Misc

Are We Losing Our Civil Liberties? New podcast with Prospect Magazine

Is Britain becoming a police state?

This week, Ellen and Imaan are joined by Conor Gearty, a barrister and professor of human rights law at LSE, who explains how his views on the future of protest have changed.  The podcast can be found here.

As hundreds have been arrested for supporting the recently proscribed group Palestine Action, Conor discusses his reaction to the ban. He criticises the Labour government’s stance on protest, which he says panders to a “middle covert authoritarianism”.

Conor also weighs in on what’s at stake if Britain leaves the ECHR, and how to fortify democracy. Are protests from the political left and right treated differently? And how should Labour respond to Reform’s rhetoric on human rights?

https://www.prospectmagazine.co.uk/podcasts/prospect-podcast/70975/are-we-losing-our-civil-liberties

Misc

Postcard from Bayreuth


I was about 400 metres away when it dawned on me, what it reminded me of. I had taken a week by myself to visit the Wagner music festival in the small Bavarian town of Bayreuth. It was this Summer, the weather was glorious and I had tickets to the Ring Cycle, Wagner’s masterpiece of musical theatre, four long operas to be seen over six days, about fifteen hours of music in all. Wagner had built his own theatre on the outskirts of the town in the mid-19th century and it is still there, has been playing his – and only his – music for very nearly 150 years. His Festspiele is on a hill, protected from urban reality by rising lawns; private vehicles are prohibited. As the time for the first of the four operas approached, the ticket-holders with me among them walked up the slope in small groups. We wore our Sunday best, some flamboyantly so, others more modestly, the older assisted by the younger. There was not much talk: all eyes were on the Festspiele rising up ahead, and the looming 6pm start. This was like heading to mass in rural Ireland in the 1960s minus the cars and kids. Wagner is our faith and the Ring his great secular statement.

The idea stayed with me though the most remarkable musical experience of my life that was to follow over the next few days. The operas were presented in the original German with no surtitles; like the old Latin Mass you were expected to know what was going on (and everybody did). There is no air-conditioning and neither water nor snacks are permitted even in the foyer much less the theatre itself. (There are wonderful stalls and restaurants scattered around the hill.) Remarkably, Wagner designed his theatre with the orchestra tucked under the stage, invisible to the audience, like a priest with his back to the congregation. The operas are very long it is true, but then Mass used to be in the old days as well, and like many of Wagner’s characters preachers in the pulpit often engaged in lengthy homilies which (just as with Wagner) flirted with tedium. One difference with Mass lay in the audience engagement. In our religious world the congregation get to participate through the ritual of shared prayer. Not the Wagnerian faithful: the hours and hours of music must be heard in total silence, a mere cough treated like a blasphemous roar. This probably explains the extraordinary scenes that greet the end of each Act but especially when the whole thing is finally over. I had not been prepared for this: feet thumping wildly on Wagner’s old wooden floor, shouts and roars of appreciation, curtain call after curtain call – a chance finally to participate. And celebrate an unforgettable communal experience.

And what is this fabled Ring about, what story does it tell? The rise and fall of the Gods, a war between worlds for control of a devastating power, a ring shaped from the Rhine’s gold. But the Ring I saw had no ring, no Rhine, no gold, no nothing of any supernatural nature – not even (to my slight disappointment I admit) the dragon that Siegfried slays in the third opera. Like the bible, the Ring has depths that defy a single narrative. There was a long literal phase; for fifty years after the composer’s death his grieving widow refused to change a thing. But his son and grandsons eventually got hold of the place and reinterpretation flourished. It still does, under the control now of Wagner’s great Granddaughter Katharina Wagner. My Ring was about power, family and the need to destroy the old order in order to give future generations a chance – the ring was a little kidnapped boy. The crowd loved it perhaps for and at least in spite of this. The grandest of dressers the most formal of attendees, turned out to be the most raucously progressive.

What of the Nazis? Like the Church the Wagnerian story has its shame, the horrible collusion between members of the dynasty (especially Wagner’s daughter-in-law, the English born Winifred) and Hitler himself in the 1920s and 30s, a great fan of the composer for the celebration of German values that he saw in his work. (And no one who has ever seen the non Ring work Meistersingers can disagree.) The Festspiele has thrown up boards explaining in painfully stark terms not just about Winifred but how anti-Semitic Wagner and his wife Cosima were. The memory of great Jewish musicians denied opportunities on account of their faith are scattered around the gardens. This could be something for those who run our own Festspiele St Peter’s to think about, remembering their own historic ugliness.

