ECHR: the resurgence of natural rights, between ideology and legitimacy

READERS' EMAIL, V. Conrad

In today's legal landscape, the notion of fundamental rights is the subject of lively debate, fuelled by questions about their origin, scope and legitimacy. At the heart of this discussion is, in my view, the notion of natural rights. This age-old idea, which is particularly opposed to legal positivism, is resurfacing with renewed relevance in modern legal debates.

Professor Frédéric Sudre aptly describes these fundamental rights as «ideological rights» (Frédéric Sudre, European and international human rights law), underlining their intrinsically philosophical and moral dimension. Indeed, these rights express a set of fundamental values that are inalienable and inherent to the human condition. However, the ideological nature of natural rights is not without reaction, particularly as regards their interpretation and application.

This is evidenced by the European Court of Human Rights (ECHR), which seems to arrogate to itself the right to extend its ideology into the domestic law of contracting parties. This trend legitimately raises concerns about the legitimacy and interference of this court, which makes no secret of its ideological ambitions, as evidenced by its statement in a recent judgment condemning Switzerland (ECHR judgment in the Case of Verein Klimaseniorinnen Schweiz and others v. Switzerland April 9, 2024, para. 412) that «democracy cannot be reduced to the majority will of voters and elected representatives». This statement highlights the determination of the Strasbourg judges to defend values considered essential, even to the detriment of national sovereignty.

In this example, there would thus be a superior right for individuals to have the State take additional and urgent measures in the field of its climate policy by virtue of its international commitments, even though the majority of the Swiss people approved the federal climate strategy by voting on the Climate Act on June 18, 2023. The Court establishes a link between the European Convention on Human Rights, signed by Switzerland, and the national obligation to reduce the negative effects of global warming on people, particularly vulnerable people.

Let's be clear: we're not questioning the importance of the subject, or even the existence of the ECHR, but rather the Court's extensive interpretation in this particular case. This propensity to impose a certain legal ideology is reminiscent of Ghislain Benhessa's analyses in his book The totem of the rule of law which highlights the way in which the rule of law can sometimes take precedence over the general interest, shaping an edifice whose contours are defined by changing values, defended by judges to the detriment of democratic legitimacy.

The legitimacy of the ECHR in question

Another major point of criticism concerns the very legitimacy of the ECHR to deliver such rulings. Although its judges are indirectly elected by national parliaments, some question this democratic legitimacy. In their view, the election of judges does not express the representativeness needed to decide on issues as fundamental as human rights. It seems to me that democratic principles would require a more active involvement of citizens in the appointment of these magistrates, especially as they begin to formulate higher law that is binding on national law.

Faced with these questions, I believe it is necessary to strike a balance between the protection of fundamental rights and respect for national democratic processes. While fundamental rights provide an essential basis for the protection of individual freedoms, it is imperative that their application remains anchored in respect for democratic principles and state sovereignty. Forging a disembodied supranational natural law in this way risks further damaging our contemporary democracies.

Read also | Ghislain Benhessa, The totem of the rule of law

Once again, the ECHR had a noble aim, that of preserving certain fundamental values that had been trampled underfoot by the Nazis during the Second World War. It would be going beyond its role if it were to constantly create new rights.

Today, some complain about the rise of populism and their representatives who criticize this ECHR, but these whiners contribute to the polarization of society, and therefore to the rise of populism, by further widening the gap between the elites and the majority of the population. To borrow a phrase from Denis de Rougemont in Thinking with your hands (1936), who spoke of the decadence of our culture in the 1930s, «it is for having refused to stoop to the level of man, to the level of reality, that our culture is coming undone». To be able to act, we need to recreate genuine human communities capable of acting reasonably without external constraint. It's better to convince than to coerce, even when it comes to climate policy.

Our editor-in-chief in an RTS Sunday debate on the subject