Opening remarks by michael O'Flaherty at the Council of Europe ON Forum: High-level conference with Ombudsperson institutions and National Human Rights Institutions (NHRIs).
President of the Court,
Honourable Judges,
Distinguished leaders and representatives of ombuds and national human rights institutions,
Dear friends,
I am delighted to be with you this morning. I welcome the second of these conferences and I very much hope this will become an annual event. All of us who work in our fields need to meet regularly to offer each other solidarity, support, and resolve.
I particularly welcome this second day. I appreciate the initiative of the Court to convene us. This is an excellent development that can only help our work.
Certainly, I rely heavily on my engagement with the Court in implementation of my human rights mandate. I regularly make third party interventions in proceedings before it, and I also support the work for the execution of judgements of the Committee of Ministers.
In fact, the Convention and the judgments of the Court underlie every aspect of my work. Every intervention I undertake, every claim I make, is based on the standards of the European Convention as interpreted by the Court.
I would go as far as to say that – at least for me – a claim can only ever be a human- rights one if it has the law at its core.
I am also motivated by the extent to which I have seen how the Court’s jurisprudence can change a country for the better. Look at my own country, Ireland. Many would argue that it emerged into the modern self-confident state that it is today partly on the basis of a number of landmark Strasbourg judgments.
And so, friends, I would encourage you to make full use of today’s discussions and, to the extent that you do not already do so, to be ambassadors at the national level for the Convention and the Court.
As I speak, I am of course aware that our meeting is taking place against a dreadful background. Our world is awash in blood, with appalling wars raging in the Middle East and across the globe. Here in Europe, Russia's full scale invasion of Ukraine has entered its fifth year and there is no sign of respite, never mind peace.
I recall that these conflicts are marked by a disregard for international law – be it human rights law, humanitarian law or otherwise. The global treasury of multilateral treaties is shoved aside and compromised.
And, of course, the phenomenon of the resiling from international obligations is by no means limited to the context of warfare.
Here, within, or among, some Council of Europe member States – of parties to the Convention – I see much to concern us.
Take contemporary discourse on international affairs – there is talk of the importance of power and of pragmatic and self-interested foreign policies; much less of the promotion and defence of values and of everyone’s human dignity.
On the normative front, I see laws being adopted that seem inconsistent with the Convention and other human rights instruments – especially in the field of migration.
Staying with migration I observe the promotion of so-called ‘innovative solutions’ marked more by cruelty than by novelty.
In the specific context of the Council of Europe, we have witnessed a growing discourse of some states regarding the Convention, the Court, and that topic of migration.
The focus has been on the application of articles 3 and 8 of the Convention, their interpretation by the European Court of Human Rights and national courts, and various other matters, such as the rights of so-called ‘instrumentalised’ migrants like those who cross from Belarus into neighbouring states.
This debate is now channelled into a structured Council of Europe framework and is the context for inter-state meetings that are taking place in these weeks. The process is moving towards what will be a political declaration, to be adopted by member states at a meeting in May in Moldova.
Much has already been said and written about the path towards the political declaration. I have made my own view known on a number of occasions. In summary, I consider the fact-base for the exercise unconvincing, and the exercise itself replate with risk.
I have also said that States should consult closely with their relevant national institutions as they formulate their own positions on the various issues under discussion.
It is in that spirit that I take the opportunity of today’s gathering to encourage you to watch closely the roles of your own governments. I ask you to assist them to ensure that, at the least, the upcoming Declaration will not do harm, and, at best, that it will constitute a timely affirmation of the importance of the Convention and of the work of the Court.
May I suggest that you engage with your governments on at least five issues:
First, that there be nothing in the declaration that, expressly or by implication would seek to tell the Court what to do or otherwise challenge its independence.
Second, that, to the extent that attention is paid to national courts, that also their standing and independence is fully respected.
Third, again whether directly or by insinuation, that no hierarchy of rights holders is countenanced. That the principle of the universality of human rights is respected. Here I have in mind that relevant articles of the Convention must be understood to have the same normative content regardless of the identity of whatever rights-holders are in question.
Fourth that the declaration express support for the correct understanding of the principle of ‘declarative authority’ or ‘autorité relative’ – in other words that the core legal principle of specific judgments be understood to apply regarding the practice of all contracting states. And in this regard the declaration needs to avoid a conflation of this principle with any mistaken consideration that specific judicial findings should apply across diverse fact situations.
And fifth, I would encourage you to urge governments to seek a strong consensus on the declaration: a consensus that avoids a conflict of fine words with actual intent; a consensus that avoids doing damage through nuance and innuendo; ultimately, a consensus that seizes the opportunity to, as I said a moment ago, strengthen rather than weaken commitment to the Convention and the Court,
Why does all of this matter? It is certainly important for migrants who face deportation at risk of cruel inhuman or degrading treatment as well as those caught up in machinations along the Belarus border.
But the relevance is much wider.
If the principle of universality is breached, what group might be targeted next? Today it is certain categories of migrants; tomorrow what other unpopular small group?
Once the independence of the courts is compromised, we damage institutions that are essential for the wellbeing of our societies.
But then, you might also ask, do I attribute too much significance to what is, after all a political process that will not amend any treaty or change any norm? Is it, you might say, just a conversation within which problematic views are expressed, or as we say in English, no more than a storm in a teacup?
To such questions I would respond that this political process is the generator of a narrative. We know that it is narratives that drive change, for good or ill. Indeed, I would argue, the very process that I am speaking about has at least some of its origins in narratives of the far right in European politics. That is why it so very much matters in which direction our discourse will be directed.
Dear friends,
I have chosen to focus my words to you around just one specific area in need of immediate attention. Our shared concerns, of course, range much more widely. And, as I said at the outset, our engagement with each other is of such importance. It is in our cooperation and complementarity that we can be effective in confronting the vast challenges for human rights, democracy and rule of law. Today I renew my pledge to be a partner in this endeavour. I very much look forward to another year of liaising closely with many of you at the national level and, I hope, with all of you in our shared project of helping shape a Europe of which we can be proud.
I thank you.
EUROPE
