REVIEW A R T I C L E

HUMAN RIGHTS : RECENT PUBLICATIONS AND

DEVELOPMENTS BY IAN FLETCHER

I . Human Rights in Europe, by A. H. Robertson, 2nd Edition. Manchester University Press, I 977, 3 29 + xviipp. E9.9 j .

2. European Law and the Individual, F. G. Jacobs, editor. North- Holland Publishing Company, 1976, z I I + xipp EI I.

3. Yearbook of the European Convention on Human Rights, compiled by the Directorate of Human Rights of the Council of Europe. The Hague, Martinus Nijhoff. Annual series of volumes, price variable according to size: e.g. Volume 16 (1973), j 16+xviipp. E32-40; Volume 17 (1974), 704+xviipp. E46; Volume 18 (197j, 4j4+xviipp. E33.

4. Conspiray and Civil Liberties: A Cobden Trurt Memorandum, by Robert Hazell. London, G. Bell and Sons Ltd., 1974. I 2 8 pp. EI-80 (paperback).

I . The subject of human rights is nowadays so much in vogue that its very modishness is in danger of becoming an embarrass- ment to those who have over many years endured public and governmental indifference, and even active hostility, while patiently working to achieve the very necessary objective of a more enhanced, and more widespread, protection of the rights and dignity of the individual. The suspicion that certain politicians and statesmen may currently be exploiting the cause of human rights for personal ends must not be allowed to detract from the essential meritoriousness of the cause itself. Nor must it be forgotten that the present, and still imperfect, state of protection of human rights by means of legally-enforceable remedies and procedures is the product of a slow evolutionary process achieved by genuine idealists who were nevertheless prepared to accept a gradualist approach to the realization of their ideals, while never for a moment relinquishing the ideals themselves.

Surveying the progress which has taken place since 1945, one can liken the overall picture to some great, steadily-growing river which has drawn the strength from many tributaries, and in whose

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3 44 JOURNAL O F COMMON MARKET STUDIES midst a variety of currents are presently flowing: gradually, but inevitably, the great, moving body commingles, and its disparate elements promise in time to combine into a single force. While undoubtedly the main source of this ‘river’ may be traced to the Universal Declaration of Human Rights, proclaimed on December 10, 1948, and later to spawn the two United Nations Covenants approved by the General Assembly on December 16, 1966, it cannot be denied that since 1949 the most outstanding tributary has been that supreme accomplishment of the Council of Europe, the European Convention of Human Rights. Signed on November 4, I 9 5 0, and in force since September 3, I 9 5 3, this Convention, to which five Protocols have subsequently been added, has been ratified by eighteen European states to date and has been by far the most successful international instrument for the effective vindication of human rights which the world has yet seen. As one who was centrally involved in its implementation in his former capacity as Director of Human Rights of the Council of Europe, Professor Robertson is uniquely qualified to furnish an exposition of its history, contents and achievements. So much has taken place since the first edition of this work appeared in 1962 that the new edition is in large part wholly new material. In the new edition it is good to see the author appraising the remarkable instances of mutual reinforcement which have occurred between the law generated by the Convention on the one hand, and that slightly junior phenomenon the law of the European Economic Community on the other. The significance of the now celebrated Internationale Handelsgesellscbaft and Nold Cases of I 970 and I 974 respectively is rightly emphasized in the concluding chapter of the book, for these and other recent pronouncements of the European Court of Justice do furnish the basis for a theory of the emergence of a ‘common law’ of Europe, wherein the provisions of the European Convention constitute clearly-articulated principles of general application within the national and supranational legal orders by which the Member States of the EEC are bound. The value of such a unifying development may be plainly seen after a reading of Professor Robertson’s succinct summary, in Chapter 2,

of the present, variable state of effectiveness of the Convention within the national legal orders of the states party to it. In the case of the United Kingdom, for example, the high number of applications which have been ruled admissible since the right of individual petition was accepted by this country as recently as 1966, should suffice to dispel any lingering complacency about the extent to which the rights of the individual are currently secured

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by the provisions of English law alone. As a nation, we have hitherto persuaded ourselves of the innate, and almost magical, superiority of our English law : so sure of ourselves have we been indeed that all suggestions of the desirability-the urgency even- of the enactment of a written charter of constitutionally- guaranteed rights have been successfully stifled. The extent of the inadequacies of English law in the matter of protecting individual rights and freedoms becomes steadily apparent from a reading of Professor Robertson’s book, and one is left with the gratifying impression that the author would place himself in the forefront of those who currently advocate that the United Kingdom Parliament should bring about the enactment of the Convention itself in statutory form.

Certain critical observations may be made about the work. The date of publication of the book has necessarily meant that many significant cases were at an incomplete stage, and their full and final purport could not be included. Some readers, however, may fail to appreciate that further developments were pending in certain of the cases mentioned, because the author frequently confines himself to a simple statement of the fact that the application was declared admissible by the Commission. So protracted are many of the proceedings under the existing machinery that no author can be blamed for going to press before final judgement was delivered; but he could help his readers by warning them that the dhouement is still being awaited. It is also to be observed that the author, although now retired from the service of the Council of Europe, has not altogether abandoned the diplomatically restrained presentation of controversial issues which was a feature of the first edition of his book. At times, one is still left with the impression that the author’s central experience in the history and fate of the Convention has enabled him to know far more than the ties of confidentiality and discretion will permit him to reveal. Thus, one would relish a more informative account of the reasons why the Convention has not yet undergone the highly desirable amendment which would permit the Court of Human Rights to deliver preliminary rulings upon references from national courts faced with human rights issues, in a way similar to that by which the European Court of Justice is empowered to receive references under Article I 77 EEC. Since the author himself at pp. 231-2, proceeds to argue strongly for the introduction of such a provision, and easily refutes all possible objections which might be opposed to such an innovation, it is curious to find him so reticent in explaining the factors which have