Towering above the unsavoury past, transcending even the most mediocre of productions, there is the music. There is nothing like it, the grandest most beautiful sound that human kind has ever contrived to make. If the Ring is too much, try Wagner’s great religious last work Parsifal – the funeral of Pope Francis reminded me of some of its extraordinary scenes. Or the most tragic love story of them all, Tristan and Isolde. If you fancy Bayreuth, then next year’s new once-off production of the Ring is a confection of the productions of the last 150 years, in which AI will appear on stage as a ‘generative visual force’.

26 August 2025

Middle East Conflict, Misc, Terrorism

Syria and Terrorism: what’s in a name?

In the dying days of the second Bush administration, officials noted to their embarrassment that, in US eyes, Nelson Mandela was still a ‘terrorist’. His name – and that of other members of South Africa’s governing party the African National Congress – had been placed on a terror watchlist in 1986, at a time when President Reagan was busy currying favour with the staunchly anti-Communist but apartheid regime of P W Botha. This ‘terrorist’ had already enjoyed a state visit and addressed both Houses of Congress in 1994, but it was only in 2008 that US law-makers acted in a bipartisan manner to end this ‘embarrassing impediment to improving U.S.-South Africa relations’ as the sponsors of the change put it.

Will Abu Mohammed al-Jolani have to wait this long? The organisation to which he belongs, Hayat Tahrir al-Sham (HTS), is on most of the contemporary equivalents of the terror watchlists of the 1980s, required to be hunted down by the ‘global community’ as a bunch of rabid Islamists, intent upon wreaking civilisational havoc. But we are already been prepared for change: his real name is Ahmed al-Sharaa; his dress is less Jihadist than Goldman Sachs; he was never really keen on Al-Qaeda and Islamic State after all though both gave him his start in militant life. Indeed it may not be long before we discover that he enjoys Dickens, or perhaps even Henry James.

Of course al-Sharaa is a clever player in this rebranding, but it would have no traction without his successful violence in Syria. There was an easy $10million waiting for anyone who informs the US as to his whereabouts – but it is unlikely that the authorities will pay up, unless of course that he is reevaluated as dangerous by western power, in which case the terrorist label will be quickly reattached. No end of rebranding will save him then.

Syria’s ousted leaders could tell him a thing or two about terrorist labelling. Syria has been on the US list of terrorist states since 1979 when Assad’s father Hafez al-Assad was its leader. Before then Hafez was less of a pariah, meeting with Henry Kissinger in 1973 (one of Kissinger’s 28 visits to the country) and even hosting US president Richard Nixon in 1974. Jimmy Carter invited Assad senior to the White House when they met in Geneva in 1977, an offer that Assad declined. His designation as a terrorist mastermind did not greatly affect America’s desire to meet with him as even after 1979 successive administrations deemed him vital to the securing of a deal in the Middle-East that would promote US interests. The brutality of Syria’s regime, its attacks on its own people, its authoritarian viciousness, mattered little until eventually after the Arab Spring provoked even more repression in Syria it suddenly did.

The nonsense of describing states and organisations opposed to western interests as terrorist while ignoring the moral obloquy of those opposing them (the good old ‘counter-terrorists’) has been an ever-present in international diplomacy since the 1970s. As so often in the region, it has been Israel that has led the way, successfully characterising its various Palestinian opponents as terrorist and then using this condemnatory label as cover for a series of vicious, expansionist wars, entailing the commission of multiple war crimes across Palestine and Lebanon and now even likely genocide in Gaza. Israel will never allow any of its Palestinian opponents a chance to escape the ‘terrorist’ imprimatur: the last leader to try, Yitzhak Rabin was dispatched by a Zionist fanatic whose subsequent life sentence has been punctuated by frequent campaigns for his release.

In 1994, Stella Rimington, the then head of Britain’s internal security service MI5, gave the annual Dimbleby lecture on BBC 1, choosing the topic of security and democracy. In the course of this lecture, she noted proudly that ‘Over the past eighteen months or so, more than twenty Irish Republican terrorists have been arrested in Great Britain and charged. … All told, some 700 terrorists, both Republican and Loyalist, have been convicted and are currently serving prison sentences; many others are awaiting trial.’ For Rimington a suspected terrorist is a terrorist, their trial an irritant rather than a key safeguard against the miscarriage of justice. It is not so long a step from there to, first, the assassination of alleged terrorists, and then, second, to the assassination of members of a group you have decided is ‘terrorist’, and from there to blowing up the pagers of members of such a group without caring who gets caught up in the violence. Israel has long ago reached that point, and the US is not far behind. HTS wisely want to escape the label, but whether they do depends more on the geopolitical decisions of the US/Israel than it does on their own conduct.

