Who Believes in Human Rights?: Reflections on the European Convention

by Marie-Bénédicte Dembour

• ISBN13: 9780521683074
• ISBN10: 0521683076
• Edition: 1st
• Format: Paperback
• Copyright: 2006-10-23
• Publisher: Cambridge University Press

Summary

Many people believe passionately in human rights. Others - Bentham, Marx, cultural relativists and some feminists amongst them - dismiss the concept of human rights as practically and conceptually inadequate. This book reviews these classical critiques and shows how their insights are reflected in the case law of the European Court of Human Rights. At one level an original, accessible and insightful legal commentary on the European Convention, this book is also a groundbreaking work of theory which challenges human rights orthodoxy. Its novel identification of four human rights schools proposes that we alternatively conceive of these rights as given (natural school), agreed upon (deliberative school), fought for (protest school) and talked about (discourse school). Which of these concepts we adopt is linked to particular ways in which we believe, or do not believe, in human rights.

Table of Contents

Acknowledgements	xvii
Table of cases	xx
List of tables	xxvii
1 Introduction	1	(18)
Human rights as an article of faith	1	(1)
The short-sightedness of the universal assertion	2	(2)
Practical and conceptual critiques of human rights	4	(2)
Liberal and non-liberal critiques of human rights	6	(2)
Linking the classical critiques to the Strasbourg human rights case law	8	(2)
A kaleidoscopic reading of the Convention	10	(1)
Not one, but several concepts of human rights	10	(1)
The moral stance of human rights nihilism	11	(1)
Neither simply for nor against human rights	12	(7)
2 The Convention in outline	19	(11)
The work of the Council of Europe	19	(1)
The rights guaranteed by the Convention	20	(1)
General principles of interpretation	21	(1)
The original mechanism of enforcement	22	(2)
The current mechanism of enforcement: Protocol 11	24	(1)
The future mechanism of enforcement: Protocol 14	25	(1)
Conclusion	26	(4)
3 The Convention in a realist light	30	(38)
The 'Anarchical Fallacies' denounced by Bentham the 'realist'	30	(5)
'Look to the letter, you find nonsense'	32	(1)
'The order of chaos'	33	(1)
'Look beyond the letter, you find nothing'	34	(1)
The relative protection of the European Convention and the margin of appreciation	35	(2)
Negating the Convention system? Derogations under Article 15	37	(2)
Realism in international relations: Virtuous or vicious raison d'état?	39	(2)
Comparing Bentham and IR realism	41	(1)
The creation of the doctrine of the margin of appreciation in the First Cyprus Case	41	(3)
Underlying political games: The Second Cyprus Case	44	(1)
Realism and the Convention: Forsythe versus Allott and Imbert	45	(2)
The position of the Court in cases involving Article 15	47	(2)
Aksoy: Both a realist and a supranational decision	49	(4)
No realism without idealism, and vice versa	53	(1)
Benhebba: The statism of the French judge versus the idealism of other judges	54	(2)
A Court ready to stand up to the state: The remarkable examples of McCann and Selmouni	56	(2)
Conclusion	58	(10)
4 The Convention in a utilitarian light	68	(46)
To affirm or not to affirm rights: Utilitarianism and its liberal detractors	69	(1)
The balance of interests in the Convention and the proportionality test applied by the Court	70	(1)
The margin of appreciation and the proportionality test: Dudgeon versus James and Others	71	(2)
'Rights as Trumps': The absolutism of Dworkin	73	(1)
Article 3 lays down a negative absolute obligation: Selmouni's reiteration	74	(4)
Relative or absolute protection under Article 8? The Court's majority versus Judge De Meyer in Z v. Finland	d5
Consequentialism versus absolutism, and the law of double effect	78	(1)
The recognition of positive obligations by the Court: Utilitarian logic or application of the law of double effect?	78	(3)
Absolutism: Possibly utilitarian up to the point of transgression	81	(1)
Pretty: A mixture of absolutist and consequentialist logics	81	(4)
Soering: Going beyond the absolute obligation contained in Article 3	85	(2)
From negative to positive obligations: The loss of the human rights core	87	(1)
'It all depends': From Bentham's felicific calculus to the proportionality test of the Court	87	(3)
The here and now of the casuistic approach of the Court: Van Drooghenbroeck's critique	90	(1)
Ever-changing context or permanent rules? The practical resolution of the dilemma	91	(1)
The moral limitation of the absolutist position: The example of torture	92	(1)
A v. United Kingdom: The devastating consequences of an absolute privilege	93	(2)
What the general interest does not require: The erosion of civil liberties during the War on Terror	95	(2)
Chassagnou: Where is the general interest?	97	(2)
Jersild: 'The individual versus the state' as a fallacious dichotomy	99	(3)
Conclusion	102	(12)
