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A People's History of the European Court of Human Rights

A People's History of the European Court of Human Rights

Michael D. Goldhaber
Copyright Date: 2007
Published by: Rutgers University Press
Pages: 232
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  • Book Info
    A People's History of the European Court of Human Rights
    Book Description:

    The exceptionality of America's Supreme Court has long been conventional wisdom. But the United States Supreme Court is no longer the only one changing the landscape of public rights and values. Over the past thirty years, the European Court of Human Rights has developed an ambitious, American-style body of law. Unheralded by the mass press, this obscure tribunal in Strasbourg, France has become, in many ways, the Supreme Court of Europe.

    Michael Goldhaber introduces American audiences to the judicial arm of the Council of Europe-a group distinct from the European Union, and much larger-whose mission is centered on interpreting the European Convention on Human Rights. The Council routinely confronts nations over their most culturally-sensitive, hot-button issues. It has stared down France on the issue of Muslim immigration; Ireland on abortion; Greece on Greek Orthodoxy; Turkey on Kurdish separatism; Austria on Nazism; and Britain on gay rights and corporal punishment. And what is most extraordinary is that nations commonly comply.

    In the battle for the world's conscience, Goldhaber shows how the court in Strasbourg may be pulling ahead.

    eISBN: 978-0-8135-4128-0
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xii)
  4. Introduction: Europe’s Supreme Court
    (pp. 1-12)

    The exceptionality of the United States Supreme Court has long been conventional wisdom. The dean of American Court watchers, Anthony Lewis of theNew York Times, once declared, “The Supreme Court of the United States is different from all other courts, past and present. It decides fundamental social and political questions that would never be put to judges in other countries.” Lewis was self-consciously echoing the French traveler Alexis de Tocqueville, who was amazed by the reach of America’s judges in his own day. The social role of U.S. law was indeed distinctive in the 1830s, when Tocqueville publishedDemocracy...

  5. Part I The Expanding Ambit of Personal Life

    • Chapter 1 Why Bastard?
      (pp. 15-25)

      When Paula Marckx discovered she was pregnant at the age of forty-seven, she blessed her luck. A single journalist in Antwerp, Paula joked that her pregnancy might have something to do with her recent visit to a pagan fertility shrine in Greece, but then again the boyfriend with whom she’d visited Corinth wasn’t the father. The source of her luck didn’t matter to Paula. She knew instantly that she would keep the baby and have nothing to do with the father. She would be a mother.

      Or so she thought.

      Baby Alexandra was born without mishap on October 16, 1973....

    • Chapter 2 When Irish Eyes Are Crying
      (pp. 26-32)

      The American antiabortion movement failed to push through a constitutional amendment in 1982. The next year, it tried the same strategy overseas, and succeeded. In 1983, U.S. and Irish activists collaborated to engineer Ireland’s Eighth Amendment, which “acknowledges the right to life of the unborn.” The early consequences were grimly antilife.

      In 1984, the Irish public was mesmerized by a series of abandoned-baby dramas. In County Longford, fifteen-year-old Ann Lovett was found dead by the body of her infant son in a church grotto beside a statue of the Virgin Mary. In County Kerry, a newborn baby with a battered...

    • Chapter 3 Gay in a Time of Troubles
      (pp. 33-41)

      Apoet in Belfast in 1975 could be excused if he had nothing left to say about violence. John Hewitt would later be honored with that highest of Irish laurels, an eponymous pub. But on Thursday evening, July 3, he was searching for new material. He dropped in at the Belfast Students’ Union on the Queens University campus. It was the first open meeting of the Committee for Homosexual Law Reform in Northern Ireland.

      Ulster was the last place in Britain, and one of the few in Europe, where gay sex remained illegal. Not just illegal, but punishable by life...

    • Chapter 4 Dudgeon’s Children
      (pp. 42-47)

      The breakthrough victory of European gay rights inDudgeon v. United Kingdomleft plenty of unfinished business, starting with the treatment of gays in the military. Indeed, only a few months afterDudgeon, the European Commission on Human Rights, inB. v. United Kingdom(1982), refused to hear the complaint of a British soldier who was terminated because of his sexual identity. The battle for gay rights in the military would need to wait a generation, until the advent of another charismatic activist, Duncan Lustig-Prean.

