The European Court Of Human Rights: A ‘Culture of Bad Faith’?
| DOI | http://doi.org/10.1111/1758-5899.12191 |
| Date | 01 November 2015 |
| Published date | 01 November 2015 |
| Author | Noemi Manco |
The European Court Of Human Rights: A
‘Culture of Bad Faith’?
Noemi Manco
Paris
Abstract
The aim of this article is to show the gap between discourse and practice at the European Court of Human Rights
(ECtHR) in Strasbourg. In fact, while the lexical field of human rights revolves around terms like ‘absolute’and ‘inviola-
ble’, the Court has relentlessly sought to soften the clout of the rights entailed in the European Convention it is sup-
posed to enforce.
This article first suggests an explanation as to why the ECtHR fails to take a strong stand in favour of individual
freedoms and against state power. It then proceeds to present the legal array the ECtHR has developed to pursue this
goal.
Human rights can be defined as the basic rights that an
individual may claim vis-
a-vis the state apparatus. Refer-
ences to these rights nowadays are often accompanied
by the terms ‘inalienable’or ‘universal’: terms that imply
consensus, such self-evidence that these rights cannot be
contested.
This paper will argue that a gap exists between the
idea of absolute human rights, and more nuanced prac-
tice –to say the least. The European Court of Human
Rights (ECtHR), a jurisdiction whose very raison d’^
etre is
the protection of fundamental liberties, often finds that
they are neither absolute nor inalienable. Rather, the
ECtHR leaves considerable leeway to state practice, thus
failing to uphold its proactive role in the promotion of
human rights in Europe and, by way of precedent, world-
wide.
1. Modern idolatry or pragmatism?
1.1 Modern idolatry? The unquestionability of rights
The European Convention of Human Rights (ECHR) was
signed in the aftermath of the Second World War, in
an effort to reaffirm the importance of individuals vis-
a-vis state power (Dembour, 2006, p. 70). Its preamble
acknowledges the Universal Declaration of Human
Rights, which starts by reaffirming the ‘recognition of
(...) the equal and inalienable rights of all members of
the human family’[emphasis added]. The ECHR there-
fore embraces, in theory, the fundamental nature of
rights, and the court in its judgments often reaffirms it
(See, for example, Selmouni vs France [1999], ECtHR
25803/94 at 95). The practice in Strasbourg, however,
is quite different, leading Martii Koskenniemi to
denounce a ‘culture of bad faith’(Koskenniemi, 2011,
p. 134).
The ‘inalienable’nature of human rights stems from a
first misconception: that rights are above the realm of
political bargaining, and that the law is immune to, and
not part of, politics (Koskenniemi, 2011, p. 136). The use
of legal rhetoric becomes a political tool to justify a deci-
sion as unquestionable, when indeed it is very much so
(Koskenniemi, 2004, pp. 207–208), thereby avoiding con-
frontation. Presented in different words, Rousseau’s the-
ory of natural law (Rousseau, 1963, p. 7) seems to carry
weight even today.
Second, human rights, with their strong normative
weight, are particularly adapted to such manipulation
(Igniatieff, 2001, pp. 7–9)
1
, as they generally trigger
intuitive adhesion. In that sense, human rights are
comparable to religion (Igniatieff, 2001, p. 151), or even
idolatry (Igniatieff, 2001, p. 53), in so far as they rely
on a pattern of belief that is accepted as such, without
rational proof of existence. History has proved that
human rights are not, empirically speaking, inalienable,
since they have been violated countless times in differ-
ent scales and manners (Igniatieff, 2001, p. 78). In a
self-accelerating movement, it seems that human rights
have become unquestionable because they have been
deemed to be so (Dembour, 2006, p. 1), especially
since the Universal Declaration of Human Rights, with
all its symbolic weight, was adopted in 1948.
The perception of rights as self-evident plays to the
advantage of the ECtHR, which can both pay lip service to
©2015 University of Durham and John Wiley & Sons, Ltd. Global Policy (2015) 6:4 doi: 10.1111/1758-5899.12191
Global Policy Volume 6 . Issue 4 . November 2015
526
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