Misc

Homeland Insecurity. Launch LSE 24 October 2024

My speech on the occasion of the launch of my book Homeland Insecurity. The Rise and Rise of Global Anti-terrorism Law at LSE 

This book, largely completed before the events of 7 October 2023 and all that has followed, strikes me now as a prequel to another volume, one with the title Anti-terrorism and Genocide. That would not be a law book, or only barely a law book, but then the story that I tell here did not start as a legal one, being mainly at the start about ‘might’ not ‘right’.


The first substantive chapter in the book we are launching this evening is called ‘IMPERIUM’ and an early subheading in that chapter is entitled ‘PLUNDER’. The pre-history of anti-terrorism law as I tell it is one of naked seizure, seizure, that is, of land and of wealth, and widespread slaughter too, conducted by sophisticated colonial forces whose military capacity (a quirk of the European industrial revolution) made such voracious empire-building realisable. In vain did local peoples around the world seek to resist this wave of terror, their traditional means of defence futile in the face of an unheard-of capacity to kill and destroy. Whole peoples and cultures disappeared or at best were emasculated under the yoke of these fast-growing European empires. (And if genocide was not the point of Empire then it – or something like it – was a necessary part of its success.) None of this appears by the way in the standard works on terrorism which are preoccupied to the exclusion of all else on sub-state rather than state violence.


Over time two things happened among colonised peoples and my subject was born.


First, elements within the indigenous communities among the victims of colonialism learnt to fight back in survivable ways, an explosion here, an assassination there, a sudden assault followed by fast retreat, efforts aimed at mild destabilisation but mainly communication (‘get out of our country’) rather than the unequivocal success on the field of battle that they could see could now no longer be achieved. Pin-pricks for sure but irritating to power, and a bit scary, and potential focal points as well (or so these actors hoped) for the expression of wider popular discontent. Such discontent was more likely if the colonial power could be lured into Amritsar-style excess, as they often were. Indeed the same year as that infamous massacre by Colonel Dyer and his forces in India, 1919, the colonial authorities had already enacted there the Anarchical and Revolutionary Crimes Act.


Here was the second big change – as we entered the 20th century no longer would crude military necessity govern, rather it would be the law, equipped of course with emergency powers to do what was required but now laid out carefully for all to see. (I think it was the legalisation of state coercion that was developed during the First World War that paved the way.) The Rowlatt committee which gave rise to the Indian Act in 1919 found itself pointing to the threat of what it explicitly called terrorism as a key reason for its necessity, and from then on – first in the British Empire and then further afield – ‘terrorism’ and ‘terrorists’ became a main reason for colonial coercion, an alibi for the promulgation and then exercise of swingeing anti-terrorism laws. The attraction of this language to power lay in its implicit moral evaluation – terrorists were bad so counter-terrorism must be good. There were these wild, barbaric killers in Ireland, Palestine, India, Malaya, Kenya, Cyprus – the list is long – standing between Empire and its grateful subjects. Colonial powers have ever since these early 20th century days had what they have called a ‘terrorist’ problem. They have needed it to explain to themselves and their citizens how they could square their avaricious brutality abroad with their supposed commitment to the rule of law and (increasingly as the 20th century progressed) democracy at home. Home was for the decent; home-away (the colonies) was beset by savages.


Of course as we all know Empire lost eventually. How did the language of terrorism, and of anti-terrorism law specifically, survive?

This is the subject of my second main chapter. The Cold War played a part with newly liberated states needing tools with which to control the radical ambitions of some of their comrades, especially if these were Communist and the strategic choice of the new nation was pro-American. Anti-terrorism laws also remained in place to control local populations especially if there was division over the new countries direction – post 1922 Ireland was a case in point here.
And above all settlor colonialist communities needed these laws to police a local population whose land they had seized and many of whose communities they had destroyed in the immediate aftermath of independence. The Protestant settlors of Northern Ireland fit this bill apart from the quirk of their never having left their homeland, which came with them to Ireland as a new United Kingdom and (as we all know) never fully left. The Boers of South Africa were early in this game and more unequivocally independent from the start, the white supremacists of Ian Smith’s Rhodesia (now Zimbabwe) relatively late to it – settlors both with nowhere to return to in the event of defeat.


Israel was clearly one of these, awarded a state by the UN after the Second World War but aggressively growing its control over the territories around it until by the end of the 20th century a strong police and military presence both in and outside its original territory was necessary to preserve its ascendancy in the region. Uniquely, the Jewish inhabitants of Israel did not have even a notional colonial home to return to, except 1948 Israel of course, itself the result of a colonisation (by Zionists) within a colony (or British protectorate as it was then called). After the attacks of 11 September 2001, Israel was early in pointing anxious UN authorities to the bevy of anti-terrorism laws it already had on the books, many dating back to the Mandate period and just after. (Thus began a brief period when Israel enjoyed non-pariah status in an organisation briefly more consumed by the problem of ‘terrorism’ than it was with compliance with human rights standards.)


