Human Rights and the Rule of Law often reveal a stark contrast between theory and reality. The European Court of Human Rights (ECHR) emphasizes that rights existing on paper must be not only theoretical but also ‘practical and effective.’
In this article, I, Radiya M Khan, will delve into the pivotal role of courts in ensuring the rule of law and explore the intricate relationship between the rule of law and human rights.
The rule of law serves as a strong pillar in democratic societies, encompassing principles of legal certainty, access to justice, and respect for human rights. The World Justice Project defines it as a system where no entity, including the government, is above the law, and justice is accessible to all. In a democracy governed by the rule of law, the government is bound by laws that safeguard individual freedoms, fostering respect for the law among citizens.
Crucial to upholding the rule of law is a robust government structure, particularly an independent judiciary. The separation of powers ensures that no branch, including the judiciary, can act beyond its prescribed limits. Citizens must have access to competent and independent courts to enforce their rights. Dismissing judges based on displeasure with their rulings undermines the rule of law and erodes the foundation of a just society.
Creating a democratic state governed by the rule of law is a complex process that takes time, integrity, and a continuous commitment from all sectors of society. The acceptance of court rulings is paramount for the rule of law to flourish, preventing the descent into chaos. An exemplary instance is the Dutch Supreme Court’s recent ruling on the Srebrenica cases, where the government’s adherence to the court’s judgment underscores the importance of respecting judicial decisions in a state governed by the rule of law.
Judges play a pivotal role in interpreting laws, acting as craftsmen without political agendas. Their duty is to provide unbiased and independent judgments based on a thorough understanding of presented arguments. Their commitment to unbiased decision-making is paramount to maintaining public trust in the judiciary.
Turning to Human Rights in practice, the European Convention on Human Rights (ECHR) stands as a vital tool. Over the years, the Convention’s application, guided by the European Court of Human Rights, has significantly influenced various legal domains. Several key developments shape the contemporary landscape of human rights law.
- Proliferation of fundamental rights.
This trend involves incorporating more elements of the law into the category of fundamental rights. Critics argue that the European Court of Human Rights’ interpretation of the Convention stretches its provisions too far, potentially forcing states parties in an inappropriate direction. This debate touches on significant themes, areas of tension, and interesting questions such as the balance between imposing uniformity in the administration of justice and allowing room for a national approach, evident in the Court of Human Rights’ case law through the doctrine of the margin of appreciation. - Socialisation.
This refers to the blurring of the distinction between fundamental social rights and ‘classic’ fundamental rights. For instance, the European Court of Human Rights has held that states are under a positive obligation to guarantee a minimum standard of living, preventing breaches of the ban on inhuman or degrading treatment. Furthermore, protection against serious environmental harm has been described as falling under the human right to respect for private life. This development could be seen as a form of proliferation of fundamental rights but limited to a specific area. - Horizontal Effect.
Fundamental rights are no longer solely protective against the state but are also invoked in relationships between individuals and enterprises. The notion that enterprises too have an obligation to respect fundamental rights has emerged in this context. - Internationalisation.
In addition to the fundamental rights enshrined in national constitutions, many international sources of rights have emerged. In the coming years, attention will be focused on the Charter of Fundamental Rights of the European Union and the EU’s accession to the treaty mechanism of the ECHR.
The ECHR, with its right of individual petition, stands as a bulwark for human rights in Europe. While challenges exist, the Convention and its enforcement mechanisms are invaluable. Governments within the Council of Europe must be held accountable for human rights considerations. The ongoing struggle for rights, particularly by minorities, underscores the significance of the rule of law as a necessity, requiring collective efforts from politicians, the executive branch, and the judiciary.
It is not a luxury but a fundamental element of our civilisation.
