{"id":20592,"date":"2023-09-19T14:00:34","date_gmt":"2023-09-19T12:00:34","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=20592"},"modified":"2023-09-24T13:42:25","modified_gmt":"2023-09-24T11:42:25","slug":"locating-progress-in-the-european-convention-on-human-rights","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/locating-progress-in-the-european-convention-on-human-rights\/","title":{"rendered":"Locating Progress in the European Convention on Human Rights"},"content":{"rendered":"

Progress may seem to be a temporal concept. That is certainly how it is usually understood in the literature on progress and international law. Statements of progress are said<\/a>, for example, to entail \u201creflections on the past\u201d and to \u201clink our view of the past with our view of the present and the future\u201d. Work dissecting the role of progress in international law scholarship has underlined<\/a> that a \u201cconception of time is needed to situate advancement in a time frame with past, present, and future\u201d. All this is no doubt true. What the understanding of progress as a temporal concept misses, however, is that it also has a spatial element. Time and space are mutually constitutive, and progress attaches more easily to some spaces than others.<\/p>\n

The time-space of colonialism, in particular, has left a lasting imprint on where progress is located. The civilizing mission<\/a> of colonial states posited Europe as a progressive space, hierarchically superior<\/a> to non-European territories ostensibly lagging behind Europe in civilizational terms. One way in which these civilizational hierarchies have been carried forward to the present is through European human rights law: as Stefanie Boulila has noted<\/a>, notions of modernity and progress have been \u201ca key site for pan-European identification\u201d, with values like human rights claimed as \u201c\u2018at home\u2019 in Europe\u201d. In this blogpost, my aim is to sketch in very broad strokes some ways in which these dynamics of pan-European identification have played out in European human rights law, specifically the European Convention on Human Rights.<\/p>\n

\u201cThe Ideals and Standards of the Great Democracies\u201d<\/strong><\/p>\n

The notion of \u201cEurope\u201d in the Council of Europe (CoE) or of the \u201cEuropean\u201d in the European Convention on Human Rights (ECHR) has, of course, changed over time. When the ECHR was drafted, the first signatory states were almost exclusively Western European. With the Cold War already well underway, differentiation from the communist East was a core function of the ECHR. Anti-communism combined with general tropes of Eastern Europe as semi-civilized<\/a> at most \u2013 tropes which would later rear their head with renewed vigour when Eastern European states joined the CoE and found themselves subject to infantilising demands of \u201ccatching up\u201d to the progressive values of Western Europe (see critically here<\/a>). At the same time, to legitimise the undertaking of a specifically European and legally binding<\/a> human rights instrument, delegates emphasised the like-mindedness and homogeneity of European states and their difference to the rest of the world, often in terms of civilizational hierarchies. In both cases \u2013 demarcation from Eastern Europe and from the rest of the world \u2013 Western Europe figured, through human rights, as the location of progress.<\/p>\n

The travaux pr\u00e9paratoires<\/em> (cited here as \u201cTP\u201d from the Collected Edition of the \u201cTravaux Pr\u00e9paratoires\u201d of the European Convention on Human Rights<\/em><\/a>) provide some examples. Delegates understood human rights as the \u201cindisputable birthright\u201d of Europe (TP I, p. 82) and as \u201csomething different from what we see in Eastern Europe\u201d for which the CoE was to be \u201ca beacon of light\u201d (TP I, p. 130). David Maxwell-Fyfe, the leading British delegate involved in drafting the ECHR, invoked the \u201csimilar outlook\u201d and \u201clong experience\u201d of Western European states with regard to human rights. He described other regions, by contrast, as \u201cunready in temperament and aspiration for the ideals and standards which the great democracies have set for themselves\u201d, either \u201cbecause their political systems are totalitarian or because their civilisations are backward\u201d. He therefore regarded Western European states as \u201cin the most favourable position to set an example\u201d to other nations in matters of human rights (TP I, p. 116).<\/p>\n