Palestine is at the core of my book, occupying its central chapters. In the late 1960s, post the 1967 Arab-Israeli war, it seemed obvious that Palestine would take its place as one of the many residual battles being fought by colonised peoples for independence. True many colonial powers had already given up, but a few remained, Portugal for example and (as settlor colonialists) both South Africa and Rhodesia. How were the Palestinian people different from the many liberation struggles that were either current or more likely just recently successfully completed? International law unequivocally backed the right of a people to self-determination and words like ‘guerrillas’ and (even) ‘freedom fighters’ captured the acceptance of the violence this right necessitated, the esteem even in which at this time its subaltern battalions were held.


This did not happen. Instead the old colonial descriptions came back into play. The Palestinian Liberation Organisation and its satellite fighters were neither guerrillas nor freedom fighters, they were ‘terrorists’, indeed – more damningly – ‘international terrorists’. How did this come about? The movement of people was much easier in the late 1960s and early 1970s than it had previously been, and television was emerging as a compelling new way in which to reach the world’s audiences. Frustrated at the failure of both conventional war (1967) and guerrilla war (directly after that), Palestinian fighters took to the international stage. Violence-as-communication wreaked havoc across the airports and major cities of Europe in a way that could not have been possible in the colonial era. No heed was paid to the culpability of those caught up in these random atrocities. The violence was shocking. At the same time, there was similar violence being perpetrated by Europe-based subversive groups, also engaged in unpopular and frightening acts of violence in pursuit of their local agendas: the IRA, ETA, the Red Army Faction and so on.


Handed this open goal, Israel scored, creating in the 1970s in multiple ways I trace in the book (building on the work of Lisa Stampnitzky but more forthright in my conclusions I think than she is) a panic about a global war being waged by multiple terrorist groups (the Palestinians among them) against ‘civilisation’ or ‘the West’ – us, in other words, against them. This gathered pace after the Iranian revolution of 1979 when Hezbollah’s success against US/Israeli power in Lebanon a few years after that revolution led to a new concern, about ‘Islamist’ terrorism. A leading apologist for this new terrorist discourse was Israeli representative at the UN at the time, Benjamin Netanyahu. It follows that when the attacks of 11 September 2001 came, the world was primed for the ‘war on terror’ that was quickly to follow. The second half of my book is all about that period.


Where does the law fit in all of this? Clearly after 11 September there has been a cascade of anti-terrorism law, both driven by the UN and separate from that body. But what of before? What of Israel? That state has long thrived on simple images, of a nation created out of an abandoned desert, of a plucky band of socialists creating Nirvana on the Kibbutz, and of a country committed (unlike all its neighbours) to democracy and the rule of law, part of ‘us’ rather than the surrounding hostile ‘them’. It has been vital to Israeli’s international reputation (and so to its stability) to keep all three in play, at least at some level of plausibility. Israel has long been persuasive as to the independence of its legal system, its judiciary and so on, persuasive at least to those prepared to overlook the law’s engagement with non-Jewish residents and the people in the land it occupies. The place has seemed to its supporters in the Global North and beyond to be subject to law – and that has been enough for those of its many passive supporters who don’t want to look too closely.


This same pattern was followed with its responses to terrorism. Quite early on, Israel framed its counter-terrorism as legitimate self-defence under Article 51 of the UN Charter. Such defence could, Israel asserted, be against non-governmental entities within states (the PLO; Hezbollah) as well as states who harboured them (Lebanon; in the early days Jordan) and it could also be pre-emptive rather than reactive, even if what it was said to be pre-empting was far distant in the future. Conveniently, neither the validity of this reliance on Article 51, nor the legality of the force used under its cover could be the subject of scrutiny in any judicial fora. Freed from scrutiny, Israel could kill thousands in Lebanon (supposedly under the protection of Article 51) because an attempt had been made on the life of their ambassador in London. This is not an ‘eye for an eye’, it is tens of thousands of eyes for one partial blinding, massacres disguised as counter-terrorism.


