Search
Generic filters
Filter by Categories
Publications
Blog
Upcoming Series
Filter by content type
Authors

Time to Leave the ECHR. The Strasbourg Court is neither legal, nor democratic

This week the European Court of Human Rights ruled against Switzerland for its record on climate change.  But, says Martin Howe KC, though the court purports to ‘interpret’ the convention, it changes its content. As the UK has found, it is one of many  cases in which the Court interferes with the legitimate rights of a sovereign nation, without a legal or democratic basis.

 

The decision this week by the European Court of Human Rights at Strasbourg in the case of Verein Klimaseniorinnen Schweiz v. Switzerland (Grand Chamber judgment of 9 April 2024) is appalling but in many ways not surprising. It represents just the latest step in the persistent course of judicial activism, disregard for the rule of law, and contempt for legitimate democratic processes which that Court embarked on many years ago. For the dwindling but still surprisingly large number of people in the UK who still think that we should continue to belong to the European Convention on Human Rights, this latest judgment should represent a wake-up call compelling them finally to abandon that position.

The case was brought by a Swiss climate pressure group and some carefully selected individual plaintiffs, who contended that Switzerland had taken insufficient action to combat climate change and this breached their human right to be protected against the adverse effects of climate change. The Court upheld the claim of the Verein (Association) itself (although interestingly it reflected the claims of all the individual plaintiffs) that Switzerland was in breach of Article 8 of the Convention which protects the right to respect for private and family life.

The basis on which the Court decided this was that in its view “Article 8 of the Convention encompasses a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life.” It went on to hold that the Swiss Confederation had failed to comply with its “positive obligations” under the Convention concerning climate change.

The European Convention on Human Rights, a document drafted in the 1950s, contains no mention of climate or climate change. It is clear that the States who drafted and agreed the Convention as a protection for fundamental individual rights as a post-War safeguard against countries sliding back into fascism or totalitarianism did not intend to set up a court with power to review the policies of States on matters such as climate change.

Nor does the wording of the Convention provide any support for that. Article 8 itself simply says that “Everyone has the right to respect for his private and family life, his home and his correspondence.” As originally conceived and understood, this was a narrow right concerned with limiting unjustified State intrusions into the private space, such as unjustified home entries and searches or interception of communications.

However it has been progressively expanded in scope by the case law of the Strasbourg Court in many directions. Article 8 now notably represents a significant threat to freedom of press, since the Strasbourg Court has converted what was drafted as a shield into an offensive weapon by holding that it requires States to restrict the freedom of non-State actors to communicate information about a person if it is considered “private”. Such “private” information, the Court has held, includes photographs taken of a celebrity in a public street.

The Court has also extended this right in the past into environmental policy, holding that a State can be in breach through a failure to regulate private industry “in a manner securing proper respect for rights under Article 8.”

The problem with environmental policies is that they involve trade-offs and judgements over many factors, such as assessing what harm is done and to whom by the problem being addressed, the effects (both positive and negative) which will be created by possible policies to address the problem, the costs, both economic and non-economic, of adopting a policy, and an often complex overall assessment of whether or not more harm than good may be done by any particular policy.

Such decision making needs to occur through the political process, in which democratically accountable politicians weigh the different interests and reach a decision. Courts and judges are entirely unsuited for taking this kind of decision, both because of their narrow focus on the parties who happen to be before the court rather than the affected population in general and because of their limited expertise or total  lack of expertise in this field. When courts enter this field, they end up taking decisions which are inherently political rather than judicial.

Article 8, despite its hyper-extension by the Court into the field of environment, contains what should be a safeguard against this kind of judicial decision making. That is that it is not an absolute right but rather a “qualified” right. This is made clear by Article 8(2) which permits that prima facie right to be interfered with if necessary in a democratic society for a number of reasons including the rights and freedoms of others. Since Switzerland’s climate policies are made through its extremely democratic processes including referenda it is very hard to see what gives the Strasbourg Court a right to overrule those democratic processes and put the rights of one minority group of disappointed voters over the rights of others who disagree.

