Monday, 30 April 2007
These measures were agreed in May 2004 between the member States of the Council of Europe in the form of Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention.
But, in order to enter into force Protocol No. 14 needed the ratification of every member State of the Council of Europe; 45 out of 46 members actually ratified the amending Protocol, but sadly the Russian Parliament did not.
The result in this case is a steadily deteriorating situation for the Human Rights control mission of the Court.
Protocol No. 14 is one more example of the fragility of institutions and procedures based on the rule of unanimity in international relations.
Saturday, 28 April 2007
Last year the Court gave 1,560 judgments and dismissed or struck out 28,000 applications, but around 50,000 new applications were made to the Court.
Thus, the situation is quickly worsening. At the beginning of 2007 there were 90,000 cases undecided.
In the long term the member countries should be able to secure the rights and freedoms they have promised to respect in the Convention for the Protection of Human Rights and Fundamental Freedoms and their judicial systems should manage to uphold the rule of law, but today there are serious problems in some of the newer member countries in the East.
The European Court of Human Rights is supposed to be a last safety net, “after all domestic remedies have been exhausted”, but now the Court is all too often called upon to remedy grave, systematic deficiencies on the national level. In the short run something has to be done to help the Court.
The Court has tried to streamline its procedures internally and the Council of Europe has looked for resources and remedies, but the situation is still dramatic.
For 2006 see (in Swedish):
· Regeringens skrivelse 2006/07: 81 Redogörelse för verksamheten inom Europarådets ministerkommitté m.m. under 2006
· Betänkande 2006/07: ER1 Redogörelse till riksdagen från Sveriges delegation vid Europarådets parlamentariska församling
The part session of the Parliamentary Assembly ended last week – www.coe.int – highlights three preoccupations for the organisation: Is the human rights situation in the “Wild East” backsliding rather than improving? What to do about the worsening case-load of the European Court of Human Rights? The relationship between the European Union and the Council of Europe is causing some worry, at least to the latter.
Friday, 27 April 2007
The European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law (Treaty on European Union, Article 6).
The provisions of the European Social Charter (1961) of the Council of Europe may be one of the sources for the constitutional traditions common to the European Union countries, as general principles of European Community law.
Article 136(1) of the EC Treaty expressly mentions the (old) European Social Charter:
“The Community and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.”
The politically binding Charter of Fundamental Rights of the Union (2000) draws heavily upon the European Social Charter (1961 and 1996).
The Treaty Establishing a Constitution for Europe (2004) would, were it to come into force, enshrine the Charter of Fundamental Rights as Part II of the new Treaty.
In 1996 the member states agreed to open a revised European Social Charter for signature. The revised Charter is designed progressively to replace the original Charter.
A decade later, exactly half of the members of the Council of Europe have ratified the revised Charter.
The European Social Charter (1996) illustrates the aims of European politicians to combine market freedoms with social and economic rights for employees. The following rights and principles are first mentioned as aims and later specified with a view to ensuring their effective exercise:
1. Everyone shall have the opportunity to earn his living in an occupation freely entered upon.
2. All workers have the right to just conditions of work.
3. All workers have the right to safe and healthy working conditions.
4. All workers have the right to a fair remuneration sufficient for a decent standard of living for themselves and their families.
5. All workers and employers have the right to freedom of association in national or international organisations for the protection of their economic and social interests.
6. All workers and employers have the right to bargain collectively.
7. Children and young persons have the right to a special protection against the physical and moral hazards to which they are exposed.
8. Employed women, in case of maternity, have the right to a special protection.
9. Everyone has the right to appropriate facilities for vocational guidance with a view to helping him choose an occupation suited to his personal aptitude and interests.
10. Everyone has the right to appropriate facilities for vocational training.
11. Everyone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable.
12. All workers and their dependents have the right to social security.
13. Anyone without adequate resources has the right to social and medical assistance.
14. Everyone has the right to benefit from social welfare services.
15. Disabled persons have the right to independence, social integration and participation in the life of the community.
16. The family as a fundamental unit of society has the right to appropriate social, legal and economic protection to ensure its full development.
