American Bar Foundation
From Cold War Instrument to Supreme European Court: The European Court of Human
Rights at the Crossroads of International and National Law and Politics
Author(s): Mikael Rask Madsen
Source: Law & Social Inquiry, Vol. 32, No. 1 (Winter, 2007), pp. 137-159
Published by: Wiley on behalf of the American Bar Foundation
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Law & Social Inquiry
Volume 32, Issue 1, 137-159, Winter 2007
From Cold War Instrument to
Supreme European Court: The
European Court of Human Rights at
the Crossroads of International and
National Law and Politics
Mikael Rask Madsen
The history of the genesis and institutionalization of the European
Convention on Human Rights offers a striking account of the innovation of
a new legal subject and practice-European human rights-that went along
with, but also beyond, the political and legal genesis of Europe following
World War II. The rise of the European human rights institutions shows
not only how law and lawyers played key roles in the early politics of
European integration but also how the subtle combination of law and
politics-as both national and international strategies-continued to play
a decisive part in the institutionalization of European human rights. The
article generally argues that the interplay between law and diplomacy had
a fundamental impact on the innovation of European law and that lawyers
capable of playing an intermediary role between the two were particularly
central to this development.
Mikael Rask Madsen (mikael.madsen@jur.ku.dk) is a researcher at the University of
Copenhagen, Faculty of Law, and an associate researcher of le Centre de Sociologie Europeenne,
Paris. He holds a doctoral degree in sociology from l'Ecole des Hautes Etudes en Sciences
Sociales, Paris. His doctoral thesis traced the modern history of human rights (1945-2000)
in a number of European countries and analyzed the role and position of law and lawyers in
these transformations. His current research focuses on the intersection of law and politics and
the interplay between national and international legal orders. The present article builds upon
an article published in Critique internationale and a recent paper, The Rise of the ECHR and
the Internal and External Production of a European Legal Space at the Crossroads of the
National and International, which was presented at the European Ways of Law: First European
Socio-Legal Conference in Ofiati, Spain, July 2005. The current research has been financed
by a grant from the Danish Research Council (Grant No. 24-03-0228).
? 2007 American Bar Foundation. 137
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138 LAW & SOCIAL INQUIRY
INTRODUCTION
This article analyzes the genesis and institutionalization of the Europ
Convention for the Protection of Human Rights and Fundamental Fre
(ECHR) as an example of the rise and transformation of European law
the postwar period. It centers on the role of the legal actors and their int
with diplomacy, and more generally politics, in the breakthrough of the
pean human rights institutions. It particularly explores the blurred boun
between law and politics during the early period (1950-1975) and how
also influenced the subsequent institutionalization of the ECHR: ho
initial lack of institutional autonomy of the European Court and Commis
as well as the absence of a yet developed legal science or general know
on European human rights, allowed national political interests and concep
to influence this laboratory of European law and integration. This s
legal-political interplay was further replicated in the practices of many
advocates of the ECHR. A considerable number of the most ardent promo
of the Convention were indeed operating within both legal and po
fields, as well as they zigzagged between-and strategically utilized-th
national and international levels of actions. Eventually, and as reacti
the initial dynamics, the ECHR system gradually gained a higher deg
legal autonomy, which was achieved through a set of interdependent pro
of institutionalization, legalization, and even scientification of Eur
human rights.
The argument is straightforward and follows what might be regarde
a Weberian rationalization process, which can be illustrated by two
trasting ideal-types. The initial launch of the ECHR system was in m
ways a Cold War endeavor with clear geo-political connotations, and only
was it turned into the sophisticated legal system we know today. Its
operation was dominated by a group of high-level legal experts who man
to both develop its legal functionality and appear unthreatening to c
national political interests. These jurists deployed a tacit understand
the relationship between law and diplomacy, using the latter when confr
with high-political questions related to decolonization or high national po
This particular understanding of the role of the institution-a specifi
discretion-generally helped legitimate and empower the system vi
the national political and diplomatic interests. Over time, and buildi
this institutional platform, the institution embarked upon developing a
legalistic and dynamic understanding of the European Convention.
new enterprise took many of the member states by surprise as it sought
to harmonize the European protection of human rights and to cre
up-to-date catalogue of rights, which was far more comprehensive than
could have been predicted from the wording of the original text.
To analyze the emergence of European human rights law in a ma
that captures the various interplays of law and politics and the national
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The European Court of Human Rights 139
international levels of action, this article insists upon viewing the national
and international levels as interdependently connected, as well as interdependently
producing the ECHR system. It thus examines the emerging ECHR
system from both an intrainstitutional perspective and from the point of
departure of national legal and political strategies (see Dezalay and Madsen
2006). Underlining the import-export mechanisms between national and
international legal and political fields, this approach seeks basically to
reconsider the question of European institutionalization in a way that
integrates the internal and external production of this nascent institutional
space (Madsen and Dezalay 2002).1 The approach further emphasizes the
agents as the transmitters and advocates of specific European agendas, yet
analyzes these in regard to their national origins and interests. Ultimately,
the objective is a sociology of Europeanization that centers on the circulation
of ideas and models-how competing ideas and models were being promoted
by a host of actors using their specific national and international
resources, expertise, and other capitals, and how these exchanges helped
produce European law and institutions (see Bourdieu 2002, 1986). As noted
above, a particularly striking dynamic of the institutionalization process
of European human rights in Strasbourg was the institution's balancing of
the new European law with national political interests and strategies.
Throughout the analysis, I therefore emphasize the interplay between law,
politics, and diplomacy. In practice, these terms were blurred, yet, on the
conceptual level, some working definitions can be provided. I consider law
as a set of systematized practices informed by a differentiated legal methodology
and tradition and politics as both an institutional and more informal
process of promoting and negotiating specific interests. Finally, diplomacy
is seen as a specific international variant of politics, which is equally both
formal and informal, as well as it is influenced by a particular set of issues,
for example questions of "national sovereignty," the "international common
good," etc.
