Will Human Rights Law actually Protect us from Fascism?
Human rights regimes such as the European Convention on Human Rights are unlikely to shield citizens against the wave of authoritarianism threatening liberal democracies.
Shortly after the election of Donald Trump to the presidency of the USA, multiple authors on openGlobalRights were already debating what role, if any, international human rights could play in the struggle against the spread, normalisation and institutionalisation of the misogyny, racism and latent fascism of the Trump campaign. In the European context, memories of fascism and the Nazi Holocaust were important factors in the adoption of the European Convention on Human Rights (ECHR) in 1950. The drafters may have been driven by a broader agenda to contain democracy and socialist ideas, but the hope that a supra-national legal system of human rights protection would stabilise and safeguard liberal democratic institutions runs quite deep in the foundations of the ECHR.
Now that liberal democracies have delivered far-right regimes in Europe (and beyond) and contributed to the legitimation of xenophobic discourse and practices, there is indeed cause to ask whether international human rights law will actually deliver on its “promise”. The legal perspective from the European regime, however, suggests that human rights law alone is unlikely to protect liberal democratic institutions from a fascist take-over and that we are far from immune from the atrocities of the early twentieth century.
First, there is little in the ECHR that could be used to challenge the election of a party with fascist views through the ordinary democratic process, as opposed to challenging the laws or actions of such a regime. Article 17 of the ECHR states that nothing in the Convention implies that any state, group or person has the right to engage in an activity or act aimed at destructing the rights and freedoms in the Convention. But the focus and effects of this provision are limited. It only refers to actions that annihilate human rights; it does not speak to the ideology or political formation of the state. And it can only be used to exclude reliance on the ECHR (e.g., by individuals seeking to rely on Article 10 on the right to freedom of expression to disseminate racist views); it is not a self-standing provision on the basis of which an action can be brought directly before the European Court of Human Rights (ECtHR). The result is that although fascist ideology goes against any notion of universal human equality, that fundamental incompatibility carries little concrete juridical effects. After all, Golden Dawn, an openly neo-Nazi party, sits with a comfortable 7% in the Greek Parliament.
Second, the ECHR would not necessarily prevent a regime with fascist aspirations from derogating from its human rights obligations. The creation of a supra-national machinery was designed to place human rights beyond the reach of the nation state. In particular, the ECHR purported to avoid a remake of the Weimar Constitution—which was suspended during the Third Reich—by placing limits on the ability of states to derogate from their human rights obligations. Pursuant to Article 15 ECHR, the ECtHR must verify that there is a “war or other public emergency” that justified departure from the ECHR and that the measures taken do not go beyond what is “strictly required by the exigencies of the situation”.
But there are reasons to doubt the resilience of this framework. Although states must notify the Council of Europe of their intention to derogate from the ECHR, the mechanism of Article 15 is largely reactive. This becomes particularly problematic under conditions of internal repression and of pan-European convergence towards the far right, where the prospects of a successful challenge diminish. Judicial control has been weak thus far on the ground that national authorities are best placed to determine the existence of, and the measures required to respond to, an emergency. Moreover, the interpretation of Article 15 ECHR has evolved to reflect the changing political and social conjuncture.
For example, since 9/11, states are no longer required to demonstrate the existence of an imminent and concrete threat—intelligence over a possible terrorist attack on UK soil was sufficient to meet the Article 15 requirements—contributing to the collapse between normalcy and exception that underpins criticisms that the “war or terror” has led to a permanent state of emergency. And emergency measures passed to combat terrorism have often been used for purposes other than the aversion of the “security threat”. Many of the measures introduced in France after the Paris attacks of November 2015 have since been used to suppress political activism, including opposition to the infamous “Loi El-Komhri”, which dismantled many labour law guarantees for workers. The state of emergency also made space for more institutionalised forms of racism and Islamophobia, as the controversial “Burkini Bans” adopted on grounds of “peace and public order” demonstrate (the French Conseil d’Etat set aside some of the bans, but various regional bodies still refuse to comply). Thus, Article 15 ECHR has been no panacea to authoritarianism, even by liberal democratic regimes.
In theory, Article 17 ECHR—prohibiting the destruction of rights and freedoms—could prevent a fascist government from invoking Article 15. But the professed neutrality of the human rights framework raises questions about the willingness of the ECtHR to express a clear judgment on, and openly condemn, the fascist nature of a regime. In the “Greek case”, several states objected to the invocation of Article 15 by the Greek military junta. But the Commission largely avoided the question, ruling that the junta had failed to establish that there was a communist conspiracy threatening the life of the Greek nation without making any mention of the dictatorial nature of the regime. Even if the ECtHR could be expected, in the abstract, to take a more robust position, this underestimates the concrete effects of far-right resurgence and the more covert forms fascism takes in the contemporary moment. It is difficult to imagine the ECtHR would bar Marine Le Pen, were she to be elected, from extending the state of emergency and further consolidating her power, even though the Front National remains rooted in the fascist project.
Legally, the situation is quite different from the 1930s. At the time, there was no international human rights regime in place that could be brought to bear on the internal activities of the state. It would, however, be naïve—and dangerous—to think that the human rights framework will deliver on its promise to curb the impulses of fascism. On Trump’s election, Barack Obama attempted to present a façade of business-as-usual and ensure an orderly transition of power. A week into Trump’s presidency, there were already signs that blind faith in liberal constitutional institutions is fading. Hundreds of thousands took to the streets in protest of the “Muslim Ban” and recent research has already warned that the legal and institutional framework of the US Constitution provides little safeguards against an authoritarian turn. Commentators have asked whether international human rights law will come to the rescue. The European legal framework suggests that attempts to “lock-in” liberal democratic institutions through human rights instruments are unlikely to prevent or survive the rise of fascism. And there is therefore an urgent need to build alternative strategies of resistance, both in Europe and beyond.
Eva Nanopoulos is a Lecturer in Law at Queen Mary, University of London. This post first appeared on OpenDemocracy.