states but the Court and the Commission. It was not until this initial ‘trial period’ was over, beginning in the mid-1970s, that these institutions could substantially rationalise the law of European human rights; that is, they could neutralise and even reduce the underlying political compromises which had predetermined both the institutional framework and the normative contents of European human rights.

The history of the postwar European human rights regime stands out from the other international and regional human rights systems developed during thesame period. This should, however, not overshadow the fact that European and international human rights are deeply enmeshed in the same twentiethcentury history. The European Convention continued a legal-politico project already commenced by the UN of impeding large-scale confl ict and the rise of militant ideologies by developing international law. The European version of this postwar strategy of international law-making, however, almost immediately gained a set of different drivers and characteristics. Although both European and UN human rights were drafted against the background of the atrocities of World War II, the main driving force behind the European regime became the fear of Soviet imperialism into Western Europe. Almost from the outset, this Cold War dimension created a political unity among the negotiating states, which gave the whole undertaking of institutionalising and developing human rights law a decisive sense of urgency and necessity. The European human rights project, thereby, came to differ significantly from the UN human rights regime. If the UN Human Rights Commission was to be paralysed by Cold War-inspired confrontations, the European human rights regime was fuelled by Cold War-enthused sentiments. This starting point only later and gradually transformed toward an idea of European human rights as a dynamic area of law. As well, the idea of European human rights as the underpinning politico-moral framework of European integration, which originally had been evoked as part of Cold War strategy of the late 1940s, has only recently been achieved with the post–Cold War transformations of Europe.

When seen in respect to the broader history of postwar international human rights, the case of European human rights both confi rms some general trends and supplies a number of important nuances. It, fi rst and foremost, confirms the paramount importance of Cold War politics on the development of human rights. Focusing on the European case provides, however, a much needed correction to the widespread assumption that the development of human rights was brought to a standstill by the Cold War. This analysis argues in contrast that the Cold War was highly decisive to the evolution of European human rights. In fact, the early politics of European human rights necessarily have to be understood in the light of what has been termed the Cultural Cold War; that is, European human rights was not only part of the ideological contest of the period, it was also part of its cultural battle. The struggle for European human rights, in other words, constitutes a highly central but much overlooked component of the Cold War at large. This chapter also confi rms the importance of decolonisation on the development of human rights. In this analysis, decolonisation has not been explicitly emphasised, but it nevertheless appears as the main explanation of the reluctance of France and the United Kingdom. For these two imperial societies, it was vital to maintain that the postwar universalisation of human rights was not in contradiction to colonial politics. Whereas this was more or less achieved on the UN level, European human rights posed a much more serious threat to imperial sovereignty. Ithas been argued that the European Convention played a direct role in the closing act of the British Empire. Following the analysis suggested here, it is more plausible to argue that for European human rights to develop beyond the initial legal diplomacy analysed in this article, it had to await the end of European empire. More precisely, it was only with the fading of colonial conflicts that the European human rights institutions were in a situation where they had the liberty to sharpen the legal tools of the Convention without substantial protest from the larger member states.

This is further linked to a general claim in the literature that the 1970s saw the real breakthrough of international human rights. As concerns European human rights, many of the central legal notions – ‘living instrument’, ‘practical and effective’ etc. – did emerge toward the end of the 1970s. However, European human rights did not simply join the bandwagon of human rights activism of the 1970s and 1980s. The metamorphosis of European human rights during the period was, above all, made possible because of the crucial processes of legitimisation of the previous period. This also explains why European human rights law could develop as rapidly and substantially as it did throughout the 1980s compared to other human rights regimes. For the same reason, most analysis of the European human rights regime understands current European human rights as marked by progressive law, not legal diplomacy. A sharper look at the contemporary practice of perhaps the most central legal principles of the early period, the notion of the (national) ‘margin of appreciation’, however, reveals a more complex picture. The success of European human rights, it appears, remains dependent on the Strasbourg institution’s ability to strike a balance between the national and the European.

In the early period, this diplomacy concerned balancing European law and national politics, while today it concerns balancing national and European law. Nevertheless, it is a crucial act of diplomacy performed by jurists.