HUMAN RIGHTS AT THE COLD FRONT: THE GENESIS OF
THE ECHR
The European Convention on Human Rights, and more generally the
Council of Europe, continued a project already initiated by the United
1. In addition to using a basic framework deriving from the sociology of Pierre Bourdieu
this article further builds upon a conceptualization of Europe which suggests that the rise o
human rights in Europe has to be seen in the context of the transformation of European sta
internally and externally, and particularly the large-scale transformation of the European coloni
powers and their political and social adjustments toward Europe. See further in Madsen (200
and Charle (2001, 17).
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140 LAW & SOCIAL INQUIRY
Nations of building international law and cooperation in order to safeguard
against repetitions of mass-scale armed conflict. Besides these overriding
objectives, the rapid drafting of the ECHR reflected a growing fear of, on
the one hand, the rising power of the national Communist parties, and, on
the other, Soviet imperial expansionism into Western Europe, notably in
respect to Italy at the time of negotiation.2 Effectively, none of the Eastern
European countries ratified the ECHR, and the subsequent development of
the system was to happen in a club of Western European countries that,
regardless of their different interests in the Convention, were like-minded
when it came to the protection of liberal European democracy.3 From the
onset, the European system was therefore freed from the kind of Cold War
sabotage that was to hamper the U.N. human rights system for decades.4
This specific like-mindedness should be underlined, as it also helps explain
why the majority of the parties to the ECHR, to begin with, tended to perceive
of European human rights as mainly a measure against an external threat.
More precisely, the Convention was mainly assumed to provide the legal
and political means for deterring the future rise of any sort of fascism in
Europe-from within or from the outside-rather than, at least initially, being
the instrument for substantially altering or unifying the practices of the legal
systems of the member states.5
In spite of these constraints, the quasi-revolutionary idea of establishing
a supranational European Court and Commission with the powers to enforce
a Convention consisting of core European democratic values offered the
framework for a potentially far-reaching plan for creating European law.
Helping to realize these ambitious institutional arrangements, the objective
relatively early on became to draft a legally binding Convention with powerful
associated legal institutions-as opposed to drafting yet another Declaration
in the style of the Universal Declaration of Human Rights (UDHR) only
2. Further, among the numerous former Resistance fighters participating in these negotiations,
European human rights seemed to offer the measures to remedy the odious protection
of fundamental rights that the "occupied" legal systems had furnished during WWII. See, for
example, on France in Bancaud (2002).
3. Mirroring these Cold War tensions, a much debated issue was the question of whether
to include a "right to property" in the ECHR. Not only would it hit right at the heart of the
growing East/West divide and be unacceptable to Socialist governments, but it also posed a
certain challenge to the great welfare state nationalization programs, which had been carried
out in a series of European countries in order to ignite the economies following the destructions
of WWII. The eventual inclusion of such a right in the Protocol No. 1 of 1952 consolidated
what was already given: The system was to protect Western European human rights rather
than more generally European human rights.
4. At the "Congress of Europe" meeting in May 1948, observers, mainly dissidents from
Bulgaria, Czechoslovakia, Hungary, Poland, Romania, and Yugoslavia had been present.
5. This is of course not to claim that the legal contents of the Convention were not
taken seriously but instead to underline what was regarded as the main function of the Convention
at the time.
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The European Court of Human Rights 141
supported by "soft" legal institutions.6 The key advocates of these plans were
an all-star cast of lawyers and politicians of the period, whereof many had
links to the national resistance movements. One of these many high-profile
actors, Pierre-Henri Teitgen (see Box 1), law professor, important member
of the French Resistance, Christian Democratic politician and anticommunist,
became a key actor in regard to the drafting of the ECHR.
BOX 1. PIERRE-HENRI TEITGEN (1908-1997)'
Building on his credibility as a well-known Resistance fighter, Teitgen belonged
to the inner circle of French law and politics of the postwar period. His father
had been a batonnier [Head of the Bar], as well as Vice-President of I'Assemblke
nationale, and Teitgen showed equally a great talent for combining legal and
political careers. As a politician, he took part in the Christian democratic movement,
which emerged strongly in the aftermath of WWII. He was a Christian-Democratic
(MRP) deputy (1945-1958) and head of MRP (1952-1956). Under the Fourth
Republic, he held a number of ministerial positions: Minister of Justice (1945-
46), Defence (1947-1948), Information (1949-1950) and later Minister of "France
d'Outre-mer [overseas]" (1955-1956); he was also Deputy Prime Minister (1948
and 1953-1954). As an academic, he held positions at several law faculties,
including Nancy, Rennes and finally Paris where he cofounded the Centre d'Etude
et de Recherche Europlennes (CERES) in 1963, the first center of its kind in
France. He was also the first French professor to teach European law during the
semester 1963/1964. Finally, he was significantly involved with the large liberal
daily Ouest-France.
Teitgen was appointed rapporteur of the Committee on Legal and
Administrative Questions set up under the Council of Europe, a committee
hosting an elite group of jurists including the Conservative British lawyer
and politician, as well as former Attorney General and Prosecutor at the
Nuremberg War Crime trials, Sir David Maxwell Fyfe, as president, and
former Italian Minister of Justice and First President of the Italian Court of
Cassation, Antonio Azara, as vice-president. The members of the Committee
reflected the central role played by the European Movement and the Congress
6. Such a project had already been advocated by a number of European movements.
Whereas these movements initially had been dominated by British actors, as well as gained
funding from a variety of sources including U.S. covert funding, it was soon to develop in a
fashion that mirrored the diversity of interests of the European continent. The idea of drafting
a European human rights convention was further concretized under these auspices at the Congress
of Europe meeting in May 1948. See further in Simpson (2004, 562).
7. See further in Teitgen (1998).
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142 LAW & SOCIAL INQUIRY
of Europe (1948) at this early point: Pierre-Henri Teitgen and Sir David
Maxwell Fyfe, with Belgian international law professor and senator, Fernand
Dehousse, and a number of others, had already at this point founded the
International Juridical Section of the European Movement. This expert
group had, in this capacity, drafted a European Bill of Rights and argued
for a legal architecture that included a central Court to enforce the Bill.