And so to today, when literally a people is being wiped out in front of us and with our practical support, all in the name of counter-terrorism. One chapter of Homeland Insecurity is devoted to ‘liberal pushback’, ways in which the traditional concerns of liberalism (for human rights and the rule of law) have pushed back against counter-terrorist excess. At the time I wrote the book I was largely optimistic about this development. In particular and like many others I have viewed the International Criminal Court (ICC) as a good thing, as a way of challenging the viciousness of state responses to terrorism where it can be seen to involve ‘war crimes’ or ‘crimes against humanity’. Of course Israel did not subscribe to this framework of accountability but then a jurisdictional ruling of the ICC – pre 7 October – found that their conduct in Palestine could be caught by it. There followed the decision of the ICC’s chief prosecutor Karim Khan to seek arrest warrants against Benjamin Netanyahu and Defence Minister Yoav Gallant, and then – most dramatically of all – the stark rulings about genocide issued by the International Court of Justice.


I am less optimistic now. What has been the effect on Israel, and its primary backers the US, of these rulings? How have Israel’s secondary supporters among the former colonial powers in Europe reacted? For someone who wants to believe in law, the answer is depressingly clear: the effect has been zero, the platitudes about peace are as empty as ever, while the delivery of weaponry, material and logistical support remain as real as they always been, with tens of thousands dead, maimed, orphaned as a result. No one is safe, not the UN, not the Lebanese, not journalists, not university professors, not aid or health workers. The monster that is Israeli-terror destroys them all.


As for Israel, it no longer even bothers seriously to defend its mass killing along even spuriously lawful lines. The days are largely gone when Israel pretended to be investigating its own atrocities or claimed its latest attack on a school or a hospital or the UN was really the work of Hamas. It just kills away. Meanwhile its supporters in the US and Europe mobilise the law against those determined to oppose the realisation in real time of the genocidal plan against which the ICJ has warned. University departments are coerced or naively fooled into debating the evils of anti-Semitism, a term that the supporters of Zionism have successfully distorted to embrace any criticism of Israel, even it would seem a genocidal Israel.

I don’t remember any concern for the sensibilities of the expatriate Hutu communities during the genocide of the Tutsis in Rwanda in 1994. Their saviour then was not the UN or the Western powers both of which sat back and did nothing. Rather it was an invading military force led by the Rwandan Paul Kagame that brought peace and stability to the country. Nowadays of course the West are critical of Kagame’s grip on power and of his abuse of ‘human rights’. I feel like saying ‘How dare they!’ The days of US/European judgment of post colonial states for their human rights compliance are well and truly over. One of the tragedies of the Palestinian people is that they have no Kagame, only endless dead and a handful of old men and autocrats in the pockets of the Americans and the Israelis. For all its good intentions the ICJ are just men and women in robes not an enforcing body. And what good could such a body do, at a time when the Security Council’s very own force in Lebanon, UNIFIL, is being threatened and openly attacked by Israel.


If someone were to write it, any new volume on Anti-Terrorism and Genocide would no doubt have chapters on anti anti-terrorism laws, anti-genocide laws for sure: new trade sanctions, new controls on investment, the further realisation in law of boycott strategies and the like. This is all to be applauded, my home country Ireland pre-eminent among the drivers for this kind of accountability: Ireland is that rarity a global North country that having been colonised knows what its effects are. But where will the Palestinian people be by the time such a book gets written? Where will liberalism be? Where will international law be?


Conor Gearty
LSE
24 October 2024

Academia, Civil Liberties, Economics, Human Rights, Talks

Social Rights and Political Rights: The False Divide?

My lecture at Goldsmiths College’s Annual Human Rights Law Symposium, held on 17 May 2024.

Social Rights and Political Rights: The False Divide?

Conor Gearty[*]

The division between civil and political rights on the one hand and social and economic rights on the other is an historical anachronism.  The primacy long accorded political rights has been built upon an assumption that no longer applies. By exposing this, the necessary groundwork can be laid to reorient the field along different, more productive lines.

What is the assumption that is questioned here, and from which all else set out follows?  Crudely put, it is this, divided for the sake of simplicity into two propositions: (i) that in the past political rights were assumed to lead to social and economic well-being when in fact as we now know they do not, or at least not necessarily; and (ii) (and here is the cause of (i)) that the democratic cultures into which these rights were inserted after 1945 were nothing like as robust as we came to believe they were during the social democratic era that was both first ushered in – and then protected – by the realpolitik demands of the Cold War, a war that is of course now over for over thirty years.

The focus in what follows will be on the European Court of Human Rights though it may well be thought that the argument extends beyond that judicial body. I explain first how the past landed us with the division of human rights we have today, and why what once made sense of this inheritance no longer governs, leaving us an international (and for present purposes importantly a regional) human rights system) which has no obvious contemporary rationale. I reflect, second, on the difficulties in the human rights paradigm that flow from this untethering from its moorings. This takes me to, thirdly, to what I call the present moment, a short assessment of recent European Court cases, analysed from the perspective of the argument that I will have just developed.  I return in my brief conclusion to the democratic objection to the judicial engagement I have described, and answer it (I am anticipating the argument a little here) by paying close attention to the relationship between the body making decisions of this sort – here the European Court of Human Rights – and the wider polity into which its decisions are inserted.