17. Children and young persons have the right to appropriate social, legal and economic protection.
18. The nationals of any one of the Parties have the right to engage in any gainful occupation in the territory of any one of the others on a footing of equality with the nationals of the latter, subject to restrictions based on cogent economic or social reasons.
19. Migrant workers who are nationals of a Party and their families have the right to protection and assistance in the territory of any other Party.
20. All workers have the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex.
21. Workers have the right to be informed and to be consulted within the undertaking.
22. Workers have the right to take part in the determination and improvement of the working conditions and working environment in the undertaking.
23. Every elderly person has the right to social protection.
24. All workers have the right to protection in cases of termination of employment.
25. All workers have the right to protection of their claims in the event of the insolvency of their employer.
26. All workers have the right to dignity at work.
27. All persons with family responsibilities and who are engaged or wish to engage in employment have a right to do so without being subject to discrimination and as far as possible without conflict between their employment and family responsibilities.
28. Workers’ representatives in undertakings have the right to protection against acts prejudicial to them and should be afforded appropriate facilities to carry out their functions.
29. All workers have the right to be informed and consulted in collective redundancy procedures.
30. Everyone has the right to protection against poverty and social exclusion.
31. Everyone has the right to housing.
The principles in the European Social Charter influence policies and lawmaking in the European Union and the European Community as well as on the national level in Europe. Doing business in Europe has its own flavours.
Thursday, 26 April 2007
Are the values of democracy, the rule of law and human rights and fundamental freedoms universal? Are they even European?
The Parliamentary Assembly of the Council of Europe noted that “acceptance and realisation of the principles of democracy, the rule of law and human rights and fundamental freedoms are a necessary condition for membership in the Organisation” (Resolution 1547, 18 April 2007).
But the same Assembly sees “a need to reduce the gap between standards on paper and the reality on the ground”.
Terrorism poses interesting questions on the real effectiveness of these values.
The Parliamentary Assembly stated that even the most serious human rights violations, such as enforced disappearances, extrajudicial killings, secret detentions, torture and inhuman treatment, still occur in Europe, and that impunity, even for these most serious human rights violations, has not been eradicated in Europe.
The Parliamentary Assembly, at least, seems to share some fundamental values: “Terrorism is one of the key challenges for Europe’s open societies; it can and must be vanquished without violating the very principles of human rights, the rule of law and tolerance that terrorists are out to destroy.”
The Assembly called upon all member states to “fully respect human rights while fighting terrorism, as already requested by the Assembly on numerous occasions, refuse to expel or extradite any individual to a country where there is a real risk of him or her being subjected to serious human rights violations, regardless of assurances received, as well as to sign and/or ratify at the earliest opportunity the Organisation’s conventions and instruments pertaining to human rights, including those on combating terrorism.”
It is not clear how much government departments or governments in member states have aided and abetted human rights violations, but in spite of less than enthusiastic co-operation from some European governments, there have been efforts within the Council of Europe and the European Union to uncover the truth, and some judicial proceedings have been initiated in member states.
Far from perfect, this state of affairs can be contrasted with the atmosphere of impunity surrounding the so called War on terror.
Have human rights and fundamental freedoms become shared or dividing values for Europe and the USA?
With 46 member states the Council of Europe is a Pan-European organisation, which has managed to conclude 200 international treaties, including the amendments.
Perhaps there is some reason to see the emergence of a Pan-European legal area, as suggested by the title of the book “Le droit du Conseil de l’Europe – Vers un espace juridique paneuropéen” by Florence Benoît-Rohmer and Heinrich Klebes (Council of Europe Publishing, 2005); published in English as “Council of Europe law – Towards a European legal area”.
The Council of Europe works intensely with the member states to aid their progress towards democracy, human rights and the rule of law. Some of the new Eastern European members are still way off the values they have professed to share with the rest of Europe.
