Claiming the Convention’s ‘Duties and Responsibilities’ in the Face of Illiberalism

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On Friday 22 November 2019, a celebration in honour of Paul Lemmens’ emeritus status was held, in the company of many of his friends and colleagues. For this occasion, a number of them wrote a contribution for the wonderful Liber amicorum Paul Lemmens. In this blog series we draw attention to several contributions in this book. This week, Michaël Merrigan considers the potential of ‘duties and responsibilities’ (article 10 ECHR) in the face of illiberalism.

The reference to ‘duties and responsibilities’ in Article 10 of the European Convention on Human Rights (ECHR) offers an underexposed potential in the face of rising illiberalism.  As illiberalism, especially of the contemporary European variant, gains ground by a sustained attack on liberal-democratic functions and institutions, the case law of the European Court of Human Rights (ECtHR), which connects the notion of ‘duties and responsibilities’ to people’s role and function in society, can be read as a manual for individual action against ‘illiberalisation’: by claiming one’s duties and responsibilities as rights, the individual can actively protect liberal democracy, even when the State does not.

Duties and responsibilities as taboo

Attempts to emphasize individual duties and responsibilities underlying human rights law have traditionally been met with reservations by human rights scholars and activists alike. While individual duties and responsibilities form a natural part of the human rights order, there has been a persistent fear that emphasizing them would lead to a weakening of the human rights acquis, as it would, inter alia, open the door to an unjustified curtailment of rights by authoritarian rulers, lead to the human rights legal framework being compromised by legally elusive moral and ethical considerations, and lead to rights being made conditional upon the fulfilment of vague and ill-defined duties and responsibilities to the State. While an unqualified use of ‘duties and responsibilities’ in the context of rights-protection can indeed give rise to justified concerns, this, however, does not seem to be the whole story.

The ECtHR, after all, regularly invokes individual duties and responsibilities, especially in the framework of Article 10 ECHR on freedom of expression, the text of which includes an explicit reference to ‘duties and responsibilities’. This reference seems to transcend the mere regulation of expression, serving, in fact, as a reminder of the fundamental role each and every individual can play in safeguarding and upholding the liberal-democratic society we live in. This realisation would seem to be especially urgent in our day since we are, at this moment in time, confronted with a rise in illiberalism, both through the establishment of ‘illiberal democracies’, and through illiberal populist tendencies within established liberal democracies. These developments are challenging the liberal-democratic framework of which the ECHR forms the bedrock.

Illiberalism as an attack on liberal-democratic offices and functions

Liberal democracy can be understood as a democratic form of government in which political power is constrained by the rule of law and which has at its centre the respect for, and protection of, fundamental rights and freedoms. However, some form of democracy can exist without liberalism, i.e. without the full scope of fundamental rights protection associated with liberal democracy. Following Zakaria, this is often referred to as an ‘illiberal democracy’.

Societies do not generally become illiberal overnight, but as a result of a long and, by times subtle, process of ‘illiberalisation’. More specifically, this process of ‘illiberalisation’ takes root through a sustained attack on the functions and institutions elementary to the liberal-democratic framework. Such attacks can take different forms. For instance, in a liberal democracy, parliamentarians have the elementary duty and responsibility to study and discuss proposed legislation. However, when, as in Hungary, fundamental constitutional reforms are introduced to Parliament in an untimely manner, not leaving time for effective study or discussion,  the fulfillment of this task is de facto made impossible. Similarly, judges have an essential task in society. However, the Hungarian government limited the powers of the constitutional court and forced judges into retirement, in violation of EU law. Moreover, it banned journalists from parliament, rendering their task of reporting on parliamentary topics more difficult, if not impossible, and newspapers were closed, further hampering journalists from carrying out their fundamental task as a watchdog in a democratic society.

Another example can be found in the raids aimed at ‘foreign agents’ systematically carried out against NGOs in Russia, clearly intended to discourage them from continuing their work. In Turkey, purges, which included the sacking of 1500 university deans, as well as of police, members of the military, academics, media personalities and members of the civil service, made it impossible for these people to fulfill their elementary tasks, and constituted a strong warning to those remaining in function to fulfill their tasks in accordance with government views. These purges therefore not only constituted a direct limitation of academic freedom, freedom of expression, and freedom of belief and other rights, they also constituted a clear and brutally enforced de facto obligation to those not yet arrested to conform to the regime, and to exercise their professions in function of the regime’s interests.

The realisation that ‘illiberalisation’ of society constitutes, inter alia, an attack on, and erosion of, fundamental tasks and functions within society, opens an interesting link to the Court’s case law with regard to article 10 ECHR.

