An excursion into the history of European human rights' legislation: an oppositional view of British "non-Europeanness"?
By Anna Maria Grill
“The Governments signatory hereto, being members of the Council of Europe, […] Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend […] have agreed as follows;” this is part of the preamble of the European Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights (ECHR).
Signed in the Palazzo Barberini in Rome in 1950 by ten ministers representing their states: Belgium, Denmark, France, Iceland, Ireland, Italy, Luxembourg, the Netherlands, Norway, Turkey and the United Kingdom, the ECHR was the first of its kind to ever have existed, and it cannot be denied that it was a product of its time. The context of post-World War II made the creation of some kind of ‘united Europe’ necessary; as Paul-Henri Spaak wrote in his memoirs of the time, “by 1950, the impatient countries demanded supra-national authorities in the key sectors: defence, the protection of human rights, carbon, steel, electricity.”
The drafting and later signing of such a Convention was truly revolutionary; any other international body before the Second World War, as for example the League of Nations, had been ineffective, unrepresentative and not supported; therefore the politicians and representatives who were involved in the ECHR had no experience and were driven only by the goal of creating a foundation to ensure human rights. It was preceded by the movement of non-governmental groups across Europe that were calling for some form of European unity, and the foundation of the Council of Europe in 1949; however it was unforeseen that human rights were to have a significant place in the creation of the new European Community, its legal basis and system.
Article 13 of the United Nations’ Charter of 1945 set the goal of achieving “international co-operation… in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion”, and Article 68 led to the establishment of a Commission on Human Rights. It was especially at the United Kingdom’s insistence, surprisingly enough, that a legally obliging document was drafted, rather than, as the French representative René Cassin suggested, interpreting the UN Charter as authoritative, which in 1948 led to the adoption of the Universal Declaration of Human Rights.
The ensuing official foundation of the Council of Europe in 1949 created a forum from which was later issued the ECHR, in which the British Foreign Secretary at the time, Bevin, dominated its elaboration through his insistence on creating a legally binding document. Bevin was, however, not the first prominent British politician to insist upon such a binding draft: Sir David Maxwell-Fyfe, who had been a rapporteur of the European Movement in July 1942 and a Deputy Chief Prosecutor at the Nuremberg trials, held an animated speech and chaired the Committee on Legal and Administrative Questions which formulated the draft of the European Convention. (The British do love their uncodified Common Law system, but apparently enjoy making up international treaties even more - maybe a demonstration of their constant need to be the leader even in a post-colonial world?)
This led to a Europe-wide debate; on the one hand were those states who approved of rights expressed in terms of loose ‚general principles’; on the other hand were those, including the United Kingdom, that called for a ‘more narrowly defined series of rights’. The difference between the implementation of measures in states with codified civil law systems and those without is to be noted, however, these differences do not run along the lines of the opposing schools of thought, as countries such as Denmark and Norway with civil law systems supported the United Kingdom’s position during the process of drafting the ECHR.
In the understanding of the time, the ECHR was thought more as a shield against Cold War era ‚totalitarianism’, rather than an implementation within those countries that considered themselves already to be a democracy. It is important for this period to differentiate between human rights and anti-colonialism, as they are often combined but are very different in nature: the only connection to be truly undebatable is their commitment to ‘human dignity’, while their differences remain in their comprehension of the threat to the individual and the need to control states to ensure proper legislation. In terms of ‘colonial contradiction’ problems for many of the original signatories, it is interesting to note that only Britain implemented the ECHR to forty-two of its dependencies in late 1953, unlike any of the other states, namely Belgium, Denmark, France and the Netherlands, who also had dependencies and only either implemented the measures much later or not at all before their independence.
On 23 September 1953 the European Convention for the Protection of Human Rights and Fundamental Freedoms entered into force, and with it established the European Court of Human Rights in Strasbourg. The United Kingdom was the first government to ratify the Convention (although it is still an ‘unincorporated treaty’ into UK domestic law); by comparison, France was the last state of the original signatories to ratify the ECHR in 1974. Up until today, all forty-seven member states of the Council of Europe, as a requirement for admission to it, have signed the Convention, meaning that many millions of people are now legally protected - at least in principle.