The conventions and the activities of the Council of Europe are wide-ranging, including:
· human rights
· rule of law
· co-operation between local and regional authorities
· social and economic rights
· intercultural dialogue
· migration and integration
· national minorities and minority languages
· gender equality
· rights of the child
· mass media
· animal welfare
Most conventions have reporting and monitoring mechanisms, which means that the Council exerts (gentle) pressure on the member states to raise their standards of legal protection.
If this preventive work fails, individuals have a safety net in the Convention for the Protection of Human Rights and Fundamental Freedoms and in the European Court of Human Rights.
Any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the states, can apply to the Court after all domestic remedies have been exhausted (ECHR Art. 34–35)..
The Court’s case-load has increased dramatically, both as a consequence of expansion and of citizens being more prone to demand fair treatment from their governments.
Wednesday, 25 April 2007
One of the first realisations of improved relations between the Western European countries after World War II was the Council of Europe. Its Statute was signed in London in May 1949 by ten countries: Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom.
The Council of Europe is an inter-governmental organisation, where the governments co-operate: the Committee of Ministers is the organ which acts on behalf of the Council (Article 13). The Consultative Assembly has had to work hard to be secure in the right to have its members chosen by the national Parliaments and to be accepted under the name of Parliamentary Assembly.
Three Nordic countries were among the signatories in 1949 and Iceland joined the Council of Europe the next year. It took until 1989 for Finland to join, as the last among Western European nations.
The fall of the Berlin Wall led to a rapid expansion of the Council of Europe, which has become Pan-European in character. There are now 46 member states, comprising almost the entire continent.
The general aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress; Statute, Article 1(a).
The Statute, Article 1(b), allows for agreements and common action in economic, social, cultural, scientific, legal and administrative matters, but the Council is known primarily for its achievements “in the maintenance and further realisation of human rights and fundamental freedoms”.
Article 3 lays down the provisions for membership of the Council of Europe:
“Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the Council as specified in Chapter I.”
Recently the Parliamentary Assembly, in its April 2007 Resolution 1547, elaborated that membership is based on three pillars:
· the enjoyment by all persons within the jurisdiction of its member states of human rights and fundamental freedoms,
· the consolidation of the rule of law and
· the existence of a genuine pluralistic democracy, based on the spiritual and moral values which are the common European heritage.
The Council of Europe has become the guardian of human rights, democracy and respect for the rule of law in Europe.
Among the main control mechanisms of the Council of Europe are:
the European Convention for the Protection of Human Rights and Fundamental Freedoms (including the European Court of Human Rights),
the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment,
the revised European Social Charter and
the Framework Convention for the Protection of National Minorities.
The influx of former Communist states from Central and Eastern Europe has put a severe strain on the capacity and standards of the Council of Europe, including the European Court of Human Rights. But at least the improvement of human rights, democracy and respect for the rule of law are firmly on the agenda of the Old Continent as a whole.
It takes the outward size of my EU passport and 58 pages to house a Preface, the Declaration of Independence, the Constitution of the United States of America and two hundred years worth of Amendments to the Constitution of the USA. Well, I have to admit that my passport is slightly slimmer with only 42 pages.
What the Member States of the European Union managed to sign on 29 October 2004, as an agreement on a Treaty Establishing a Constitution for Europe, is in printed form a hefty book with 448 Articles and about 272 pages of protocols, annexes and declarations, 482 pages in all.
The modernised Treaty would show less of the split between the European Community and the European Union, formally collecting the existing Treaties under the EU hat, and the new Treaty would be easier to read and to navigate than the existing ones. Heavy reading, still.
After the unfortunate referendums in France and the Netherlands the Heads of State or Government of the Member States (the European Council) may choose to chop large parts of the Constitutional Treaty in order to save a few essential reforms to enable a Union of 27 members to function.
The result would be even more multi-layered than today, a harder read, because the existing Treaties would still be there.
What does the relative brevity of the US Constitution show in comparison with the verbosity of the EU Treaties, existing or future?
Well, two centuries may have led to new perceptions of style, but perhaps the main difference is the attitude towards the enumerated powers of the Union.
The powers of the US Congress and the President are succinctly mentioned in the US Constitution, whereas the European Union is given clearly less powers, hedged with substantial and procedural caveats.
Less is more.
