The European Court of Human Rights: judges above politics
The European Court of Human Rights, originally created as a tool to promote civil and human rights, has today become something very different: a tool of arbitrary rule by an unelected judicial elite
I’ve written for UnHerd about the 75th anniversary of the the European Convention of Human Rights and how its handmaiden, the European Court of Human Rights, originally created as a tool to promote civil and human rights, has today become something very different: a tool of arbitrary rule by an unelected judicial elite that effectively holds a veto power over national governments — especially when it comes to the management of illegal migration.
75 years after its founding, the institution that was once seen as a guardian of liberty has become something quite different: a transnational court that functions in practice as a supranational authority, reserving for itself the power to decide, and constantly redefine, what counts as a “human right”.
In recent years, the Court has increasingly come into conflict with elected governments — most notably over questions of migration and deportation. Its critics, particularly in Britain, argue that the Convention has expanded far beyond its original remit, interfering in areas that go to the heart of democratic sovereignty: border control, national security and the prerogative of parliaments to set the law. When nine European leaders signed a joint letter in May this year, questioning whether the ECtHR had overstepped its mandate on migration, the Council of Europe’s Secretary General, Alain Berset, dismissed their concerns outright. “No judicial body should be subject to political pressure”, he declared. The implication was clear: the ECtHR sits above democratic scrutiny; its authority, derived from moral principle rather than electoral consent, is to be accepted without debate. […]
Over the past two decades, the ECtHR has engineered what can be described as a “quiet power grab”. Through a series of legal innovations and doctrinal reinterpretations, the Court has progressively widened its jurisdiction, often beyond what member states ever agreed to. […]
The Court’s defenders insist that it merely applies the principles that states themselves agreed to uphold. Yet this is no longer credible. The ECtHR has, by its own admission, embraced the doctrine of the Convention as a “living instrument” — meaning that its provisions must be interpreted in light of “present-day conditions”. In practice, this gives judges carte blanche to reinterpret and expand the meaning of rights according to contemporary political sensibilities. What began as a limited postwar charter has become an evolving moral code enforced by an unelected elite with a de facto veto power over national law.
The ECHR, however, is only the tip of the iceberg. The Court operates within a wider ecosystem of judicial and technocratic power that extends far beyond Strasbourg. Its rulings are cited by the European Court of Justice, domestic supreme courts and international bodies, and often transcribed into national law. National judges, NGOs and human-rights lobbies use its jurisprudence to influence policymaking. An entire regime of judicialised governance has emerged — what legal scholar Ran Hirschl has called juristocracy: rule by judges.
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Thomas Fazi
Website: thomasfazi.net
Twitter: @battleforeurope
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