The Times and Temporalities of International Human Rights Law

Kathryn McNeilly, Ben Warwick, Kathryn McNeilly, Ben Warwick

• Publisher: Hart Publishing
• Year: 2022
• Print ISBN: 9781509949991
• eBook ISBN: 9781509949915
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

This collection brings together a range of international contributors to stimulate discussions on time and international human rights law, a topic that has been given little attention to date. The book explores how time and its diverse forms can be understood to operate on, and in, this area of law; how time manifests in the theory and practice of human rights law internationally; and how specific areas of human rights can be understood via temporal analyses.

A range of temporal ideas and their connection to this area of law are investigated. These include collective memory, ideas of past, present and future, emergency time, the times of environmental change, linearity and non-linearity, multiplicitous time, and the connections between time and space or materiality. Rather than a purely abstract or theoretical endeavour, this dedicated attention to the times and temporalities of international human rights law will assist in better understanding this law, its development, and its operation in the present. What emerges from the collection is a future – or, more precisely, futures – for time as a vehicle of analysis for those working within human rights law internationally.

1

The Temporality of Memory and the Authority of the European Court of Human Rights

FREDERICK COWELL

I.INTRODUCTION

During the UK’s 1975 referendum on membership of the European Economic Community, arguments about the role of European unity preserving the peace after World War II were generally well received and had widespread common currency.¹ A generation later in the 2016 referendum on Brexit, David Cameron’s reference to the European Union’s role in preventing the outbreak of conflict was widely ridiculed. But the 1975 referendum was closer in time to the start of World War I than the 2016 referendum was to the end of the World War II. Leaders of both Yes and No campaigns in the 1975 referendum had fought in the Second and First World Wars, whereas in 2016 the youngest veterans were in their late eighties. The passage of time had led to collective memories fragmenting. The sociologist Maurice Halbwachs described collective memory as a social endeavour which reconstructed ‘an image of the past’ which accorded with the ‘“predominant thoughts” of that society’.² Halbwachs did not invent the concept of societal collective memory, but he did explain the temporality of collective memory and how the past could be constructed into a communal identity and shared, so that it became a self-sustaining explanation of how a society functioned.³

Collective memories are an important but sometimes under considered part of international human rights law.⁴ They are often articulated as the source of a human rights instrument’s authority. For example the African Charter of Human and Peoples’ Rights in its preamble refers to ‘the virtues of [African state’s] historical tradition and the values of African civilization’ as well as the ‘the total liberation of Africa’ as the shared values on which the state parties to the Charter agreed upon, forming the basis of its authority.⁵ Positioning human rights as a remedy to colonialism was a major feature in thinking about the African Charter on Human and Peoples’ Rights as a distinct system of human rights.⁶ Decisions of the African Commission on Human and Peoples’ Rights such as SEARC v Nigeria,⁷ specifically referenced colonialism in its interpretation of Article 21 of the Charter (the right to natural resources) when they concluded that the right existed because of ‘colonialism … during which the human and material resources of Africa were largely exploited for the benefit of outside powers’ and because of this the drafters of the Charter ‘wanted to remind African governments of the continent’s painful legacy’. The collective memory of colonialism among African states provided a foundational consensus on what human rights were for, which was important both for the creation of the African Charter and for the ensuing legitimacy of its interpretative and enforcement bodies.

As this chapter argues with reference to the European Convention on Human Rights (ECHR), the collective memory which forms its foundational legitimating consensus was a memory of totalitarianism, situated in the early Cold War, to which human rights was positioned as a remedy. This basic consensus on the role of human rights was the dominant assumption amongst the Convention’s drafters in 1949–50, and as the first part of the chapter sets out this consensus is a necessary feature of the European Court of Human Rights’ (ECtHR) authority in interpreting the ECHR. The focus on the ECtHR in this chapter is in part because it is the world’s oldest and most powerful international human rights body. As a consequence, literature on compliance with human rights law often discusses it in the context of protecting human rights or the judicialisation of human rights protection.⁸ As this chapter demonstrates, one of the reasons for this has been the relatively strong consensus surrounding the ECtHR’s role linked to the political climate of its foundation in the late 1940s and early 1950s, which cemented a strong interstate consensus on the importance of human rights protection as a remedy to the threat of totalitarianism.⁹ Methodologically this is known as historical institutionalism – an analytic lens for examining international institutions which stresses the temporal properties of concepts and emphasises processes and mechanisms that impact the origin, stability and change of institutions over time.¹⁰ But as this chapter argues as time passes – in a linear sense as the present gets further away from the early Cold War context of the ECHR’s origins – challenges are created for the legitimacy of the ECtHR. In part this is because the way in which a foundational consensus based on forms of politically constructed shared memory operates can be temporally contingent, linked to particular places and times, and making a historically intuitionist explanation of organisational authority open to contest by those whom it exercises authority over.

