Chapter 11: The European Court of Human Rights
It’s not hard to find a critic of the European Court of Human Rights these days. I have no intention, in this chapter, of joining this increasingly voluble choir of nationalists, fearmongers, and far-right or authoritarian regimes. What I want to do is to approach the European Court of Human Rights in the context of the relationship between human rights and liberalism, in particular market liberalism, and ask whether Marx would have endorsed the European Court of Human Rights as an intrinsic human good for Europeans.
Could the European Court of Human Rights have convinced Marx that it has succeeded in lifting the veil on abstract rights masking substantive injustices as per his critique of rights in Capital? To what extent has it fought against civil rights becoming a banner for liberal egoism and individualism as per ‘On the Jewish Question’?
There is nothing new in saying that the European Convention on Human Rights was created to fight fascist and authoritarian political regimes and to lock European states into forms of democratic and politically liberal forms of government. Indeed, the phrase ‘necessary in a democratic society’ appears1 in the text of the Convention multiple times when the Convention seeks to restrict rights of expression, association, assembly, privacy, and religion. This suggests that the core purpose of the European Court of Human Rights is to fight the real-time ills of a lack of political liberalism in European societies. The market and the failures of economic liberalism, however, are not part of the purposive development of the Court. Further than this, as seen in the Strasbourg Court’s developing doctrine of deference to democratic parliaments (S.A.S v. France), the primacy of democratic decision making in the court’s case law suggests that as long as the market economy is endorsed by some form of democratic citizen participation (Hatton v. UK), the European Court of Human Rights is happy to let markets be markets.
The only heuristic channel though which the European Court of Human Rights addresses market liberalism is when the consequences of market liberalism pose a danger to its effective rights interpretation doctrine. With a commitment to effective, not abstract, rights, the European Court of Human Rights crosses paths with Marx’s critique of liberal rights in Capital. In the now landmark Airey v. Ireland judgment of 1979, the European Court of Human Rights stood up against the abstractness of Irish domestic law when rejecting the Irish government’s argument that a woman who cannot afford a lawyer in divorce proceedings would still get a fair trial. In paragraph twenty-four of the judgment the court declared that ‘the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’. In doing so it opened the door for the creation of a social, context-sensitive and concrete theory of human rights as opposed to an abstract liberal theory of rights devoid of any context. Thousands of applicants after Airey have told the Court that they did not really enjoy rights while homosexuality was criminalised (Dudgeon v. UK), when rape was not investigated (MC v. Bulgaria), or when their families (Vallianatos and Others v. Greece) or trade unions (Demir and Baykara v. Turkey) were not recognised.
This, however, is indeed a mere crossing of paths. While a Marxist critique of abstract rights turns largely on the abstract forms masking substantive injustices perpetrated by the political economy of liberal capitalism, the European Court of Human Rights criticises abstract rights for their failure to deliver real consequences for an applicant. That applicant, however, can range from a company or a group of individuals who cannot access the real value of their property, to a worker.
The effectiveness of rights in European Court of Human Rights case law has since given birth to other progressive doctrines, namely, the living instrument doctrine (Bayatyan v. Armenia), autonomous concepts doctrine (Alexeyev v. Russia), and the positive obligations doctrine (Dubetska and Others v. Ukraine). All of these doctrines, too, offer opportunities for individuals to challenge constantly changing domestic economic policies and demand more from the state to assist them in their individual or collective self-development. These doctrines, however, also do not tie-in to a thicker view about freeing rights from being mirrors of liberal capitalist economic relations.
In this respect the relationship between effective rights and anti-market liberalist agendas is rather hit-and-miss. The Palomo Sanchez v. Spain decision illustrates this well. Here, the Court was faced with workers using satirical cartoons of managers to highlight the difficulties they had unionising and to show how domestic Spanish Courts were defending the rights of these managers not to be humiliated. The European Court of Human Rights concluded that the Spanish Courts did not act unreasonably when they weighed the right of employers not to be defamed by employees at work as more valuable than the right to free expression of the employee at the workplace—ultimately deciding that the dismissal of the worker by the employer was a proportionate response. Whilst the case helped to make the rights of managers real and effective, workers’ right to expression and work security remained abstract. The European Court of Human Rights did not ask deeper questions about why deference to labour laws structured for an economically liberal system did not pose a challenge to its effective rights doctrine.
How one wants to portray the European Court of Human Rights of course depends on which palette of cases is picked to paint the portrait. What is consistent, though, is that the European Court of Human Rights has given more thought to the necessary conditions for broad political liberal ideals of positive and negative liberties to flourish in democratic settings. The heuristic device of ‘effective rights’ has worked well for this purpose. When it comes to economic liberalism, however, the European Court of Human Rights is an ‘on and off’ interlocutor about how law and rights as forms obscure underlying substantive social and economic relations. We may expect it to continue both to demystify and contribute to the ‘mystification’ of rights2 on a case-by-case basis.