Emphasising the \u201clong experience\u201d of Western European states, like the insistence on human rights as a European \u201cbirthright\u201d, speaks to the trope of human rights as \u201cat home\u201d in Europe, which is then extended to their benevolent role as an \u201cexample\u201d for other regions. Progress in the form of human rights is thus located in Europe, only subsequently to spread outwards from there. The image of Europe that shaped the ECHR, then, is one that Fatima El-Tayeb has described<\/a> in another context as \u201calways creating, never receiving\u201d \u2013 a Europe \u201cshaping other cultures, but never being fundamentally touched by them\u201d.<\/p>\n

\u201cThe Task of Bringing Civilization\u201d <\/strong><\/p>\n

The civilizational hierarchies underlying this image of Europe also found their way into the very text of the ECHR in the shape of the so-called \u201ccolonial clause\u201d (Article 56, originally Article 63 ECHR<\/a>). It allows states parties to extend the applicability of the ECHR \u201cto all or any of the territories for whose international relations it is responsible\u201d, hence implying that without a declaration to this effect, the ECHR is not applicable. Similarly, the European Court of Human Rights (ECtHR) is competent to receive individual applications only when a further declaration to that effect is made, and in any case the ECHR shall be applied in the territories at issue only with due regard to \u201clocal requirements\u201d.<\/p>\n

These restrictions quite transparently aimed to prevent the application of the ECHR in colonised territories so that the colonial powers could maintain their self-image as progressive states with spotless human rights records even as they brutally repressed decolonial resistance overseas. The colonial clause did not go unchallenged: most notably, L\u00e9opold Senghor, later the first president of Senegal, warned that it would \u201ctransform the European Declaration of Human Rights into the Declaration of European Human Rights\u201d (TP VI, p. 174). The clause\u2019s inclusion was justified, however, in civilizational terms which once again assumed progress to originate in Europe. The \u201cstate of civilization of certain overseas territories\u201d was stated to not permit the application of human rights, but European states were assumed to \u201cperform the task of bringing civilization\u201d to those territories (TP III, p. 266) and to bring about \u201cthe advance of the colonial peoples and the improvement of their physical and spiritual surroundings\u201d (TP VI, p. 178). Progress in the shape of human rights, then, could only spread outwards from Europe through colonial administration: the white man\u2019s burden and civilising mission par excellence.<\/p>\n

\u201cLong-Established and Highly-Developed Traditions\u201d<\/strong><\/p>\n

The ECtHR\u2019s case-law on the colonial clause built on this localisation of progress in Europe. In the case of Tyrer v. the United Kingdom<\/em> (1978)<\/a>, which concerned judicial corporal punishment (\u2018birching\u2019) on the Isle of Man, the ECtHR was confronted with claims by the Attorney-General of the Isle of Man that public opinion on the island favoured birching and that this constituted a case of \u201clocal requirements\u201d in the sense of the colonial clause. The ECtHR responded with an argument based on what is now known as European consensus<\/a>: it noted that \u201cin the great majority of the member States of the Council of Europe, judicial corporal punishment is not, it appears, used\u201d and held that its use was therefore not required \u201cin a European country\u201d. And while a dependency of the United Kingdom, the Isle of Man was clearly seen as such. According to the ECtHR, it \u201cnot only enjoys long-established and highly-developed political, social and cultural traditions but is an up-to-date society\u201d and \u201chas always been included in the European family of nations\u201d \u2013 in explicit contrast to \u201ccertain colonial territories\u201d for whom the colonial clause was designed.<\/p>\n

