[IRPCoalition] [governance] Putting "Human Rights" in Perspective

[Norbert Bollow]

On Sat, 13 Dec 2014 10:35:30 -0500
Seth Johnson <seth.p.johnson at gmail.com> wrote:

> On Sat, Dec 13, 2014 at 9:46 AM, Norbert Bollow <nb at bollow.ch> wrote:
> > On Sat, 13 Dec 2014 08:57:24 -0500
> > Seth Johnson <seth.p.johnson at gmail.com> wrote:
> >
> >> Hi Norbert -- in your Swiss data retention article, you say
> >> "Switzerland does not have a constitutional court which would be
> >> tasked with reviewing a law in regard to whether it appropriately
> >> respects the constitution and in particular the human rights which
> >> are declared to be fundamental rights in the constitution."
> >> Surely Swiss courts apply fundamental rights.
> >
> > Yes they do, but they are supposed to assume that the law has
> > already been thoroughly vetted during the legislative process to
> > ensure that it does not violate fundamental rights. The job of the
> > courts is only to interpret the law in accordance to the
> > fundamental rights.
> 
> I'm pretty sure the principle here is more that you can't just "take a
> law to court"

In legal systems which have a constitutional court, you can actually
*take a law to court*, claiming that it violates the constitution.

That's how the German data retention law was killed. This was possible
because Germany has a Federal Constitutional Court
(Bundesverfassungsgericht) whose intended purpose includes deciding
that kind of cases.

Also the EU's European Court of Justice has the power to act as a
constitutional court, which is why it was able to kill the EU's Data
Retention Directive.

We don't have any court with that kind of power in Switzerland. But at
least we have the recourse of appealing to the European Court of Human
Rights. 

> Surely the European Court of Human Rights has some sort of document
> stating what types of cases they can consider.

Yes, of course. That is defined in articles 32-35 of the European
Convention on Human Rights, available e.g. at
http://conventions.coe.int/treaty/en/Treaties/Html/005.htm .

>  It might be something
> sort of suspended in the international space, with some governments
> signing on and saying sure create a court, but not necessarily giving
> any strong articulation of how their constitutional orders relate to
> it.

Sure... in fact, as I said, the European Court of Human Rights is not
taken equally serious in all European countries. Generally speaking,
the same countries which simply don't care about their obligations
under the UN-based human rights treaties also don't particularly care
about their obligations under the European Convention on Human Rights.

In fact for very many practical purposes, the obligations under the
European Convention on Human Rights are identical to the obligations
under the UN-based human rights treaties (all of the most central human
rights are in both human rights systems) with just the difference that
the European Convention on Human Rights establishes a Court with the
power to make a country's human rights obligations very very concrete
in a particular context or situation. But making decisions of the
European Court of Human Rights meaningful in the national context is
something that can only be done by each participating country.
The European Convention on Human Rights states that the countries
"undertake to abide by the final judgment of the Court in any case to
which they are parties". Not all countries in Europe are serious about
that. When a country fails to comply, the only thing that can be done
is to inform to the Committee of Ministers of the Council of Europe.

When a country doesn't take its human rights obligations serious (by
this I mean not only treaty-based human rights obligations on the basis
of human rights treaties which the country has ratified, but on the
basis of the principle of universality of human rights I view all
countries and their governments as being morally obligated with the
same obligations regardless of whether they have ratified the concerned
human rights treaty or not) there is in my view little that can be done
from the outside. It's the people of the afflicted country who need to
take action and insist on proper, human rights abiding governance.

Some kind of constitutional court or human rights court is in my opinion
a necessary ingredient. This can be a national constitutional court or a
supranational human rights court like the European Court of Human
Rights provided that respect for rulings of the supranational human
rights court is appropriately institutionalized.

In my view, ideally every country should have its own constitutional
court and it should in addition participate in a supranational human
rights court like the European Court of Human Rights.

> A lot of times governments in the international arena are content to
> cook up a treaty organization and leave it to posterity to figure out
> how it will actually apply.

I am very glad that this is not the case for the European Convention on
Human Rights.

Greetings,
Norbert

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