Offices and functions in the case law of the court

Article 10 ECHR, in its second paragraph, explicitly mentions ‘duties and responsibilities’, in a way which seems to pre-suppose their existence quite apart from any legal translation and, in fact, as a background to, and justification of, legal limitations on individuals’ freedom of expression.

Any such limitations, of course, in turn need to be justified in reference to the aims listed in Article 10 ECHR.  These aims, broadly considered, all envisage areas in which the democratic society has legitimate interests. While the ‘duties and responsibilities’ mentioned in Article 10 ECHR therefore undoubtedly also include correlative duties (i.e. horizontal duties on the duty-bearer to respect a right directly held by another individual), they more often relate to aims benefitting individuals via mediation of the liberal-democratic State. These duties and responsibilities are,  in fact, owed to the democratic society so often referred to in the Court’s case law. It is the democratic community as a whole which expects the individual to contribute to ‘national security’, ‘territorial  integrity’, ‘public safety’ and the ‘authority and impartiality of the judiciary’, but also to pay attention to the reputation, health and morals of others, following which individuals benefit individually.

These duties and responsibilities are thus liberal-democratic duties and responsibilities, i.e. duties and responsibilities which the liberal-democratic society has a justified expectation that the individual will  indeed fulfill. While it is the State that will ultimately enforce these duties and responsibilities, these duties and responsibilities do not simply serve the State irrespective of the aims it pursues at that moment. Instead, they serve the liberal-democratic society. Consequently, the State cannot impose obligations which are not necessary in such a society. This is, after all, the very reason why the Court acts as the ultimate supervisor, verifying whether the imposed obligations are, in fact, necessary in a democratic society.

Now then, the notion of individual ‘duties and responsibilities’, when used, seems central to this necessity test conducted by the Court, when evaluating the proportionality of State restrictions on an individual’s freedom of expression. While all individuals have duties and responsibilities when exercising this freedom (Stoll v. Switzerland [GC], §102; Lindon, Otchakovsky-Laurens and July v. France [GC], §51), the Court hereby especially links the notion to people’s institutionalised roles and functions in society, and more specifically to their professional functions, to identify the specific duties and responsibilities these professionals hold, which justify restrictions placed on them.

The case law of the Court is rife with examples where the Court identifies duties and responsibilities in function of the institutional role people fulfill in the liberal-democratic society. Civil servants, for instance, have been held to have a duty of loyalty and discretion (Baka v. Hungary [GC],  §162; Guja v. Moldova [GC], §70; Rekvényi v. Hungary [GC],  §43; Vogt v. Germany [GC], §59). Public officials in the judiciary, for their part, should show restraint, and protect the authority and impartiality of the judiciary (Baka v. Hungary [GC], §164; Wille v. Liechtenstein [GC], §64).  Lawyers must be discreet, honest and dignified (Steur v. the Netherlands, §38; Veraart v. the Netherlands, §51), and should contribute to the proper administration of justice, and thus maintain public confidence therein (Nikula v. Finland, §45; Schöpfer v. Switzerland, §29). Police officers should act in an impartial manner, so that their reliability and trustworthiness in the eyes of the public be maintained (Trade Union of the Police in the Slovak Republic and Others v. Slovakia, §70). The neutrality of the police force is important, and can require special restrictions, especially in view of a country’s particular history (Rekvényi v. Hungary [GC], §46).  For military personnel, too, political neutrality is important (Erdel v. Germany, decision as to the admissibility), as well as the credibility and confidence enjoyed by the force (Matelly v. France, decision as to the admissibility). Teachers, from their side, are expected not to take advantage of their position to indoctrinate or exert improper influence on students (Vogt v. Germany [GC], §60). Politicians must refrain from discourse which promotes intolerance (Féret v. Belgium, §75; Erbakan v. Turkey, §64.), and not spend public funds in a discriminatory way (Willem v. France,  §37). They must also be especially attentive to the protection of democracy and its principles (Féret v. Belgium, §75). Members of the press – who, as ‘public watchdog’ fulfill a vital role in liberal-democratic society – have  to impart information and ideas on all matters of public interest (e.g. Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], §§125-126) and must do so in good faith and on an accurate factual basis, providing reliable and precise information in accordance with the ethics of journalism (Stoll v. Switzerland [GC],  §103; Magyar Helsinki Bizottság v. Hungary [GC], §159). 

Many more examples, also regarding other professions, can be found in the Court’s case law, but the general logic underlying the Court’s approach is clear. The journalist who exposes corruption by a politician, does not in the first place have a duty correlating to another individual’s right (although other individuals do have a right to receive information). Rather, the liberal-democratic society has a legitimate interest in such behavior being exposed and halted, and therefore counts on the journalist as the ‘public watchdog’. Similarly, the judge has a duty to be impartial and independent. Surely, in doing so, he is fulfilling the right to a fair trial of the defendant. However, as an organ of the State, the judge’s duty can hardly be regarded as a horizontal, correlative duty to the defendant’s human right. The judge, in the first place, owes it to society to take seriously the role assigned to him, since society relies on the judge to guarantee justice to all.