Drawing on these experiences, the Committee on Legal and Administrative
Questions wrote the important Teitgen Report of 1949, which framed both
the institutional and normative contents of the ECHR. Their proposal was
then passed on to the Conference of Senior Officials for a final screening
and fine-tuning prior to being presented to the interstate political level.
Despite thus following normal protocol, this group of activist jurists managed
to have a significant impact on the Convention-and this by combining
the complementarities of their legal specializations and national political
contacts. Also, it should be underlined, these jurist-politicians were well
aware of the importance of pursuing their legal idealism of Europe in a
pragmatic and politically acceptable way. Thereby, they differed from the
more speculative critique, which had come out of the legal community at
the occasion of earlier European integration projects, for example, the
Briand-Project of 1929.8
The best example in this regard was the effective political engineering
of the project by Pierre-Henri Teitgen. Drawing on his political experience,
as well as his moral authority as a WWII freedom fighter, Teitgen played
an instrumental role in pushing the project forward when it encountered
its first substantial problems, such as the controversies over the scope of rights
to be protected. In 1949, on behalf of the Committee, he emblematically
stated:
The Committee on Legal and Administrative Questions had first to draw
up a list of freedoms which are to be guaranteed. It considered that,
for the moment, it is preferable to limit the collective guarantee to those
rights and essential freedoms which are practiced after long usage and
experience in all the democratic countries. While they are the first
triumph of democratic regimes, they are also the necessary condition
under which they operate. Certainly, professional freedoms and social
rights, which have themselves an intrinsic value, must also, in the
future, be defined and protected. Everyone will, however, understand
that it is necessary to begin at the beginning and to guarantee political
democracy in the European Union and then to co-ordinate our
economies, before undertaking the generalization of social democracy
(Merrills and Robertson 2001, 8).
8. See Vauchez and Sacriste (2004).
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The European Court of Human Rights 143
Besides advocating divisibility between the so-called two first generations of
rights, another interesting aspect of the statement is the indication that he,
as many of his contemporaries, worked with a larger optic on the prospects
of a Council of Europe and European human rights. He basically assumed
a natural bond between the general politics of European economic and
political integration and the specificities of human rights.
A keen Europeanist and belonging to the circles around Robert Schuman,
Teitgen, at this point, saw the Council of Europe as the European forum.
But, the conflicting interests of European federalists and confederalists-as
well as between the advocates of a European expert organization as opposed
to a European political union-in practice deprived the Council of Europe
such an all-encompassing European role. However, these initial conflicts
indirectly contributed to the acceptance of the ECHR and the relative ease
with which it was to develop. In respect to the more skeptical member states,
it was vital that they, at this early point, were assured that the Council of
Europe was not a pretext for developing a federal European master plan but
rather an intergovernmental organization generally respecting the sovereignty
of the member states. Yet, in regard to the prospects of a larger, more coherent
European legal construction, this was the essential point of bifurcation of
postwar European integration: retrospectively, we can observe that the ECHR
became the "site" for a particular and specialized institutional framework
safeguarding European human rights in Strasbourg, while the general process
of integrating European economies was, by and large, to take place under
the European Economic Community eventually built in Brussels.9
FROM POLITICAL TO LEGAL INSTRUMENT:
THE INSTITUTIONALIZATION OF THE ECHR
Having its roots in both the postwar politics of European integrat
and the politics of the Cold War, the ECHR became the instrument fo
gradual development of European human rights doctrine and expertise.
system consisted of two central organs-the Commission and the Cou
which were to enforce and legally refine the broadly defined provision
the Convention. Although the system was assumed to take a legal form
fact underlined by the creation of a genuine Court, the relative nature of
objective was illustrated by the limited powers of the Commission visthe
Committee of Ministers. Indeed, if the Court was the vivid symb
9. Generally speaking, in the area of human rights the "Brussels path" was not to encou
the Strasbourg institutions until the 1990s with the Maastricht, Amsterdam, and Nice Trea
as well as the European Charter of Fundamental Rights, opening up for a beginning reinteg
of the two "Europes" (see Delmas-Marty 2004, 409).
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144 LAW & SOCIAL INQUIRY
the intra-European will in the area of human rights, its coexistence with a
Commission having a key filtering role, yet being subjected to the Committee
of Ministers, was the clear manifestation of the continuous interplay of law
and politics in the area. Also the simple fact that the system was run by a
miniscule staff and a group of judges and commissioners only spending a
few days a month in Strasbourg suggested an inherent institutional fragility.
Nevertheless, the system entered into force in the mid-1950s: in 1955, the
Commission was competent to receive individual applications against
contracting states; the Court was inaugurated in 1959.10 What is striking
about the nascent institutionalization of the Convention was how the interplay
between national diplomatic interests and the entrepreneurship of the leading
actors formed this institution and its initial practices. One way of analyzing
this complex game of crossing interests and multiple levels of action is by
first briefly analyzing the interaction of the member states with the emerging
ECHR system.
A. Diplomatic Constraints: National Strategies Toward the ECHR
As already suggested, the specific Cold War context of the genesis of the
ECHR caused European human rights to mainly appear as an export-trade
of the member states to a new European legal and political terrain. This
mental and political exteriorization of the reach of the Convention helps
explain how, for example, French and British agents could pursue key roles
in the drafting of the Convention, comfortably assuming that the ECHR
was merely a Europeanization of their own national practices of respectively
libertis publiques and civil rights-and this, at the same time, as they were
battling mounting human rights problems in the colonies. As concerns the
strategies of other founding member states, this exteriorized perception and
conception of the system also prevailed. In the Scandinavian countries, for
example, we find similar strategies of externalization as well as a number of
country-specific issues being discussed. For these small countries, the overriding
question of supranational control in an area of human rights was far
from straightforward. Also, a number of more particular questions concerning
the Scandinavian protection of human rights-for example religious
freedoms vis-a-vis the privileged position of the Lutheran Church-were
seriously discussed at the time (see Simpson 2004). Nevertheless, the case
of the declining "imperial societies" of France and the United Kingdom
provides the best illustration of the political constraints that this new
10. After its adoption, the ECHR system was amended five times in the following two
decades. These amendments, known as the Protocols 1-5, covered a variety of issues from
laying out internal procedures to gradually expanding the catalogue of rights.