Let me start therefore with the history. – my first proposition.  I make the following three claims.

First the reception of democracy into pre-democratic systems of government has been necessarily imperfect. I say necessarily because history shows us that total breaches with the past, true revolutionary moments, do not usually end well, even if the rhetoric that accompanies them is at the outset optimistically democratic in nature. The democratic systems that have survived have been achieved by negotiation with the past, not the total defiance of it.  The representative government that results has always been irritatingly imperfect, the will of the majority foiled by the embedding of privilege in institutions that predated democratic reform but linger on nevertheless into the democratic era: absurd hangovers like the House of Lords but also the electoral college that elects the US president and the composition of the Senate in that country. And reactionary courts as well, determined to preserve the truths of past generations into new democratic eras. These have been the prices exacted by power for the surrender of its privilege to the people.

Second claim in these preliminary remarks about history. I say that, historically, the idea of human rights has played an important role in this anti-democratic fortification.  Whatever we call them, human rights, civil rights, common law rights (and they have had different names at different times and in different places) all have had the same effect in the past: to equip the unelected community of experts that we call judges and which non-revolutionary democracy has had to accept as ‘the rule of law’, with the power to hinder the flourishing of the democratic ideal, to hold it back, to defy its implications with a counter-rhetoric of moral absolutism. When we look at old-fashioned democratic socialists – the early Labour party in Britain; the more radical New Deal democrats in 1930s America – we can see that they were right to deplore judicially enforceable rights as obstacles to social justice, as a way of impeding the journey from democracy to socialism that many early democratic idealists thought would be inevitable.

There are countless examples in the past of the rights to liberty, property and freedom of contract trumping the interests of the wider community, particularly where these human rights have been deployed by corporate entities. Where that community has sought nevertheless to make a political mark, we have seen the efforts of its aspiring representatives being routinely impeded by state coercion, with no respect being shown for their supposed right (or liberty) to protest, and with whole political associations being banned where their objectives are judged too dangerous to permit their leaders a chance to shine, restrictions and prohibitions that are let pass without challenge by the supposed custodians of political rights. The only rights that have often seemed to have mattered in the past were those of the possessive individual, and certainly not those of the public whose interests democracy was intended to promote.

But then thirdly, and my final claim in terms of these preliminary remarks focused on the historical context. This relates to the Cold War, the time when our subject took its modern shape, the American-led West (to give it its old-fashioned descriptor) confidently promoting civil and political rights, the alternative Soviet-inspired world countering with its emphasis on social and economic rights: liberty being challenged by equality, democracy by socialism. This is where the current false divide comes from.  Not apparent in the Universal Declaration of Human Rights in 1948, it is epitomised in the not one but two agreements concluded in 1966 that make up the international bill of rights, one on civil and political, the other on the social and economic (and cultural). It is also evident in the way the Council of Europe created two bodies for the protection of rights, one broadly civil and political (the Court) the other focusing on the social and economic (the Committee on Social Rights). One has been operative since the late 1950s the Court, the other (the Committee) has been hearing cases since the late 1990s.

The West was not, however, the paradigm of the civil and political rights that it put centre-stage, not least for the reasons earlier alluded to.  And of course as we know the limitations of the Soviet approach became painfully clear as the decades rolled by before the entire regime upon which its claims were based collapsed in 1989.  A consequence of that defeat is that the old Soviet model no longer influences the contemporary discourse of human rights: we are all Westerners now.  But the West that emerged victorious from the Cold War was not the same West that had gone into it.  Whether as a protection against Soviet-inspired revolution or for some other set of reasons about which it is not necessary to speculate here, a kind of benign social democracy was permitted to settle over Europe.: trade unions thrived, collective rights flourished, non-revolutionary social democrats rose to and retained power.  By 1989, therefore, it seemed natural to assume that the victory of the West was a victory for democracy, not only in the civil and political sphere but encompassing the social and economic arena as well.  The imperfections of the system which had resulted from the incomplete reception of democracy all those years ago – and to which I alluded at the start of this talk – had been forgotten.  Civil and political rights delivered and guarded a properly functioning democratic polity that could then be relied upon to secure social and economic rights for all, and often in a more tangible form than a vague language aspiring towards such rights could ever achieve – a National Health Service Act not a right to health and so on, in other words. Political rights mattered, with all else flowing from the natural effect of their operation: social democracy, it was assumed, was bound to be the choice of a properly-informed electorate.