This juxtaposition of the Isle of Man and of \u201ccertain colonial territories\u201d provides a textbook example of what Stuart Hall has described<\/a> as the discourse of the West and the Rest: it \u201crepresents things which are in fact very differentiated (the different European cultures) as homogeneous (the West)\u201d, with the point of unity being \u201cthe fact that they are all different from the Rest\u201d. Within this dichotomy, the ECtHR conceives of the \u201cEuropean family of nations\u201d as progressive, associating it with development and being \u201cup-to-date\u201d. Even as the ECtHR challenged the Isle of Man\u2019s practice of birching by finding a human rights violation, then, it relied on and further reinforced the idea of a progressive European space with higher human rights standards. In fact, the very idea of European consensus \u2013 interpreting rights based on the positions of the states parties to the ECHR \u2013 chimes with the notion of human rights as \u201cat home\u201d in Europe: as Claerwen O\u2019Hara has argued<\/a>, it can generate a \u201csense of ownership\u201d over human rights that segues into Europe\u2019s \u201cmoral and cultural superiority vis-\u00e0-vis the rest of the world\u201d.<\/p>\n

At the same time, European consensus constitutes an avenue through which progress is located in differential ways within Europe itself. As Stuart Hall\u2019s account highlights, the discourse of the West and the Rest is reductive: the homogeneity of the West is not pre-given, but discursively produced. In a similar manner, debates on European consensus often invoke the supposed homogeneity of European states as a justification for its use (see critically here<\/a>). But the ECtHR\u2019s use of European consensus doesn\u2019t primarily build on existing homogeneity: rather, it produces homogeneity by imposing dominant values within Europe on those states which do not ascribe to them. Again, it associates this move with progress and modernity<\/a>: European consensus is said to be an expression of \u201cmodern societies<\/a>\u201d or \u201cmodern European society<\/a>\u201d. The localisation of progress thus serves as a tool for the regulation of sameness and difference both within Europe and in relation to the Rest of the world.<\/p>\n

Outlook<\/strong><\/p>\n

The location of progress in Europe through and within human rights seems at times to be so self-evident that it barely needs any elaboration. A particularly common expression of this dynamic is the description of the ECtHR as the most \u201csuccessful\u201d or \u201cadvanced\u201d human rights body. The ECtHR itself, in a memorandum submitted before the 2023 Reykjav\u00edk Summit, stated<\/a> that \u201cthe Convention represents the most advanced supranational system for the protection of human rights worldwide\u201d. The editorial of the inaugural 2020 issue of the ECHR Law Review opens<\/a> by introducing the ECtHR as \u201cthe oldest and most successful regional human rights tribunal\u201d. The measure of its supposed success is usually not explicated in statements like these, much less questioned with a view to different approaches in other regions which may well be more apt for advancing human rights. Rather, as James Gathii has argued<\/a>, non-European courts are expected to adapt to European standards or be declared failures.<\/p>\n

It is by now a trite point that progress involves a sense of normativity<\/a>, as in the insistence on the ECtHR\u2019s \u201csuccess\u201d. We need to acknowledge, however, that this normativity is unevenly distributed and notably, against the backdrop of colonial forms of knowledge production and the civilizational hierarchies that come with it, located in Europe. Discussions of progress and international law will be incomplete so long as they do not account for the spatialisation of time<\/a> and the way that human rights and other markers of progress are conceived of as \u201cat home\u201d in Europe.<\/p>\n","protected":false},"excerpt":{"rendered":"

Progress may seem to be a temporal concept. That is certainly how it is usually understood in the literature on progress and international law. Statements of progress are said, for example, to entail \u201creflections on the past\u201d and to \u201clink our view of the past with our view of the present and the future\u201d. Work […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[3995,3748,3581],"authors":[7206],"article-categories":[3572],"doi":[],"class_list":["post-20592","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-colonialism","tag-european-convention-on-human-rights","tag-human-rights","authors-jens-t-theilen","article-categories-symposium"],"acf":{"subline":""},"meta_box":{"doi":"10.17176\/20230919-223736-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/20592","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=20592"}],"version-history":[{"count":2,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/20592\/revisions"}],"predecessor-version":[{"id":20646,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/20592\/revisions\/20646"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=20592"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=20592"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=20592"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=20592"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=20592"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=20592"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}