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The European Court of Human Rights 145
institution faced during the postwar period. Not only had these two countries
political and legal weight in Europe, their complex maneuverings between
late-colonial interests and the building of Europe had an impact on the ECHR
system at large.
The French stance toward the ECHR was generally structured around
a latter-day imperialist balancing act consisting of both securing that colonial
matters remained an issue of national politics and, simultaneously, continuing
a tradition of supplying "universals" to the international level. Needless to say,
the question of European human rights fit well into this line of "universalist
diplomacy"-there was even a sense of obligation of imposing French
traditions, as France, after all, was the cradle of human rights when seen
from Paris (Pateyron 1998). The French investments in European human
rights (but also U.N. human rights) were correspondingly very significant
at the birth of these instruments. Yet, France did not ratify the ECHR until
1974 and did not allow individual petition before the European Court until
1981. Overall, this was due to a general disbelief in supranational control
of the area of libertis publique, a sentiment only exacerbated during the
colonial battles where the quest for sovereign control and nonintervention
of the international community seemed paramount. Because of this legally
limited engagement with the ECHR, France had initially only one representative
at the Strasbourg human rights system. It was the law professor,
Vice-President of the Conseil d'Etat and former legal adviser to General de
Gaulle in London, Rend Cassin, who nevertheless went on to become both
Vice-President and President of the Court." Emblematically, his task consisted
of judging the human rights record of all ECHR member states except
France.
In terms of the development of what we might term the institutional
identity of the ECHR system, the ambiguous French position had an important
yet indirect effect. These prudent strategies generally showed that even a
key founding member-which further claimed a general authority in the
area-did not feel compelled to fully commit to the new European human
rights. Basically, regardless of the impressive legal machinery being put in
place, the French position suggested a vision of European human rights as
a sort of "negotiated justice" rather than a universal commitment. In this
sense, France continued a tradition of perceiving international law as being
an issue subject to diplomatic calculations. As well, they sent a clear message
11. Despite having greatly contributed to the drafting of the ECHR, Teitgen was, thus,
not appointed as the first French judge. He did experience a short-lived comeback in 1976
when he was appointed to complete Cassin's term from 1976-1980 at the Court. It should
be pointed out that Rene Cassin had played a fundamental role in regard to the drafting of
the UDHR and the setting-up of the U.N. Human Rights Commission. See further in Agi
(1998).
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146 LAW & SOCIAL INQUIRY
to the high-profile envoys in Strasbourg of their intention of a measured
development of the institution.
Although the British strategies toward the ECHR were different from
the French, the outcome of the British practices was comparable. Above
all, they also contributed to a diplomatic approach to the institution
in the sense of an understanding that sought to balance legal progress with
a tolerance of country-specific political interests. But, whereas the Quai
d'Orsay-the French Foreign service-had relied on academics with links
to the political world (notably Charles Chaumont, later Rene Cassin, and
eventually Pierre-Henri Teitgen), the British Foreign Office, and specifically
its small corps of legal advisers, were to largely control this new area of international
law and diplomacy. After having first assured that the Council of
Europe only developed as a sort of traditional supranational institution, the
United Kingdom generally sought to play a leading role in the manufacturing
of the human rights system. When the ECHR was ready for signature in
1950, the United Kingdom was the first state to sign; in 1966, after having
overcome the debate as to whether it was acceptable that an international
legal institution should oversee the celebrated British civil rights, the United
Kingdom accepted the right to individual petition for British individuals
under the ECHR, and, in 1967, for individuals of its dependent territories
(Evans 1997, 88). However, the subject of international human rights
was kept under a certain control by a nomination strategy that greatly
favored Foreign Office legal advisers or other actors with "sound" diplomatic
viewpoints.12
With the exception of the occasional grand professeur being promotedbut
only after having passed the "test" of being understanding of British
diplomatic interests-the Foreign Office legal advisers, as well as a few other
qualified civil servants, dominated the new area of international human
rights. Importantly, this appointment strategy greatly enhanced the significance
of conventional approaches to international law in the ongoing
process of conceptualizing and defining human rights. It also helped promote
the diplomatic values of the Foreign Office at these venues, the latter being
a policy of combining national interests and pragmatic internationalist
diplomacy with "hard law" (see Morphet 2000)." The actual impact of this
strategy can best be illustrated by the fact that the Cambridge law professor,
Sir Hersch Lauterpacht (see Box 2), unquestionably the leading authority
on international human rights law at the time, was never appointed to a
central human rights office and only worked in the periphery of the field
of human rights. Overall, the Foreign Office's offensive into the domain had
12. This point is based on a simple observation of the persons appointed, as well as interviews
with actors of this small milieu. See further in Madsen (2005).
13. See further on this form of symbolic violence in Bourdieu (1994, 101).
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The European Court of Human Rights 147
BOX 2. SIR HERSCH LAUTERPACHT (1897-1960)
A Polish-born Jew immigrated to the United Kingdom, Lauterpacht's involvement
in international human rights had a very personal dimension. Although he himself
had moved to the United Kingdom before WWII and thereby was saved from
the Holocaust, his family had suffered enormously from the Nazi persecution of
the Jews. Lauterpacht, if any, personified also the extreme change in perceptions
and outlook to which the emergence of international human rights corresponded.
As shown by Martti Koskenniemi, his oeuvre changed course dramatically after
the War from a prewar politics of cosmopolitanism to a grave legalistic focus on
human rights and humanitarian ethics (Koskenniemi 2001, 398; see also Simpson
2004). But this new commitment also made him stand out among his contemporaries.