The Strasbourg Court seeks to justify its overturning of Swiss democracy in no less than 657 paragraphs of reasoning encompassing the Kyoto Protocol, the Paris Agreement, European Union court decisions (even though Switzerland is not a member) and what in its view were “critical gaps” in the Swiss democratic process, and giving overwhelming weight to the frequently referenced “scientific evidence”. In a particularly sinister sentence at paragraph 421, the Court said: “However, democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law.

This then begs the question of who it is who is breaching the rule of law. It is a fundamental principle of international law that States are bound by the treaties they sign which “shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object of purpose.” This fundamental rule, codified in Article 31(1) of the Vienna Convention on the Law of Treaties, gives primacy to the words used.

States are bound by the words they have signed. The object and purpose of a treaty, which necessarily have to be assessed when it signed, may be taken into account to interpret the words but not to over-ride or substitute for them. But the Strasbourg Court has adopted its so-called “living instrument” doctrine under which it claims the right to change the meaning of the Convention as time goes on. That means that member States of the Convention are subjected to obligations which are quite different in nature and scope from the obligations which they agreed to and signed up to.

That represents a decades-long assault by the Strasbourg Court against the international rule of law and, as can be seen graphically from this Swiss case, against democracy itself.

This case is only the most recent of a long series of cases in which the Strasbourg Court’s activism has interfered with the legitimate rights of this country without a proper legal or democratic basis by purporting to “interpret” the Convention but in fact changing its content. Our ability to prevent illegal migration across our borders has been reduced to ineffective chaos by the Court’s introduction of extensive asylum rights into a Convention which was never intended to contain them. Our military operations abroad are hamstrung by the Court extending the reach of the Convention outside the borders of its member States directly contrary to its text.

Unfortunately, it is no longer possible to leave the jurisdiction of the Strasbourg Court without leaving the Convention as a whole. But given the great damage caused by this Court to the UK’s national interests and the clear threat it poses to our democratic processes, what is actually the case for staying in the Convention?

As the country with the longest established and deepest tradition of the protection of fundamental rights going back over 800 years to Magna Carta, we do not need it to safeguard our liberties. We can do that under our own law. Other Commonwealth countries seem perfectly able to safeguard the rights and liberties of their citizens without needing to subject themselves to some strange regional court in order to do so.
There is an argument that we need to continue to belong to the Convention under the Belfast (Good Friday) Agreement but under close examination this falls away. This requires us to ensure that legislation enacted by Stormont can be challenged under UK domestic law if not compatible with Convention rights. We can continue to allow this under our domestic law without needing to belong to the Convention internationally.

The reasons for continuing to belong to the Convention seem to boil down to a vague argument that it would somehow be bad for our “standing” if we were to leave, and that we would be “like Putin” if we were to leave. The argument used to be that by belonging to the Convention we would make Putin behave, an always absurd argument which has collapsed for obvious reasons. However it is completely unclear in what way our “standing” would be affected by an entirely lawful decision to leave the Convention by giving 6 months notice, on the principled basis that we can no longer accept the abuses of judicial power and threats to democracy perpetrated by the Strasbourg Court.

The concrete case for leaving without further delay is overwhelming, It is no longer acceptable for our weak-as-wetwipes Prime Minister to make vague noises that he might “consider” leaving the Convention in a futile attempt to forestall the electoral oblivion which will shortly be upon him and his administration.

Martin Howe KC

Martin Howe KC is a barrister in the fields of intellectual property and EU law at 8 New Square. The Chairman of Lawyers for Britain, his Politeia publications include Avoiding the Trap – How to Move on from the Withdrawal Agreement (2019) and How to leave the EU: Legal and Trade Priorities for the New Britain (2016).

View All Posts