Now the second of the three propositions I promised to lay before you, on why the current model does not fit so well with developments after 1989.  I can deal with this pretty shortly. Crudely put the assumption behind it – to repeat: that political rights could be relied upon to deliver social rights – was false. The foundations of our democratic culture were much shakier than anyone remembered, and its enemies (those who had unwillingly surrendered their power in the first place) were emboldened rather than silenced by the success of the West.  Universal suffrage remained safe but all around it grew hedges that restricted its capacity for transformative growth while at the same time past democratic gains were being eroded, slowly at first and then at an ever-faster pace.  The solidarity that grew out of working-class self-consciousness and which had produced political movements designed to deliver equality was undermined by emasculation of the trade unions that were at its very core. Controls on press ownership intended to prevent the concentration of power in single individuals were first ignored and then discarded. Money successfully and eventually very easily skirted around restrictions intended to keep the electoral process fair and so over time it became entirely normal to assume that political parties needed vast sums from the uber-wealthy if they wanted to survive, and even more if their hope was to thrive. Individualism replaced collectivism as the common sense of the age, the former reflecting the autonomous individual that was to underpin neo-liberalism, the second a vaguely socialist reminder of a vanquished enemy. Rights were all about liberty, and a decontextualised individual at that. Freedom was increasingly for the rich, the political was to be manipulated and the social removed altogether or at very least emasculated.

The cumulative effect of these changes in representative government, seen to a greater or lesser extent across all the democracies in the old West, has been very damaging for civil and political liberties but far more so for social and economic rights.  Life chances have diminished for many while the gap between the rich and the poor has grown astronomically, especially in what we used to think of as the Anglo-Saxon political sphere.  Despite the dysfunctionality of the capitalist system becoming increasingly apparent, the affluent have grabbed more and more of a relatively static national pie without any fear of retribution.  The anger of lost generations is directed away from the truly responsible and – in time-honoured fashion – towards those in an even worse position than themselves, the refugees fleeing the turmoil, danger and poverty of many troubled spots in the Global South.   An ersatz ethno-nationalism accompanies this anger, risking the diversity and tolerance upon which civilised democratic living depends. Police coercion increasingly prevents protest that seeks a refocus on the inequality that lies at the core of our societal malaise – that effort at truth-telling is redescribed as ‘extremism’ and closed down.

This second of my three propositions can therefore be summed up as follows: so far as the European system was concerned, the difficulties it has encountered are not the result of errors of design that could have been avoided by better construction at the moment of their conception. The failure if there is one – and it is perhaps unreasonable even to call this a failure – is in their inability to keep up with the brutal times that have followed the liberal victory in 1989.  Representative government has been reduced to a kind of shell of itself, and the political rights that were supposed to protect it likewise grossly weakened. Social rights have been among the resultant casualties.  But what could human rights bodies – international, regional, national – have done, injuncted neo-liberalism, ordered the retention of social democracy by court order?

And so to my third of my four propositions, related to the present moment.  Where do we stand today? Some extreme ideologues of the right call for the formal dismantling of our system of European human rights protection, describing it in scathing terms as a relic of a past age, as (to use a cruel cliché) ‘past its sell-by date’.  That is not going to happen anytime soon, I think. Nor is the positive transformation of the human rights framework to make it – to use another cliché – ‘fit for purpose’.  Human rights mandates remain active in the present era, with their courts and committees interpreting their charters and conventions and covenants and so on despite these documents not having been tailored to reflect the more brutal times in which we live.  To put this another way, these human rights bodies have legal mandates, which they are required to follow and which have legal effects (direct and indirect) even in those states hostile to those mandates but without their being so hostile as to dispense with the whole structure altogether.

How has the European Court of Human Rights been operating its mandate in this period of strain? The story is inevitably a mixed one, and there is no space or time to go into detail here, but with precedents to rely upon and the consequentially slow development of case-law, the Court is inevitably not well-equipped to react effectively to the changed democratic circumstances around it. The consensus about equality of esteem, the need for separation of powers and the importance of the rule of law – for years assumed to be so secure as to be beyond argument – is breaking down, at least in some states and perhaps in more than we realise.  Old school rights jurisprudence about this or that abuse of individual freedom by some state authority or other presupposes an underlying support for the ethico-legal framework within which such cases get litigated. What happens when it is the framework itself that is being undermined?

Given it will be neither abolished nor rejuvenated by state support, what is the European Court of Human Rights to do?

First the Court needs to be much clearer about fighting for the civil society space within its member states. It must in particular avoid decisions that eviscerate the capacity of civil society actors to deliver for their members, whether these be trade unions (as arguably has occurred recently, in Humpert v Germany), human rights bodies or religious groups. This is not about this or that political right (though their protection too is very important); it is about the health of the underlying body politic.