Tuesday, 24 April 2007
The several States (former Colonies), thirteen in number, joined in arms to prevent their return under British rule. The Declaration of Independence (1776) was soon followed by the first Constitution in common, the Articles of Confederation of 1777. However, ratifying the Articles took four years.
These freedom loving States had managed to form a loose Confederation. A Congress, comprising representatives of sovereign States, was the only political body holding them together and leading the efforts to conduct a taxing war. Financing for Washington’s army and other expenditure could be raised only by requisitions from the States; in effect, by begging.
When, in spite of the inherent weaknesses of the Confederation, the War of Independence was concluded successfully, the Continental Congress lost most of its meagre powers. The several States started to drift from each other. Local and more or less direct democracy was the order of the day. The Confederation had accrued huge foreign debts, but had no means to service them. Internal strife, troubles and currencies of decreasing value added to the gloom.
Was this what the men of the Colonies had fought and died for? Was it possible to find a way to guarantee internal and external security? How could the conditions for trade be improved and the opportunities of a vast continent be harnessed?
These were some of the questions confronting the representatives of the States, when they met in Philadelphia. They rose to the challenge by writing a republican, federal Constitution during four months in 1787. After intense debate the Convention managed to forge a compromise, which was unique for its time. All power emanated from the people, but several checks were put in place to secure deliberation over passion. The legislative power, the executive and the judiciary were separated, but forced to interact by way of checks and balances. Central government, the Union, was given crucial powers, but the individual States preserved extensive tasks.
The American Constitution was short, clear and easy to read. Congress had the power to lay and collect taxes, to pay debts and provide for the common defence and general welfare of the United States and to make all laws necessary and proper for carrying into execution the federal powers enumerated in the Constitution.
The Constitution opened up the eventuality of constitutional change, on fairly rigorous conditions: ratification by three fourths of the States.
After the first ten Amendments, the Bill of Rights, changes to the Constitution have been few and far between.
With hindsight, it may be astonishing to find that the ”divinely inspired” Constitution – the oldest one in force in the world – was not received by an overjoyed people. Instead, the battle between federalist proponents and anti-federalist opponents of the Constitution raged in every ratifying State.
In the end all thirteen States ratified the new Constitution. The United States of America had taken a crucial step towards becoming a prime object for admiration, envy and hate.
In one decade these colonial “bumpkins” had managed to amalgamate their European heritage from Antiquity to the philosophers of the Enlightenment with their own experiences as largely self-ruling colonial settlements into a federal structure based on republican and democratic values and the rule of law, including basic human rights.
Two centuries of European history, in contrast, experienced almost incessant wars, from Napoleon to the end of World War II; in Central and Eastern Europe democracy and human rights did not start to blossom before the 1990’s, after the fall of the Berlin wall.
Fifty years have passed since the signing of the Rome Treaties, which led to the European Economic Community and Euratom. There have been treaty revisions, from the EEC to the European Community and to the European Union. The EU has seen two treaty revisions realised and a third one agreed on, but the legal basis of the European Union owes as much to the Articles of Confederation as to the US Constitution, even in the form signed by all the Member States in 2004, the Treaty Establishing a Constitution for Europe.
Should the Constitutional Treaty be ratified and enter into force, further amendments would be well nigh impossible: still dependent on ratification by every Member State (27 today) and consequently hostage to the veto power of any Member (or additionally its voters, if submitted to a referendum).
The European Union may have a larger population than the United States, but the EU is and is going to stay a giant on clay feet for the foreseeable future.
But the Founding Fathers, who wrote the Constitution in 1787, were not all-inclusive. “We, the people” became rather less.
The debates in the Philadelphia Convention and beyond drew their strength from the world view of the representatives, but they also mirrored their limitations.
Democracy in Athens belonged to free, male citizens. Aliens, women and slaves were excluded. The Roman republic followed the same principles. In addition, real power was in the hands of the patricians, whereas the common people (plebs) mainly had the power to veto obnoxious legislation.