Among colleagues of public international law, his visions were considered
too ambitious to be effective (Koskenniemi 2001, 390, n. 175). In the Foreign
Office, the sidelining of Lauterpacht was, however, justified by a reference to his
ancestry, not being "British enough." Although thereby continuing a tradition of
prejudice, which universal human rights was in principle seeking to eliminate, the
head of the Foreign Office Legal Service, Eric Beckett, noted: "Professor Lauterpacht,
although a distinguished and industrious international lawyer, is when all said and
done, a Jew fairly recently come from Vienna. Emphatically, I think that the representative
of HMG on human rights must be a very English Englishman imbued
throughout his life and hereditary to the real meaning of human rights as we
understand them in this country" (Sellars 2002, 12). It is however not so much
that Lauterpacht was not English enough as that his strong commitment disqualified
him as a British representative. As noted, the fundamental objective of the Foreign
Office was to administer this new area using the logics of conventional international
law and diplomacy, and this meant a sidelining of the more idealist jurists, even
if they were the leading experts. Lauterpacht was however later placed on the
International Court of Justice (ICJ) by the United Kingdom.
the effect of a diplomatic and legal pragmatic imposition in the production
of the new European human rights law. The objective was basically to
control and diminish the influence of the idealism that naturally went along
with the new international human rights discourse, and in that sense these
strategies resembled those of France.
B. "Cold-Blooded Law" as a Response to Political Conflict:
The Beginning Autonomization of the ECHR
As these syntheses of the British and French diplomatic positions on
the ECHR suggest, the postwar universalization and Europeanization of
human rights, although the basic idea found political support, was far from
free from conventional strategies of safeguarding national sovereignty and
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148 LAW & SOCIAL INQUIRY
interests.'4 Yet, the European Convention was more than just another
international treaty: it was the crown jewel of the Council of Europe and
more generally postwar Europe. It basically had a double construction as both
a political and a legal instrument that produced some paradoxes. Regardless
of the various diplomatic strategies outlined above, the two increasingly
ex-empires indeed held the presidency of the Court in turn until the end
of the 1960s, sending some of their finest jurists to take care of the "executive"
roles of the system and its development. Analytically, this situation of grand
legal build-up in the context of considerable diplomatic constraints highlights
a key dynamic of the early European human rights institution and its key
task of extricating law from politics. In practice, there was great need for
investment in not only a novel legal science and practical knowledge of
European human rights, but also, and particularly, in institutional politics that
could convince the member states of the intra-European political importance
and legal authority of this new institution.15
The initial recruitment to the task of developing European human rights
law was, above all, marked by the fact that the system was only in the course
of being built and was in need of both legal savoir-faire and institutional
legitimacy. The national political impact on the initial institutionalization
of the ECHR was reflected by the fact that the first judges and commissioners
appointed were predominantly foreign ministry legal advisers and eminent
law professors with international experiences-two roles quite occasionally
embodied by the same persons, as many of the professors had acted as consultants
or counsel to their governments. In terms of being a new legal knowledge,
international human rights was generally perceived as a new subdiscipline
of public international law-the law between nations-despite its inherent
universal and transnational claims. Therefore, the question of European
human rights was largely placed in the hands of lawyers trained in the diplomatic
services, backed up by the judgment and authority of distinguished law professors.
It was in these close and legally insightful circles of law and diplomacy
that the task of concretizing both the institution and its jurisprudence was
carried out.
These elite jurists listed in Box 3, together with a number of fellow
European "clones"-the majority being top law professors-and a minuscule
14. Generally in the Western bloc, postwar international human rights was neither
intended to greatly challenge the way Western democracies secured "legal justice," nor was
it designed to undermine late colonial politics. In fact, the declining European powers had
not only managed to keep the subject of decolonization out of both the UDHR and the U.N.
Charter, they had also secured "colonial clauses" in the ECHR, allowing territorial limitations
of the Convention and making the right to individual petition and the jurisdiction of the
Court optional. In other words, the question of national sovereignty was generally kept in
place in regard to decolonization.
15. For a more general analysis of the history of the construction of European law and
institutions, see Madsen and Vauchez (2005).
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The European Court of Human Rights 149
BOX 3. THE "COLLECTIVE HABITUS" OF THE ECHR
SYSTEM
The weak institutional positioning of these institutions generally privileged actors
who could muster multiple qualifications in politics, diplomacy, and law: for example,
the aforementioned Rend Cassin, but also his British counterpart, Lord McNair,
who besides being a London School of Economics professor of public international
law was a barrister and former President of the International Court of Justice in
The Hague. Lord McNair's career at the Court was however cut short, and he
was replaced by Sir Humphrey Waldock, Chichele Professor of Public International
Law and Diplomacy at Oxford, who also had "a distinguished wartime career in
the Military Branch of the Admiralty" behind him (Simpson 2004, 350). Some
of the judges and commissioners of the ECHR system were even former professional
diplomats, such as the Commissioner Sture Petren, a chief legal adviser in the
Swedish Ministry of Foreign Affairs who had been a key player in the drafting
of the Convention as head of the Conference of Senior Officials. Besides the
diplomatically well-acquainted actors, a very significant number were leading
legal academics in their respective national legal fields. These included, for
example, the Danish legal philosopher and expert of public international law and
constitutional law, Alf Ross, the Austrian Alfred Verdross, Dean of the Vienna
Law Faculty and eminent expert of public international law, the Italian professor
G. Balladore-Pallieri, equally a highly regarded expert of public international law,
as well as the high-profile Dutch professor of administrative law, Gerardus Johames
Wiarda.
bureaucracy, spent a few days each month in Strasbourg developing legally
and institutionally the ECHR framework. Due to their "collective habitus,"
they were generally inclined to deploy an approach consisting of both
a diplomatic understanding of European human rights with a more or less
self-sustainable and conceptual Professorenrecht. But, making this balancing
act delicate but also necessary, human rights had become a direct battle line
in the cultural Cold War of the 1950s and 1960s, seeing the opposing camps
of, respectively, the CIA-funded International Commission of Jurists and the
Moscow-oriented International Association of Democratic Lawyers fiercely
battling over the concept (Madsen 2004b; Dezalay and Garth 2002; Tolley
1994). This imposition of Cold War battle lines at the heart of international
human rights only made the task of developing the legal autonomy of
European human rights even more important.