Claiming the Convention’s ‘duties and responsibilities’ as a catalogue of rights

It seems, then, that the duties and responsibilities in article 10 ECHR betray a much broader logic than is apparent at first sight. Liberal democracy, the only ideology compatible with the European Convention, entails its own set of behavioral expectations. Emerging from the Court’s case law is therefore a set of liberal-democratic duties and responsibilities which, inter alia (but not exclusively), connects to offices and functions in a democratic society, and which can be held to be pre-supposed by the Convention.

While these duties and responsibilities are traditionally associated with what limits an individual, the result can also be seen as a call for action at the individual level. In times of rising illiberalism, which entails par excellence an attack on the institutionalised roles and functions essential for a democratic society, Article 10(2) ECHR provides a glimpse of a rallying cry of decentralized action – liberal resistance, if you want – in favour of liberal democracy. In the logic of the ECHR, judges, lawyers, civil servants, teachers and journalists all have duties and responsibilities which they owe, not in the first place to the State, but to liberal-democratic society. The State can only impose obligations on individuals, in as far as these obligations involve a legitimate aim and are necessary in a democratic society. The individual seeking to preserve the freedom of his society, can, therefore, invoke his duties and responsibilities as rights against the illiberal(ising) State, when the imposed obligations are contrary to the requirements of a democratic society. The journalist exposing governmental corruption, the magistrate calling on his colleagues to resist regime pressure and remain independent, the civil servant refusing to release confidential personal information, the teacher taking a stand against State propaganda: they all have the Convention on their side. Moreover – and this is where the value of the approach lies – they can all claim to be not merely ‘exercising a right’, but to also not have a choice in doing so: human rights, liberal-democracy and, indeed, the ECHR actually demand and endorse their actions.  A few final remarks are in order at this point.

First of all, pre-legal duties and responsibilities logically may go beyond what is visibly necessary in a democratic society. What is ‘necessary’ only indicates the limits of an individual’s legal obligation, i.e. the legal restriction of the right. In other words, when judges are legally expected to be impartial, that legal obligation is clearly rooted in a duty that goes beyond what can be legally established and sanctioned. We, as a society, count on our judges to be truly impartial, beyond what is apparent or can be legally proven, and we thus expect them to strive for the greatest possible impartiality, but we can only sanction them (impose a legal obligation on them) for what is apparent, or what can be proven.

Second, duties and responsibilities connected specifically to functions are not absolute. They function as essential priorities to be heeded in function of liberal democracy, as it is conceived of here and now, and they may need to be balanced with other duties and responsibilities. Moreover, their scope and content depend on the division of labour within a given liberal-democratic society. They are, therefore, the consequence of an explicit as well as implicit societal negotiation. What is necessary in one society at a given time, may not be necessary in another society, or at another time. Town criers and street lighters used to be essential to the functioning of society, but their functions are redundant today. Ethical codes may have different details in different jurisdictions. However, the broad lines are clear, and the case law can, therefore, reveal general rules to live by. Judges must be impartial and independent, journalists must provide precise and reliable information, and politicians must refrain from sparking intolerance. Guidelines and rules that are incompatible with these principles have no place in a twenty-first century European liberal democracy, and  the onus is on those governments who think otherwise to make a case for deviating from them.

Third, invoking duties and responsibilities as rights, does not, from a legal perspective, give them an autonomous meaning. The applicable legal test for determining whether a restriction on an individual’s right – in casu the right to comply with one’s liberal-democratic duties and responsibilities – is compatible with the Convention, must still follow the rules set out in the ECHR, e.g., in the case of art. 10 ECHR, the threefold consideration of legality, legitimate aim and necessity in a democratic society.

Keeping the aforementioned in mind, the invocation of duties and responsibilities as rights can strengthen individuals in the face of illiberalisation, giving them a stronger voice as they stand up for their rights, and for the interests of the liberal-democratic society, envisaged and enshrined by the ECHR.

Michaël Merrigan is affiliated researcher at the University of Leuven’s Centre for Public Law, and lawyer at the Brussels Bar.

The full article on which this contribution is based, can be found in K. Lemmens, S. Parmentier & L. Reyntjens (eds.), Human Rights with a Human Touch: Liber Amicorum Paul Lemmens, Intersentia, 2019, pp. 693-713.

Image: wk1003mike/Shutterstock.com


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