The European Court of Human Rights and the European Convention on Human Rights are under attack — again.
In May, nine European Union states, including Poland, Italy and Denmark, suggested that the human rights court was constraining their ability to act for public safety, particularly over immigration, and had strayed beyond its original mandate.
The UK government has since joined the chorus, with the then-lord chancellor saying in June that the way courts interpret the convention is “out of step with common sense,” against a domestic backdrop of calls for the UK to leave it altogether.
Even the Council of Europe’s secretary general said the convention needed to “adapt” (though confusingly, he also said it did not need reform).
To understand why the court and convention are so important, it’s worth recalling their origins and understanding the potential consequences of these attacks.
With the horrors of World War II fresh in their memory, European leaders, including Winston Churchill, created the European Convention on Human Rights to help guard against future human rights violations.
To uphold its promise, they also founded a regional court to step in when national courts were unable or unwilling to protect people’s rights. (Despite sharing part of their name, they have no connection to the European Union).
For the most part, the court has done its job of protecting convention rights well. Many of the human rights protections we enjoy in Europe today arise from the work of the court — including ending corporal punishment against children in schools, protecting press freedom, and protecting the rights of lesbian, gay, bisexual, and transgender (LGBT) people.
The court will only take a case if a person has already sought and been unable to find justice in national courts.
It rejects most applications that are brought to it.
And historically its judges have deferred significantly to governments on questions of how rights should be interpreted in national law and policy.
So why is it that the court faces such opprobrium from democratic governments? The first answer is obvious — the court holds governments to account for their actions, including with fines and orders to address violations.
And governments don’t like having their power constrained, whether by courts, the media or otherwise.
Beyond that there are two main criticisms: first, that the court’s judges interpret the convention to “find” rights that were never intended by its framers 70 some years ago.
Second, that the court’s interpretation of the right to family life has led to deportations being blocked in immigration cases.
The criticism about judges “finding” rights is misplaced. The court does apply the convention as a living instrument to factual situations that were not envisioned when the treaty was drafted. In doing so it applies the rights in the treaty rather than creating new ones.
And its actions ensure that the convention continues to protect the rights of people as the framers intended.
On immigration, it is true that national courts apply the convention in ways that sometimes frustrate government efforts to deport foreign nationals. In some cases, those decisions draw on European court rulings.
But the main obstacle to removing migrants is not international human rights law. A key issue is that the states from which the migrants originate frequently decline to accept or cooperate with their return, frustrating deportation efforts.
As governments in Europe blame human rights for tying their hands on migration, so the media has followed, stirring negative public sentiments.
While the right to family life is sometimes cited by domestic courts as a reason why foreign nationals convicted of crimes cannot be deported, there is a fundamental misunderstanding of the basis of those decisions.
It is the impact on the rights of other family members (for example, children) who are lawful residents and often citizens rather than the person facing deportation that are often crucial to the decision.
Their rights are often forgotten in the political debate around the issue.
While the European court undoubtedly constrains state action at times, that is what it was designed to do: to protect people from overreach by the state, and ultimately to serve as a bulwark against tyranny and war. It protects 700 million people across the Council of Europe region.
While the court is not without problems — a long backlog of cases means decisions can take years — genuine reform efforts have helped streamline its decision making. The main obstacle to its effective functioning remains the reluctance of some governments to fully implement its rulings and tackle the persistent abuses that lead to them.
At a time when Europe faces some of the gravest threats since the end of World War Two, European governments should be commending and strengthening its regional institutions, not undermining them.
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Benjamin Ward is deputy Europe and Central Asia director at Human Rights Watch.
Benjamin Ward is deputy Europe and Central Asia director at Human Rights Watch.