      I met Duncan aboard a tugboat in Brighton harbor, where he now works, and sometimes...

    • Chapter 5 The Greening of Europe?
      (pp. 48-54)

      In their early years, the Strasbourg institutions were uniformly cautious in their approach to the environment. They voiced no objection to the flooding of the Sami people’s reindeer habitat for a dam project inG. and E. v. Norway(1984). They rejected repeated complaints of noise pollution See, for example,Powell and Rayner v. United Kingdom(1990). And they gave no succor to the nuclear protest movement. See, for example,X. and Y. v. Germany(1976). Then along came a housewife from a small town in Spain, who refused to take no for an answer. Introducing Europe’s answer to Erin...

    • Chapter 6 Dumb Immigrants
      (pp. 55-64)

      If a society is judged by the way it treats its most vulnerable, then the treatment of criminals from a despised group is doubly instructive. What happens when a legal immigrant who is not a citizen commits a crime? In many countries, he or she faces deportation after serving time in prison. The French call this phenomenonla double peine, because foreigners are made to pay a double penalty for their mistakes: first prison, and then exile. Both France and the Council of Europe have vacillated in their handling of criminal aliens. Perhaps that is because Europe feels ambivalent about...

  6. Part II The Rights of Expression

    • Chapter 7 Minos and Jehovah
      (pp. 67-75)

      In 1938 the Greek anti-Communist dictator Ioannis Metaxas passed a strict criminal law against proselytism. Minos Kokkinakis of Crete was the first man arrested under the law and, a half century later, he would be the last. In the intervening years, he would be detained more than sixty times and serve more than six years behind bars. Minos lived an epic life. Despite his name and homeland, it was an epic lived less in the style of Minoan myth than of the catechism.

      Minos, like many other Jehovah’s Witnesses, loved a verse in the Gospel according to Luke that valorizes...

    • Chapter 8 Recovered Memories
      (pp. 76-87)

      This is the story of two boys born in Austria under Hitler’s rule. Each of the boys spent most of the war in Carinthia, the mountainous province that was a bastion of Austrian Nazism and even today remains a center of neo-Fascism. At very different ages, each dramatically glimpsed the truth of his parents’ wartime role. Peter Michael Lingens’s earliest memory is of sitting in a car when he was three and admiring the men with shiny guns at the door of his family’s fine home. He’d soon learn that the Gestapo had arrested his parents for hiding Jews. They...

    • Chapter 9 Mohammed Comes to Strasbourg
      (pp. 88-98)

      Sevket Kazan offers me a cup of sugary Turkish tea in his nondescript office, which is distinguished only by its photo of modern Turkey’s founder, Mustafa Kemal Ataturk. A portrait of Ataturk is not generally a distinguishing feature in Turkey; indeed it is required by law. But this photo is a collector’s item; it shows the militant secularist, who banned Muslim headwear, standing beside a turbaned imam. According to the caption, Ataturk is thanking Allah for Turkey’s military successes.

      “We are not an Islamist party,” Kazan is saying to me, as the call to prayer from the mosque attached to...

  7. Part III State Violence

    • Chapter 10 The Death Penalty, Mutilation, and the Whip
      (pp. 101-107)

      Corporal punishment and capital punishment are rarely discussed together, for fear that the one will trivialize the other. But grouping “the death penalty, mutilation and the whip,” to borrow a phrase from Tocqueville, is not wholly illogical. Corporal and capital punishment lie on a continuum of state-sanctioned violence against the person. And both are areas where the contrast between European and American practice is especially sharp.

      The tradition of British corporal punishment is well known to devotees of English literature. Remember the sadistic schoolmasters of Charles Dickens novels? Nicholas Nickleby watched with horror as Wackford Squeers whacked his young friends,...

