Sometimes a photo can tell more than a thousand words: this black-and-white picture was taken exactly 75 years ago on 4 November 1950 in the Palazzo Barberini in Rome. Thirteen states (of which one even no longer exists, the Saar, now part of Germany) signed the Convention on Human Rights and Fundamental Freedoms, later much more known under the acronym ECHR. Around the table one can see delegates of these states, only men at the time. At that moment, not many among them could fathom the momentum of the adoption of a new treaty. In fact, it seems almost a coincidental spate of luck of history in hindsight that it came about in the first place. Hopes, or more realistically expectations, among several people in the room were not very high for this short text on human rights. The Belgian former Prime Ministers and then President of the Council of Europe's Consultative Assembly, Paul-Henri Spaak, even formally introduced the signing ceremony by saying: 'It is not a very good Convention, but it is a lovely palace', as Ed Bates recounts in his monumental history on the Evolution of the European Convention on Human Rights.
It was a moment in European history that we celebrate today, exactly 75 years later. This ECHR blog has traveled for just over one fifth of that road along the ECHR's history and will continue to do so in the future. This week, there will be official celebrations in that same palace in Rome and countless seminars and lectures in academia and civil society across Europe. Zooming out from this moment, at the very least two stories could be told:
One is that of immense success: the number of state parties has grown to 46, hundreds of millions of people now fall under the protective scope of the Convention. The protective umbrella of human rights has also expanded in terms of rights, both through Protocols to the Convention, adding key rights such as the right to education, votings rights, and the abolition of the death penalty. Victims of abuses have gained direct access to an independent international court that assesses their claims and plays an important role in acknowledging wrongs and offering remedies and reparations. Social struggles in virtually all ECHR state parties have been aided by also using the tool of litigation before the Court to effect or increase social change. Discriminatory laws have been abolished, freedoms expanded, people in vulnerable situations recognised, states responsible for horrendous acts of torture or enforced disappearances have been held to account. Human rights have become a key language to address societal wrongs. Judges in all the 46 states have been applying ECHR norms and the case-law of the Court and in doing so deeply changed domestic legal orders, making them more open to human rights considerations. and in most cases still, states implement - sometimes very slowly - the judgments coming from Strasbourg.
Another is that of increasing attacks and critique on the Convention and the Court. Earlier this year, the much-debated letter of nine European states calling for an open-minded conversation, specifically in the light of migration debates, put the spotlight on a recurring critique: that the Convention and especially the Court through its case-law, are going too far, are making too much of a dent in national sovereignty. While this may be the loudest, most visible critique, it is certainly not the only one. And it is important to emphasise that just as much critique has come from the other side of the argument, often heard from civil society: that the Court through its case-law is not doing enough, has blind spots, is not progressive enough. Probably every single practising lawyer or researcher can think of a judgment in which they think the Court really got it wrong. Indeed, academic critiques on the case-law and the ECHR system have been there since the adoption of the Convention, going both ways. One should thus be careful not to see the debate simplistically as states versus Court. Yet, it is undeniable that the critique coming from states has been more widespread and public than it used to be. It is especially concerning that this is often based on examples and arguments that do not accurately reflect facts. It is with that concern in mind that recent initiatives such as AGORA have come about to infuse the debate with factually correct information, about the Convention, the Court and its case-law. In the very democratic society that the ECHR was set up to protect, this is crucial. And I also see it as a role for those among us who are academics.
Whichever perspective one takes - and the historian in me would caution against taking one only - it is clear that the Convention has made its mark. Criticism means the Convention matters. Verbal and political attacks on the Court and its case-law means they matter. Calls for reform, whether by adding more rights or by weakening the system in the name of national sovereignty, means the ECHR matters. The thousands of publications about the Convention and the Court mean they matter. And last but not least, the tens of thousands of people turning to the Court to seek justice, means the Convention matters in the lives of people.
Thus, even if the winds of change may be coming (or should one say storms), the building of what the European Convention on Human Rights stands for still holds and is of great value to millions of people, through its Court, through the victims which have bravely litigated thousands of cases, through civil society that has stood firm, through the case-law, the judges - European and domestic - applying its human rights, through the teachers that have raised generations of students about the basics of the Convention, and even through the state parties - the principal bearers of duty, with all their at times blaring failings in that regard. This whole sturdy, ever moving network of sometimes clashing, sometimes cooperating actors is still on the move, 75 years later, forming a membrane around that concise simple text that we now simply call the European Convention. So yes, in spite of all the challenges ahead, blind spots, failings of the past, and processes of trial and error, the ECHR is not only a living instrument, but also one that is alive and kicking. Happy birthday indeed!