The European system was, however, never to be paralyzed by legal bloc
politics as the U.N. Human Rights Commission, and it was actually anti
colonial inspired claims, rather than Cold War politics, that were to first test
the European human rights institutions. This was possible because of the
British decision to extend the reach of the Convention not only to mainland
Britain but also its colonial dependencies-a decision made by the Foreign
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150 LAW & SOCIAL INQUIRY
Office in a complex game of late colonial maneuverings (Simpson 2004).
Taking the system to its first real test, in the mid-1950s, Greece filed an
interstate complaint concerning robust British practices on Cyprus. While the
United Kingdom had never particularly sought to either justify or hide the
use of force in the administration of the colonies, with this pending complaint,
the need to legalize the colonial practices became increasingly "highpolitics"
(Simpson 2004; see also Fergusson 2003). The United Kingdom first
deployed a variety of legal tricks related to the uncertainties of the definition
of insurrection as a way of justifying the application of tough measures. But,
a Council of Europe delegation was sent to investigate whether the situation
was in fact grave enough for justifying such extraordinary measures. Headed
by the distinguished Danish law professor, Max Sorensen, the Mission started
actively gathering information.'6 Yet, what was building up to become a serious
case in Strasbourg imploded with the 1959 Zurich settlement on Cyprus
by the use of diplomacy rather than law. Shortly after, however, the so-called
Lawless case concerning the use of detention without trial in Ireland-a procedure
also increasingly used by the British in Northern Ireland-once again
put the British Foreign Office on alert. The case concerned the citizen Lawless
who was suspected of being a member of the IRA. For these reasons, he
was arrested in the Republic of Ireland and kept locked up for a period of
five months under an Irish legislation that allowed detention without trial
in the interest of public order and peace. Both the European Commission
and the Court unanimously held that this was not consistent with Article
5 of the Convention (right to liberty and security). The case nevertheless
failed, because an interpretation of Article 15 (emergency situations) found
that the Irish government had rightfully reasoned that the "life of the nation"
was threatened.
If this was supposed to be a warning of the mounting force of human
rights law, it helped draw some interesting conclusions in the European foreign
services: the Irish victory in the Lawless case together with the, at least
from the point of view of the British Foreign Office, diplomatically acceptable
outcome of the Cyprus cases, contributed to the conclusion that the ECHR
system was in fact not too dangerous if only handled in the right way using
both legal and diplomatic guile (see Simpson 2004, 1086-88). This
observation, which was obviously not only drawn by the U.K. Foreign Office,
suggested that the system was generally understanding to the subtleties of
diplomacy and, in particular, key national interests.
This image had in fact some real foundations. Generally, the Court and
Commission were not very progressive for the first ten to fifteen years, a
16. Eminent professor of public international law and constitutional law Max Sorensen,
who also happened to be an expert consultant to the Danish Ministry of Foreign Affairs in
the area of public international law, later became a Commissioner and finally a Judge (1973-
1979) in Strasbourg.
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The European Court of Human Rights 151
fact in part attributable to the key agents' habitus influenced by diplomacy
and public international law, as well as by the basic uncertainties as to the
reach of the institution in light of its genesis as a Cold War symbolic instrument.
This self-limiting strategy had the crucial effect of not only helping
the institution maneuver about the initial Cold War landscape but also turned
out to be critical for gradually convincing the member states that it should
be taken seriously. In the words of a former British judge at the Strasbourg
Court:
This had the very important and desirable effect... of building up the
confidence of Governments in the system. They didn't feel that the
system was going mad and that, you know, any applications from any
old chap that felt his rights had been violated would be successful before
the Commission (Interview April 25, 2001).
These remarks, drawn from an interview, evoke a key feature of the institutional
identity of the original institution, which had a great impact on
its subsequent development. The institution's gradual move toward taking
over the position as the supreme European human rights court was greatly
helped by this early representation of the institution as reliable, respectable,
and legally conservative. In other words, the ECHR system appeared to pose
no significant threat to the specificities of the national ways of securing
human rights and justice-as long as they were justified. Progressively, these
early dynamics translated into the ECHR jurisprudence. Most notably, the
principle of the (national) margin of appreciation, which provided a sophisticated
legal response to the built-in conflict between the (European) universalism
of human rights and the safeguarding of the national particularities
of the protection of human rights, was produced on the background of this
initial approach.
A EUROPEAN HUMAN RIGHTS LAW: THE
METAMORPHOSIS OF A COLD WAR INSTITUTION
Having survived both the heated Cold War and the politics of decolonization,
the ECHR system benefited from the geopolitical changes of the
1970s, taking the air out of the anticolonial struggles and creating a new EastWest
dialogue. Also, the growing human rights movement was increasingly
involved in the new cause of criticizing the more distant perpetrators of
human rights in Latin America or South Africa (Sikkink 1996). As part
of these transformations, the demand for human rights law was growing,
reflecting, for example, the strategies of Amnesty International of putting
the law of human rights before the politics of human rights in order to recreate
human rights in a more neutral form (Buchanan 2002; Dezalay and Garth
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152 LAW & SOCIAL INQUIRY
2002). As a vitalization of the dormant but very considerable legal tools
available in the Convention, the ECHR system began to step out of the cloudy
smokescreen of postwar political strategies and jump on the bandwagon of
this new legal practice of human rights."7 This provided a further revelation.
The network of grand professors and diplomats had in fact spent the period
of Cold War inertia nourishing the institution and its mechanisms-an effect
virtually intrinsic to the appointment of such a high-level group of juristsand
these "tools" were far sharper than what could be anticipated from the
Cyprus cases and the Lawless case. Also, a new set of judges and commissioners
were making their entrance in the 1970s and, with that, a new approach
to the enterprise.