Universal voting rights were not a common occurrence internationally. The provinces of the Netherlands had rid themselves of autocratic rulers, but power was in the hands of the wealthiest merchants. The House of Commons in Britain gave parts of the population a share in power, alongside a monarch and the lords of the realm.
The best models of rule by the people were to be found in the colonies’ own pre-constitutional history.
Writers of the Enlightenment, like Locke and Montesquieu, formed a third ingredient of the world view of the leading representatives.
Slaves and wealth
Many of the representatives of the Southern states owned vast plantations based on slave labour, and quite a few had acquired large speculative “uninhabited” land holdings.
In general, the Founding fathers were educated and prosperous men, who wanted to safeguard property and temper the passions of the people at large.
Still, a revolutionary outcome
Still, the outcome of the Convention was revolutionary for its day. The Constitution did away with monarchs and hereditary nobility, and laid all political decisions in the hands of bodies deriving their powers directly or indirectly from the people.
The people entitled to vote was more or less the whole white male population of those who were of age.
…but not without its limits
”Indians not taxed” were outside the group of voting citizens.
Voting rights for women became an issue much later, advancing on state level from 1910, until Amendment XIX (ratified in 1920) enshrined:
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”
The slave population in the Southern States was excluded from the category of free persons and thus from suffrage, but three fifths of their numbers were to be included in the apportioning of Representatives and Taxes among the States.
The union could be preserved only at the expense of allowing the Southern States to persevere in slave ownership. The Northern States could only achieve the possibility to tax the importation of slaves and a clause to empower Congress to prohibit the importation of slaves in 1808, at the earliest (Article I, Section 9). (Euphemistically, the word “slave” was not written into the Constitution.)
The question of slavery came back to haunt the Union, when the South seceded. Only the armed victory of the North preserved the Union and led to the abolition of slavery, by Amendment XIII, ratified in 1865.
In spite of this, and the XVth Amendment (ratified in 1870) on the right to vote regardless of “race, color; or previous condition of servitude”, segregation based on race continued with impunity in the South for a century, effectively denying black persons their rights as citizens.
Michael Kammen has edited an interesting compilation of documents and illuminating correspondence between leading personalities in: The Origins of the American Constitution – A Documentary History (1986).
Two Signet Classics (2003) shed light on the battle for and against ratification of the Constitution, namely Clinton Rossiter (ed.): The Federalist Papers (by Hamilton, Madison and Jay) and Ralf Ketcham (ed.): The Anti-Federalist Papers and the Constitutional Convention Debates.
In The Unknown American Revolution – The Unruly Birth of Democracy and the Struggle to Create America (Viking, 2005), Gary B. Nash describes the struggle for independence from the point of view of the marginalised groups: women, Indians, Negroes and the poor.
Kelly, Harbison och Belz: The American Constitution – Its Origins and Development, Volume I (Norton, 7th ed., 1991) leads the way from constitutional pre-history in the colonies to the landmark decisions which shaped relations within the federal system.
Hugh Brogan: The Penguin History of the USA (Penguin, 2nd ed., 1999) is a superb general history of the USA.
In The Penguin History of the USA Hugh Brogan states:
The degree of one’s understanding of the Constitution is to a large extent the degree of one’s understanding of the United States.
Given their knowledge of the world and their experiences of colonial rule, which freedoms seemed worthy of special protection in the newly independent Union?
The first ten Amendments, additions in practice, known as the Bill of Rights, express the concerns of late 18th Century Americans. Ratified in 1791, the Bill of Rights still form the nucleus of modern, international declarations of human rights and modern constitutions of the world.
The American Bill of Rights is part of the common legacy of humanity:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
"We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness - That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed ...".
The Declaration of Independence was followed by the Constitution of the United States of America in 1787, a constitution still in force.
In comparison, the history of Europe makes for grim reading until the end of World War II, and in Eastern Europe well beyond that.
Monday, 23 April 2007
I am going to write on European and Finnish law mainly, although starting off with a quick view of civil liberties in the United States of America.
My style is going to be predominantly factual. But if you share an interest in the Council of Europe, the European Union, the European Community or Finnish law, you might find some nuggets eventually.