Human Rights at 70: Taking Stock

Roundtable discussion organised by the Embassy of the Kingdom of the Netherlands & the Faculty of Law, University of Ljubljana

Minister, Excellencies, Ladies and gentlemen,

• It is a great honour and a pleasure for me to participate in this event celebrating 70 years of the Universal Declaration of Human Rights.

   

• I should stress that I am speaking in my personal capacity. Coming from the Council of Europe, my focus will be regional rather than global.

   

• Next year our organisation will celebrate 70 years and the European Court of Human Rights (ECHR) 60 years.

   

• The Convention refers in its preamble to the Universal Declaration of Human Rights, underlining that like-minded European governments were “resolved to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration.”

   

• From the outset, our organisation has adopted a distinctively legal approach to human rights. This is indeed a marked difference between Strasbourg and Geneva.

   

• I think we can be proud of our achievements. The ECHR is considered to be the most successful regional human rights instrument. It has inspired developments in many other regions of the world. The ECHR has been complemented by a series of European conventions, the European Social Charter, anti-torture convention, conventions to protect minority rights and combat violence against women to name just a few.

   

• At the same time, there is no reason for complacency. Today nothing can be taken for granted. Would it be possible to adopt the ECHR today? Probably not..

   

• Today’s force of the ECHR lies in the fact that it is well embedded in the legal systems of our member states. It is directly applied by judges and lawyers all over Europe.

   

• The Court’s deadlock has been significantly reduced through effective working methods and use of modern IT.

   

• In 2011 some 160,000 applications were pending before the Court, today only 58,000. The task to entirely eliminate this deadlock remains however a formidable challenge.

   

• We are facing structural deficiencies in some countries. More than two-thirds of the applications before the ECHR originate from only 5 countries: Russia, Romania, Ukraine, Turkey and Italy.

   

• Some 40% of judgments rendered in the last 10 years are not fully executed.

   

• All this does not apply to Slovenia or the Netherlands. In fact both countries have a rather exemplary record. To give just one example, Slovenia fully executed the difficult case of Ališić and Others. Owners of “old” currency-savings deposited in Ljubljanska Banka at the time of the dissolution of the SFRY have received compensation (a total of some 385 million euros).

   

• But it is not only the ECHR, national courts also take up human rights issues, sometimes even of global importance.

   

• On 29 November, a German regional court in Dortmund heard the case regarding the deaths of hundreds of people in a factory fire in Pakistan, due to inadequate fire safety measures.

   

• We are all used to buy cheap textiles, but do we care about the working conditions in the countries of the South?

• The lawsuit sets a precedent for globally relevant questions:

  • Are corporations responsible for the working conditions in their subsidiary or supplier companies abroad?

  • Which due diligence standards should be applied.

     

• The plaintiffs argue that the discount-clothing chain KiK exercised effective control over their supplier in Pakistan by dictating the conditions for production and delivery of textiles.

   

• If the plaintiffs are successful, KiK would be the first German company to be held responsible for a disaster that occurred in the factory of a supplier.

   

• Background is the work of the UN on guiding principles on human rights and business (2005) which gave concrete expression to the idea of corporate social responsibility to protect human rights. By demonstrating that basic human rights are respected, business itself has a lot to gain in terms of reputation and consumer confidence.

   

• This issue is also a good example how the Council of Europe complements the work of the UN. Based on the UN guiding principles we have developed more precise standards for Europe, based also on the ECHR and the ESC: CM Rec(2016)13 on human rights and business puts particular emphasis on access to remedies including civil liability.

   

• The chairperson of the drafting group was René Lefeber, legal adviser in the Dutch Ministry of Foreign Affairs.

• Let me now mention two other challenges: migration and threats to privacy.

   

• We are confronted with the drowning of thousands of people in the Mediterranean every year. A list published in the Guardian on 5 May 2018 speaks of 34,361 documented deaths of refugees and migrants since the early 1990 due to policies of ‘Fortress Europe’.

   

• The case of Nahhas & Hadri v. Belgium (currently pending before the Grand Chamber) illustrates very well the tension between the universality of human rights and the necessarily restricted scope of state obligations.

   

• In August 2016 a Syrian family arrived in the Belgium embassy in Beirut and applied for visas to travel to Belgium and seek asylum.

   

• The family had been living at an uncle’s house in Aleppo after their own home had been destroyed, finding themselves in constant fear for their lives and in dire conditions, without electricity and without access to drinking water.

• The key questions before the Court are: Did Belgium have jurisdiction over Nahhas and Hadri when denying their visa requests? And if so, did the denial violate the prohibition of inhuman and degrading treatment under article 3 of the ECHR?

   

• The case is of great importance for the European asylum system; several governments and NGOs have intervened before the Court.

   

• In a judgment rendered today, the Court already found that failure by border guards to allow Chechen asylum seekers to lodge asylum applications violated article 3 of the ECHR (Case of M.A. & Others v Lithuania).

   

• Another focus of our work is data protection. Through our interconnected way of life, we expose essential aspects of our private life.

   

• Sometimes I hear that if you have nothing to hide, you have nothing to fear. Nothing could be more wrong. If you have nothing to hide, you have no life.

   

• In the past, we debated how much of our collective life should be determined by the state and what should be left to market forces and civil society.

   

• In future, the question will be how much of our collective life should be directed and controlled by powerful digital systems, many of which are privately controlled and on what terms.

   

• In the Council of Europe, we have just successfully modernised Data Protection Convention 108.

   

• Opened for signature in 1981, it is the only international treaty on privacy worldwide. In light of new technological developments, it required a comprehensive revision, which was rendered even more urgent because of the parallel revision of the EU’s data protection regime.

   

• For almost two years negotiations had been blocked mainly due to differences between the EU and Russia.

   

• However, we finally succeeded. I would like to pay tribute to the Slovenian ambassador Eva Tomic who played an outstanding role in the negotiations.

   

• Convention 108 which has already been ratified by all 47 member states rapidly attracts accessions from more and more countries worldwide, in particular from Africa and Latin America. It is currently the most realistic option of a truly international data protection regime that privacy commissioners, NGOs and the business community have called for.

• I would like to conclude by emphasising the role of national authorities and courts. My 25 years’ experience working for a European institution has taught me that too often too high expectations are put on the European level.

   

• Human rights protection starts and ends at home. National courts and tribunals are also Convention courts. Yesterday I met with Damijan Florančič, President of the Supreme Court of Slovenia, who assured me that its Court is fully committed to upholding ECHR standards.

   

• The Convention system is not a straightjacket, nor does it undermine the prerogatives of national parliaments. The intention of ECHR was never to hand over legal sovereignty to the Court in Strasbourg, but to provide citizens of Europe with an additional guarantee for their human rights (President Macron 31 October 2017).

   

• The more the implementation of the Convention is devolved to the national authorities and courts, the better the ECtHR can focus on core business, namely “cases which disclose grave problems of Convention compliance at national level, cases which take forward our understanding of human rights law, cases where the dignity and/or physical integrity of persons is at stake, cases which gauge the health of the rule of law and democracy in our societies” (Sir Nicolas Bratza).

   

• Human rights protection concerns everybody. It must not be left to state authorities alone. To confront populist rhetoric, we need a real human rights culture.

   

• Let us not give up, even if these are hard times for human rights. Hard times always lead to better days or, as one says in Slovenia, za vsakim dežjem posije sonce.