    • Chapter 11 The Original Hooded Men
      (pp. 108-122)

      The tension between state antiterror policies and individual rights was not invented on September 11, 2001. Thirty years earlier, the world was shocked by reports of British soldiers rounding up Northern Irish terror suspects, throwing hoods over their heads, and using bizarre methods of interrogation, including sensory deprivation. The parallels to the American scandals at Guantánamo Bay and Abu Ghraib are lost on no one in Europe with a sense of law and history. But, sometimes, the United States seems to suffer from its own form of sensory deprivation, being blind and deaf to the experience of the world. The...

    • Chapter 12 The Tortures of Aksoy
      (pp. 123-134)

      Turkey’s Kurds receive less attention than Iraq’s Kurds, although they are perhaps three times as numerous. They receive less attention than the Northern Irish, although their conflict was ten times bloodier. And they receive less attention than the Bosnians or Kosovars, although their suffering posed a similar test for Europe’s democratic self-image. An armed conflict raged between Kurdish separatists and Turkish state forces in southeastern Turkey from 1984 to 1998. At its height in the early 1990s, the conflict rose to the level of a full-scale war. Thirty thousand people were killed, and more than a million dislocated, with well-documented...

    • Chapter 13 Two Faces of Kurdish Feminism
      (pp. 135-146)

      The Kurdish cases gave the mature European Court of Human Rights its first extended chance to grapple with political violence in all its forms. Among them were rape, as in the case of Sukran Aydin, and sexual harassment, as in the case of Nebahat Akkoc. Although Aydin and Akkoc will forever be linked in the histories of European human rights and of Turkish feminism, they came from opposite ends of the Kurdish social spectrum. “Rape” was not part of Sukran’s mental or verbal vocabulary. Nebahat not only knew the word, she could write a dissertation on it. In every way...

  8. Part IV Challenges for the Future

    • Chapter 14 The Chechen Challenge
      (pp. 149-158)

      Kurdish cases began to dominate Strasbourg a few years after Turkey’s full acceptance of European Court of Human Rights jurisdiction in 1990. Russia joined the Council of Europe in 1997, accompanied in the surrounding years by some twenty Eastern-bloc nations. It follows that the landmark challenges of the next few years will originate in the ex-Communist zone. The next two chapters examine what I believe to be the two greatest human rights crises in contemporary Europe, beginning with the Russian military’s abuse of Chechen civilians.

      The main gateway to Chechnya is Ingushetia, an obscure Russian republic perhaps best known to...

    • Chapter 15 The Roma Challenge
      (pp. 159-168)

      School desegregation was the issue that kick-started the golden age of American rights jurisprudence, with the 1954 decision ofBrown v. Board of Education. In Europe, the rights of equality seem to be the last on the agenda. The issue is at last being forced by a group of Czech Roma children, who have produced statistics to make a Selma school superintendent blush. Their case is destined to be remembered either as Europe’sBrown v. Board of Education, or—more likely—as theBrown v. Board of Educationthat wasn’t. There’s no doubt that the Roma, more commonly known as...

  9. Part V Concluding Thoughts

    • Chapter 16 A Constitutional Identity for Europe
      (pp. 171-180)

      The stories in this book may be read for their human drama. Individually, they tell us something about Muslims in France, Kurds in Turkey, gays in Britain, and so forth. The larger question is: do they say anything about Europe as a whole?

      Universal human rights became European human rights because when the idea came along after World War II, the universe wasn’t ready—but Europe was. The United Nations embraced lofty rhetoric in the Universal Declaration of Human Rights of 1948. Elegant as that document may be, it is merely aspirational. The UN lacked the unity to agree upon...

    • Chapter 17 Human Rights in Europe and America
      (pp. 181-186)

      The field of European human rights was pioneered by a handful of lawyers who studied American law during the civil rights era. The grand irony is that they brought home the innovations of the Warren Court, only to find a generation later that they bear the torch of civil liberties alone.

      The barristers David Pannick and Lord Anthony Lester have aptly called the European Court of Human Rights before 1966 “a sleeping beauty.” The crucial event that year was the United Kingdom’s acceptance of the right of individuals to petition Strasbourg. Individual plaintiffs are a driving force for change in...

  10. Sources
    (pp. 187-206)
  11. Index
    (pp. 207-216)
  12. Back Matter
    (pp. 217-218)
  13. [Illustrations]
    (pp. None)