Second the Court needs to be imaginative, even creative, in the way it interprets the rights it has available to it to secure a level playing field for all political actors, across the spectrum of the electorally possible. Vehicles like article 3 of the first protocol, article 10 of free speech and article 14 on equality need to be mustered in defence of democracy itself, not subverted from within by destructive individual claims.

Third the Court needs to be alive to the deficiencies in the underlying democratic framework within many of the members states and not unthinkingly hide behind the appearance of rights-respect: subsidiarity quickly becomes surrender if it allows the domestic window-dressing of rights to replace their substantive protection.  Where the matter relates to our very democratic existence, let not the court get carried away by the margin of appreciation or by other false claims of deference.

Fourth, there is the social rights issue.  The divide with the political is already closed to some degree in the Convention itself– the right to marry; the right to education for examples. Procedural rights too have been deployed to give the recipients of state benefits and/or those disadvantaged by state action a chance to put their side of a story to decisionmakers.  Positive obligations can have the same effect. People should not have to suffer a poverty so extreme that it can be classed as inhuman and degrading treatment; abject failure to deliver promises of environmental health produce breaches of the Convention guarantee of respect for privacy; decayed health systems endanger the right to life; and so on. In developing this side to their jurisprudence the court should play its part in pushing towards an holistic human rights perspective by engaging with the complaints and conclusions issued by its specialist sister-body the European Social Rights Committee more frequently and effectively than it does at present.  The Court recently proved itself able to deal with a wide range of issues related to health and living conditions in Klimasenniorinen – why not do the same beyond the climate context?

There is an agenda for powerful action here, for ‘activism’ its critics might call it.  Those who would disown the entire human rights system have a secondary position as deep critics of any ‘mission creep’ on the part of the Court.  But what I have described above is not ‘mission creep’; it is a humane response (controlled by its own foundational charter) to the mismatch between what a state says it guarantees and what it truly delivers. That gap is the result of the deficiencies in our democratic framework which I earlier discussed. But these critics of the Court need to ignore all this, assuming as they invariably do that the alternative decision-making point in the system (the one that the court has ‘usurped’) is a model of democratic integrity.

The much maligned (by these anti-rights ideologues) ‘living instrument’ is simply the rhetorical flourish that underpins acknowledgement by the Court of the world it is in, one where the gap between a human rights vision of equality and the reality of the lived experiences of so many people is so stark. This takes me finally and by way of my conclusion to the recent climate litigation Klimaseniorinnen and the democratic critique. What happens if there is no ‘effective political democracy’ or even if there is that the threat is so grave that it would have difficulty generating right action, much less one that is already pockmarked by money and the abuse of power? This is not quite the same as what I have been discussing where the court forces states to take seriously their assumed obligations to the vulnerable living. What about the vulnerable young or the yet-to-be-born whose life chances are being catastrophically eroded by the failure to tackle climate change today?  To Judge Eike, the matter is one for democratic discussion; his dissent in the case is rooted in a confidence in democratic processes that much of this paper has suggested is idealistic but (increasingly) inaccurate.

If all of this involves the emergence of an actio popularis which some have argued has emerged from the Klimaseniorinnen case, then well and good.

Many of the criticisms of the climate decision assume an authority for it analogous to that of a domestic court with the power to order an immediate outcome and then demand its realisation on pain of penalty.  Like most international human rights agreements, however, the court’s power of enforcement is so qualified as to be barely present.  The judgment is legally binding for sure and carries with it an international law obligation that it be enforced, but the power of oversight and enforcement is left to others, in this case the Council of Europe’s political arm, the Committee of Ministers. But like all of this Court’s interventions, it is a stimulus to further discussion, not a declaration Deus ex Machina.

Given the democratic defects I have mentioned earlier though, would not a stronger judicial presence, a notional European Supreme Court be better, on an American model, with the Parliamentary Assembly of the Council agreeing appointments in the way that the Senate does in that jurisdiction (and with the nominations emanating as now from the states not the Council’s Secretary General acting as a presidential chief executive)? I think not.  The answer to a democratic deficit is not to double it.  The court’s relative weakness is in fact its greatest strength: and if it is to be an ethical bully pulpit then it is important to keep its sermons up-to-date. And at least the majority judges in the case can say while the waves inundate us, the storms shake us and the millions displaced by the disastrous misjudgements of the present and past generations beg desperately for us to open our doors, they can say ‘we did our best’. Bravo.

 

[*] Professor of Human Rights Law LSE; Member of Matrix Chambers.

My thoughts on Human Rights, Civil Liberties and Terrorism.