In the early 1970s, emblematic of the fundamental changes in the human
rights field, it was ironically the Irish government that filed an interstate
complaint against the United Kingdom concerning the draconian interrogation
measures used in Northern Ireland. In its decision of 1978, the Court
eventually found that the interrogation techniques used by the British security
forces in Northern Ireland were in violation of the Convention.18 The recourse
to emergency arguments did not hold in this case-Article 3 (prohibition
of torture) did explicitly not allow derogation in time of emergency (Article
15)-and it became an occasion that further underlined the beginning of
the ECHR system's transformation, as well as the increased fine-tuning of
its inborn legal utensils. Such cases of very serious violations of human rights,
however, inevitably continued to push the system to the limit and were to
be followed by routine allegations of politicized law-this was, for example,
the case of the Thatcher government's response to the Court continuously
finding the United Kingdom in violation of the ECHR during the 1980s
(Ewing and Gearty 1990). But, at the same time, the ECHR started diversifying
its business in the sense that it expanded its reach and was decreasingly
only associated with these highly sensitive human rights cases. Whereas
the restoration of justice in cases involving very serious claims, for example,
torture, were a part of the institution's basic legal repertoire-and ultimately
its justification-it was by developing a larger and far more comprehensive
protection of a procedural justice, as well as an expansion of the catalogue
of rights, that it defined a new legal terrain (see Mowbray 2006).
With the new corps of judges in place, the institution was increasingly
venturing into imposing a sort of minimum standards of an effective legal
17. Contributing to this conversion, international human rights were officially "crowned"
in the late 1960s and throughout the 1970s, illustrated by a steady flow of Nobel Peace Prizes
to the pioneers of the area: Rend Cassin (1967), Sean MacBride, a signatory of the ECHR
and leading member of Amnesty International (1974), and finally Amnesty International
(1977).
18. The illegal practices included the so-called "five techniques" used by the security
forces: wall-standing, hooding, continuous noise, deprivation of food, and deprivation of sleep.
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The European Court of Human Rights 153
procedure and an expanding catalogue of rights on the legal systems of the
member states. These were drawn from the general terms of the ECHR but
spiced up with the new ideal of interpreting the Convention dynamically.
In addition to a set of younger new judges, among the central persons of
the "new court," we find, for example, Pierre-Henri Teitgen, who made a
comeback in the late 1970s to complete the term of Rene Cassin. The Court
was however not unanimously progressive. As the development of the jurisprudence
accelerated in the 1970s, so did the frequency of dissent from the
English judge, Sir Gerald Fitzmaurice, another key judge of the court in the
1970s. A former legal adviser of the Foreign Office, Judge on the ICJ and
member of the International Law Commission, Fitzmaurice's opposition to
the new dynamic doctrines was considerable, and he sought to maintain the
successful approach of the original Court (see Merrils 1982). Yet despite
Fitzmaurice's many dissenting opinions, the game of European human rights
law was changing. Good illustrations of this change are the cases of Tyrer
v. the U.K. of 1978, which laid out the doctrine of the Convention as a "living
organism," and Marckx v. Belgium, establishing the doctrine of an "effective
and practical" protection of European human rights.
Tyrer v. the U.K. concerned Anthony M. Tyrer, a British citizen aged
fifteen, who had been sentenced by the juvenile court of the Isle of Man
to "three strokes of the birch" for his assault of a senior pupil. The issue
was whether this corporal punishment was "degrading punishment" contrary
to Article 3 of the ECHR. The response of the Court-with a ten-page
dissenting opinion by Fitzmaurice-was that although such punishments
might be acceptable to the citizens of the Isle of Man, the ECHR "is a living
instrument... [and] must be interpreted in the light of present-day
conditions.., commonly accepted standards in the.., .members states"
(para. 31). This allowed for a dynamic interpretation of the contents of the
ECHR and, with that, a new ideal of an up-to-date human rights protection
that was further developed in subsequent cases. In Marckx v. Belgium, another
key doctrine was laid out, the one of a "practical and effective" protection.
The judgment basically obliged the member states to provide effective and
reasonable possibilities to its citizens to benefit from the protection of the
ECHR. In basic terms, the protection of the rights of ECHR was not an
abstract but a concrete obligation of the member states and a failure to provide
effective, practical access was to be a violation of the Convention.
This new progressive human rights doctrine took many of the member
states by surprise. While most member states had assumed that their legal
systems were generally operating on the basis of, if not up-to-date then fair
procedures, the enforcement of this novel doctrine of European human rights
made the caseload grow significantly. Seemingly far from the original postwar
and Cold War inspired objectives of the Convention, the build-up of this
avant-garde law reflected how these institutions were increasingly managing
to neutralize and even naturalize this originally politicized area of practice in
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154 LAW & SOCIAL INQUIRY
the sense of transforming the Convention into a deeply specialized legal
practice and discipline (see Bourdieu 1986). This veritable metamorphosis
of the ECHR system was obviously helped by the Court's initial balancing
between a more diplomatic role and the development of its own jurisprudence.
If the system for the first fifteen to twenty years had focused on the
build-up of reliable and respectable legal machinery, it was now using this
legitimacy for taking a far more dynamic and expansive direction. The project
was successful in the sense that the Court increasingly represented an important
legal forum for contesting the claims of a broader group of applications,
including the media, trade unions, and many others. This ultimately helped
consolidate the Court's position in the larger, more fluid European legal field,
as well as it allowed it to increasingly assume its role as supreme European
Court vis-A-vis national legal fields.
This process of gaining access to the national production of human rights
law was further facilitated by the set up of institutions in the various member
states with the objective of researching and thereby systematizing this new
area of law. Pioneering human rights research centers-such as the Essex
and Nottingham Centers in the United Kingdom, the Danish Center for
Human Rights, the Wallenberg Center in Sweden, the French centers in
Nanterre and Strasbourg, and countless others-strongly contributed to this
development. This emerging "scientificization" and systematization of human
rights was however hardly a fait accompli. In the area of human rights, the
distinction between law and politics remained hazy, as the area tended to
attract jurists with clear political agendas and interests well into the 1980s.
Nevertheless, the subject was becoming increasingly legalized and, thereby,
also the turf for less politically industrious lawyers. These "pure jurists," driven
by an almost entirely professional engagement, increasingly sought to bring
the new subject into more traditional disciplines (for example penal law),
as well as impose an additional degree of "legality" on the subject. Above
all, these intensified investments in European human rights were adding a
new credibility to human rights law. It was a development where the law
faculties played a key part but was soon followed by a significant number
of private practitioners and national judges who also welcomed European
human rights as a legal tool for reshaping and adjusting national ways of
protecting human rights. Thereby, the Europeanized concept of human rights
effectively entered the mainstream of the legal field, as well as it eventually
became an issue related to the very politics of transforming the state (see
Delmas-Marty 1989; see also Klug 2000).