II.CONSENSUS AND AUTHORITY: HOW AN INTERNATIONAL HUMAN RIGHTS REGIME MAINTAINS ITS AUTHORITY

The literature in the area of compliance with human rights law is vast, but for the purposes of this chapter it is important to focus on the role of a collective interstate consensus, within that literature. This form of consensus serves both as a mechanism for the internal and external maintenance of a legal regime’s authority. Authority, as Joseph Raz points out, is different from coercion, in that authority claims that following the commands of another agent is appropriate because that agent has legitimacy.¹¹ International human rights law, and the bodies created to enforce it, for the most part lack direct coercive powers. In so far as there is coercion, or the threat of coercion, on a state in relation to human rights compliance it is in the field of reputation cost.¹² Yet, the specific type of reputation affected by non-compliance with international human rights law is either indirect or existential and the potential impact, and fear on a state’s part, of reputation damage is too unpredictable and uncertain to create a lasting basis for a court’s authority. Therefore in order for a human rights body to function and to issue decisions in relation to the protection of human rights, whether they are judicial decisions (in the form of cases that the country wins or loses) or decisions that are declarative (such as those produced in the concluding observations of treaty bodies) it is necessary for it to develop a form of content independent legitimacy.¹³ This then makes compliance and the reasons to comply with a particular decision of that body the default presumption, or more specifically an expectation arises among state officials in favour of compliance.¹⁴ Shai Dothan in relation to ECtHR compliance has noted that one of things that has encouraged compliance with relatively high cost decisions is that the Court has constructed its legitimacy upon a series of predictable and relatively low-cost decisions.¹⁵

At this point it is important to emphasise the conceptual distinction between normative and sociological legitimacy – the former form of legitimate authority may be signified by the capacity of the body itself, the rights it adjudicates or its procedural legitimacy,¹⁶ whereas the latter describes the socio-political reasons behind a tribunal or review body’s legitimacy.¹⁷ Whilst distinct, the two are often practically interrelated; for example the literature on the spiral model of human rights change sees social pressure within states interacting with external agents, such as human rights bodies, in order to generate human rights reforms within states.¹⁸ This requires an institution to have both normative legitimacy and to have a broader sociological legitimacy. Courtney Hilebrecht’s study of the Inter-American Court of human rights identified how the interaction between regional human rights institutions and political actors in countries, both grassroots activists as well as government officials, was vital for giving an organisation as a whole legitimacy.¹⁹ Liberal explanations of compliance with international human rights law also point towards the existence of an inter-state consensus about the utility of human rights. For instance in in the case of the ECHR the desire among member states of the Council of Europe to lock in democratic forms of government was a key component of the consensus which underpins compliance with the Convention and its organs.²⁰ ‘Consensus’ in these arguments refers to a form of elite level socialisation of the leaders of state governments leading to the political internalisation of human rights norms among political elites which is an essential precursor to the implementation of a human rights body’s decisions becoming the default position.²¹ This is different from, but related to, the use of ‘European consensus’ as a tool by the ECtHR in relation to the interpretation of a particular right, where the Court examines practice from around Europe to identify a trend or common practice across member states in relation to the implementation or restriction of that right.²² In these cases consensus is more commonly used to describe the policy of states in the present rather ‘than the’ foundations of an institution’s authority in the past, but as will be shown below the two can intersect.

To understand the authority of an institution, it is necessary to look beyond Raz’s work on the construction of normative authority, which is premised on distinguishing power and right, and bring in Jacques Derrida’s work on the foundations of law’s authority.²³ In ‘The Mystical Foundat...

Table of contents

• Cover
• Title Page
• Foreword: Thoughts for the Times of Human Rights
• Acknowledgements
• Contents
• Contributors
• Introduction
• 1. The Temporality of Memory and the Authority of the European Court of Human Rights
• 2. The Temporalities of Environmental Human Rights
• 3. The Temporal Trap of Human Rights
• 4. Documents and Time in International Human Rights Law Monitoring: Artefacts, Objects, Things
• 5. Gender, Temporality and International Human Rights Law: From Hidden Histories to Feminist Futures
• 6. International Human Rights Law and Time-Space at Sea: A Rhythmanalysis of Prosecuting Search and Rescue
• 7. Human Rights after Fukuyama
• 8. Queer Temporalities and Human Rights
• 9. Against the Eternal Law(s) of Human Rights: Towards a Becoming-Chaotic of Time
• 10. From Crisis to Quotidian: Countering the Temporal Myopia of Jus Cogens
• 11. Human Rights Futures
• Afterword: Between the Times
• Index
• Copyright Page