5 The Convention in a Marxist light	114	(41)
'On the Jewish Question': The denunciation of bourgeois rights	114	(2)
Does the Convention serve selfish man? Cosado Coca versus Janowski	116	(3)
Balibar and Lefort: The man is the citizen	119	(1)
Sunday Times and Janowski: Which interests are being pursued?	119	(2)
'On the Jewish Question' as a Mandan text	121	(1)
The rich more equal than the poor at Strasbourg? Morvai's account	122	(3)
Gaining procedural efficiency: At the cost of bureaucratic twitching?	125	(2)
Dragoi and the thousands and thousands of forgotten cases: The indecency of the Strasbourg procedures	127	(3)
The legally-legal issues which retain the attention of the Court	130	(3)
The persisting ignorance of racial discrimination by the Court: The false promise of Nachova	133	(5)
The capitalist foundation of the ECHR: Messochoritis and the whole case law	138	(1)
Human emancipation: Found neither in human rights nor, of course, in the Stalinist gulag	138	(2)
Thompson and Lefort: A valuable rule of law even in the face of objectionable legal rules	140	(2)
Ipek: Law is not just a sham	142	(2)
Conclusion	144	(11)
6 The Convention in a particularist light	155	(33)
The AAA Statement of 1947: An outdated view of culture	156	(1)
Cultural relativism: An embarrassing doctrine but also a valuable legacy	157	(2)
Handyside: The margin of appreciation as — seemingly — an expression of cultural relativism	159	(3)
Masquerading as an expression of cultural relativism: The abuse of the cultural argument	162	(1)
The real problem with cultural relativism: The tolerance of the intolerable — T v. United Kingdom	163	(2)
The good side and inescapability of cultural relativism	165	(1)
Delcourt versus Borgers: Inaction versus action, or when is action required?	166	(2)
Johnston: An unfortunate cultural relativist application	168	(2)
The gloss of universalism in the application of Article 3 of the Convention: Tyrer	170	(6)
Rethinking the terms of the opposition: Universalism versus particularism	176	(2)
A brief but crucial point: Universalism is a doctrine too	178	(1)
Oscillating between universalism and particularism	178	(1)
Conclusion	179	(9)
7 The Convention in a feminist light	188	(44)
Feminism and feminisms	189	(1)
The feminist liberal agenda: Working for sex equality	190	(1)
The presence of female judges at Strasbourg	191	(1)
Championing the equality of the sexes since ABC	192	(1)
What's in a name: Burghartz	193	(1)
The shortcomings of the 'Add Women and Stir' liberal approach	194	(1)
The woman's voice feminist agenda: Calling for women to be recognized as different from men	195	(1)
Is a distinctly female voice heard within the Court? An open question	196	(1)
Buckley and Chapman: Applicants who are mothers	197	(4)
The radical feminist agenda: Getting rid of patriarchy	201	(1)
A disappointing record on rape: X and Y, SW, Aydin and Stubbings	202	(4)
The right to have an abortion: Neither in the Convention nor in Open Door, Bowman, Tokarczyk or Odièvre	206	(4)
Women's 'non-feminist' choices: False consciousness or essentialism?	210	(1)
The post-modern feminist critique: Recognizing women as different from one another	211	(1)
When the Other is ignored: Karaduman and Dahlab	212	(1)
What is not in a name: The simply and shockingly inadmissible Halimi	213	(2)
Airey: An amazingly progressive judgment	215	(3)
Conclusion	218	(14)
8 The human rights creed in four schools	232	(40)
Wittgenstein's concept of 'family resemblance'	233	(1)
Human rights approached through a family resemblance matrix	234	(2)
The soothing or unsettling effect of the universality of human rights: Donnelly versus Haarscher	236	(1)
Haarscher's human rights vision: Asceticism or evangelism?	237	(1)
The foundational case law on transsexualism	238	(3)
Van Kück's 'normalization' from the perspective of the natural and the protest schools	241	(2)
Can we have human rights? The responses of the natural and protest scholars	243	(1)
Can human rights law embody human rights? The responses of the natural and protest scholars	244	(2)
Both natural and protest scholars believe in human rights	246	(1)
What is the basis of human rights? The response of the natural scholars	246	(1)
What is the basis of human rights? The response of the protest scholars	247	(2)
Those who do not believe in, but are committed to, human rights: The deliberative scholars
Those who are sceptical of human rights: The discourse scholars	249	(4)
Mapping the schools	253	(1)
Who's who: Naming some representatives of each school	253	(5)
Moving within the liberal and the non-liberal schools	258	(2)
The concept of human rights: Spun by the four schools	260	(12)
9 Conclusion: In praise of human rights nihilism	272	(6)
The appeal of the critique(s) of human rights	272	(1)
Challenging the orthodoxy: In Nietzsche's footsteps	273	(1)
Why be afraid of human rights nihilism?	274	(4)
Appendix 1	278	(5)
Appendix 2	283	(2)
Select bibliography	285	(11)
Index	296