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

Seth Johnson seth.p.johnson at gmail.com
Sun Dec 14 02:47:01 EET 2014

On Sat, Dec 13, 2014 at 1:20 PM, Norbert Bollow <nb at bollow.ch> wrote:
> 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.

I buy that there are courts that have been specially designated with
the role of addressing constitutional matters.  But any place that has
courts and a constitution will have courts that play that function.
By "taking a law to court" I mean you don't get to go to the court as
an individual and say you think it should not have been passed just
because it's opposed to the constitution.  You don't get standing to
enter the court and go before a judge with that kind of argument, in
part because that would subject laws to all sorts of constant second
guessing by everybody.  You do that in legislative channels, through
representatives charged with the power to pass laws.  Or you'd gave to
have some sort of intermediary minister of some sort who would
shepherd claims like that.  It's part of the systemic design of
constitutional representative systems.  You have to have been affected
by the law and enter a claim against a party you hold harmed you, to
enter the court and present a constitutional argument.  That's what it
means to have to have a case or controversy.

> 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.

I would not argue on ideal terms like the immediate above paragraph.
It doesn't actually work well unless you have a proper constitutional
foundation.  I would corroborate some of what you're saying in those
terms.  However, the converse side of the question of how rights work
is that they are far more solid and grounded properly at national
levels -- and we have not actually reached that level of foundation at
the international level.

> 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.

I agree that judicial review is critical -- that's how we secure
rights against acts of the government.

I think I understand the role that constitutional courts play in your
picture.  I'm not convinced that they're very different in the terms
I'm describing -- if they are actually different in some discernible
way in how they take up constitutional questions.  I don't think they
actually work differently when you look at it in these terms.

> 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.

Yes, it has been accorded the responsibility, yet still it's a product
of governments, not an act of the people setting the terms on all the
governments that ostensibly take part in it -- including those you
note choose not to adhere to it.  It doesn't have the same sort of
role that a court within a government set within limits given by their
people in a constitutional act.  This is important in terms of the
kind of weight fundamental rights have in the deliberations of that
court.  Governments' claims of countervailing considerations have far
more weight there than in a place where we've set a strong foundation.


> Greetings,
> Norbert

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