This last paragraph should, however, not be read as an "end of history"
account, a final step in what might be easily misread as a pure rationalization
and institutionalization process. As argued elsewhere, Europe is always in
the process of reconstruction (Dezalay and Madsen 2006). This was more
true than ever in the 1990s when the European map had to be redrawn.
While the ECHR system had greatly challenged the member states throughout
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The European Court of Human Rights 155
the 1980s and early 1990s, the democratization of Eastern Europe became
a very considerable challenge to the ECHR system itself. The institution
had to integrate a very substantial number of new member states into its
institutional framework, as well as it had to monitor human rights in respect
to legal systems that had only recently been refurnished. To respond to this
new and larger role, the ECHR system underwent a very considerable
transformation to secure the regime's functionality in the new post-Cold War
era. In this regard, Protocol 11 provided the most significant reform. Coming
into force in 1998, a new and permanent Court was set up and charged
with an ever-increasing caseload derived from the approximately 800 million
individuals from more than forty member states.19 While this new European
"megasystem" of human rights protection became the appeal court for the
citizens of the new democracies of Eastern Europe-numerically a growing
group of applicants-this did not, however, mean that the old member states
had finally solved their human rights issues, only adding to an increasingly
heavy caseload.20 The question of delay, which had been imposed on national
legal systems in hundreds of decisions, was illustratively swinging back to
the ECHR system. Indeed, it seemed that the Strasbourg institutions were
beginning to allow increasingly more national margin of appreciation as a
way of limiting its own caseload. A new institutional balance was basically
in the making.
CONCLUSION
This brief and obviously incomplete history of the ECHR is illustrativ
of the innovation of a new legal subject and practice that went along w
but also beyond, the political and legal genesis of the idea of Europe. M
over, this story underlines the position of law as being both a unique
practice with clear links to the politics of the state and, at the same t
different from ordinary politics due to its differentiated ways of operati
Further, this sociological review of the constraints and issues that we
the center of the genesis and institutionalization of the ECHR provid
account of some of the original politics of European law and the role play
by legal and quasi-legal actors in these processes. In great contrast to
19. Protocol 11 replaced the Court of Commission of the "old" system with a new sin
full-time Court. Among the many novelties, individual recourse was made mandatory
Protocol 11. On the new Court, there were also as many judges as there were parties
Convention. In practice, the Court was divided into four sections with the option of refe
a case to a grand chamber composed of seventeen judges. Replacing the closed down
mission, a number of judge rapporteurs, as well as committees, were to perform the t
screening the cases received by the Court.
20. During the three years following Protocol 11, the Court's caseload grew significan
The number of applications registered rose from 5,979 in 1998 to 13,858 in 2001.
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156 LAW & SOCIAL INQUIRY
current more or less naturalized category and practice of European human
rights, this analysis underlines instead the constant interplay between law
and diplomacy as a basic condition to the rise of postwar European law. As
suggested, it was mainly due to the ability of the legal experts appointed to
these nascent European institutions to navigate both Cold War tensions and
the simultaneous process of decolonization that it managed to gain a position
not only in the emerging European legal field but also eventually in the
national ones. Thus, "coming in from the Cold" and indeed to the heart
of the definition of European legal justice by imposing a novel doctrine of
human rights law, these institutions came back with a curious boomerang
effect, instigating not only a mere repatriation of Europeanized human rights
law but also a more autonomous European human rights law as such (Madsen
2004b).
These basic conclusions drawn from the specific history of the emergence
of European human rights are also more generally evocative of the processes
of Europeanization when analyzed from the point of departure of law and
lawyers. When examined empirically in-depth, it appears that the processes
of Europeanization have always been marked by the exchanges of national
and international models and strategies. This was particularly obvious in the
case of the pioneers of Europe, such as Pierre-Henri Teitgen, who explicitly
pursued double careers in law and politics on both the national and European
levels. Using their unique positions and multiple specializations, they became
not only the couriers of the European idea, but also the middlemen involved
in the import-export between the multiple levels concerned (see Dezalay
2004). They thereby helped to circulate both national foreign models and
interests. Also, from the onset, the very definition of the boundaries of Europe
was essentially a part of the strategies of institutionalizing this uncharted
legal and political terrain. This observation should not be seen as only applicable
for understanding the history of a different epoch--of literally the genesis
of Europe-but also of the more contemporary issues of Europeanization
(Madsen and Dezalay 2006). While a number of European fields have clearly
achieved a certain degree of autonomy and thereby differentiated professional
careers and knowledge than what was the case at the genesis of Europe, current
emergent European fields are equally formed by professional-ideological, as
well national-international, double-games related to European integration.
This is not only due to the immediate political and legal interests in the
definition of the European space but also because the European venues have
become increasingly strategic for challenging national practices and vice
versa.21 In the area of European human rights, for example, British lawyers
involved in the battle with Thatcherism over civil rights and trade unionism
21. See the article by Yves Dezalay included in this symposium for similar observations.
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The European Court of Human Rights 157
during the 1980s started using European forums for relaunching and revalorizing
their national policies, which ultimately helped accelerate certain
European processes of human rights integration and institutionalization.
This last example from more recent European human rights politics
highlights an essential feature of the European terrain, namely the continuous
and striking interplay between its internal and external constructions. For
the same reasons, the history of the European construction should not only
be regarded as a story of the building of specific supranational institutions
and the political interaction of states but also as the story of a particular
set of political opportunities, which in turn contributed to the structuring
of this social space. Among these, human rights offered a particular set of
opportunities, which led to a European structuring process that both
reproduced national knowledge and conventions. Yet, these were not only
reinvented on the European level but were also reexported to the member
states and, subsequently, to states in the periphery of the European construction
seeking to comply with European law for entering the zone of
Europe. In this sense, the European human rights system has become a very
central institution continuously involved in translating the nationalEuropean
exchanges into a European law, which reflects the changing political
climates.
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