346 JOURNAL OF COMMON MARKET STUDIES precluded this worthwhile step from being taken. To state merely that ‘it may be assumed that this was due to opposition expressed in certain quarters , . .’ is to reveal nothing more than the uninformed reader might have inferred far himself, and rather recalls to mind those enigmatic expressions about ‘a certain foreign power, . .’ which were always to be encountered in spy- fiction stories a few years ago. While the author’s personal commitment to the cause of human rights is unequivocal the somewhat low-profile presentation of his personal reactions to some of the outstanding jurisprudential developments which he relates perhaps operates to deprive them of the fullest impact they might otherwise make upon the mind of the reader. Thus, especially in cases where the Commission and the Court of Human Rights have in recent years displayed a more confident and dynamic approach to the interpretation of the Convention, as in cases such as Amekrune, Gofder, the East Africun Asiam v. UK and Ireland v. UK, it would be valuable to know what Professor Robertson personally thinks of these decisions : were they sound i ; do they meet with his unqualified approval? It was slightly disappointing to find some twenty typographical errors scattered throughout the book. Incidentally, the correct reference to HIlbbardv.Pitt(citedatp. 77)is: “9751 I A1lE.R. 1056. Thecase has since been reported on appeal at [ 19-71] 3 All E.R. I . There are four useful Appendices, containing the texts of the Convention and three of the Protocols together with the state of ratifications up to the end of I 97 5 . In view of the admirable way in which, in the body of his work, Professor Robertson frequently compares and contrasts these provisions with the corresponding texts of the Universal Declaration of Human Rights and the United Nations Covenants, it would have been a valuable bonus if space could have been found to include these also for ease of reference.

In describing the composition and functioning of the Commission and Court of Human Rights, and of the Committee of Ministers in this context, Professor Robertson really comes into his own : he has a wealth of inside experience upon which to draw and he succeeds in conveying the flavour of the workings of these bodies very well indeed. The especially sensitive role which the Commission is required to fulfil must be properly appreciated by anyone who would understand the way in which the Convention operates in practice. During the early years, indeed, the Commission’s task historically was almost one of corporate diplomacy, winning the confidence of the states which were actual or potential parties to the Convention, and to its optional

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provisions relating to the jurisdiction of the Court and the right of individual petition. It is a feat of no little magnitude that has brought about the current state of ratifications and acceptances, but if the watchword has hitherto needed to befestznu Iente, it is perhaps true that some more dynamic and creative attitudes are necessary today. In the concluding chapter of this book, which is essential reading for all those interested in the effective protection of human rights, Professor Robertson indicates some desirable extensions of the Convention, including the right of asylum, and of conscientious objection, the rights of privacy and the rights of minorities, and the resolution of the conflict between the right to unionize and the freedom of the individual not to be obliged to participate in a ‘closed shop’. In these and other areas, the Council of Europe would continue to serve European citizens in particular, and mankind in general, by grasping a few nettles and by pressing the pace of developments beyond the somewhat leisurely fox-trot in which the Western European democracies have engaged during the first twenty-five years of the Council’s existence. The ring of stars, which constitutes the emblem of the Council of Europe, perhaps suggests that the watchword for the next twenty-five years should be : per ardua ad astra.

2. Whilst it is the case that, as mentioned above, the law of the EEC has lately been seen to draw upon the European Convention of Human Rights, future developments under the Convention may owe much to the forceful example of European Community Law. Just as the right of individual petition secured by the European Convention has rendered obsolete (or perhaps obsoles- cent), the ‘classical’ doctrine that only states are the subjects of the Law of Nations, so the EEC Treaty in its turn has established the clearest precedent for the overthrow of that other, formerly- prevalent doctrine of International Law, to wit that international treaties and conventions are not of themselves capable of producing effects within the national legal orders of the states which become parties to them. Thus in those areas where the European Court of Justice has held that the provisions of the Treaty of Rome are directly effective, the consequence has frequently been the enhancement of the remedies available to the individual before his national courts and tribunals to protect various species of rights, particularly of a social or economic nature. Many of these developments are surveyed by the contributors of the ten papers collected and edited by Professor Jacobs under the title ‘European Law and the Individual’. These

348 JOURNAL OF COMMON MARKET STUDIES papers were delivered at the 1975 Ford ‘Workshop’, and in turn provide perspectives upon a variety of ways in which the implementation of the Treaty of Rome has brought about an alteration (sometimes, but by no means always, amounting to an amelioration) of the rights of the individual under the law. With no fewer than eleven authors contributing to the Symposium, it is almost inevitable that there will be a certain amount of overlapping discussion, such as that which occurs between the chapters written by T. C. Hartley and Richard Plender re- spectively. Ea& of these devotes considerable attention to the notoriously intricate problems of the nationality laws of the United Kingdom in their relation to the EEC provisions concerning free movement of workers. Since the term ‘worker’ is invested with a special meaning under Community law, and has to be uniformly respected throughout the EEC (see the Unget Case, 7j/63, [1964] E.C.R. 177) it is essential that there should be a dearly-understood, precisely-formulated definition of the term ‘worker’, so that there can be no doubt about which persons are to qualify for the benefits secured to workers and their families under Community law. Regrettably, the law is far from clear, not least because of the confusion generated by the term ‘nationals of Member States’ when employed in some of the key provisions bearing upon the scope of the term ‘workers’. The extent of the consequential confusion may be judged from a comparison of Dr. Plender’s views expressed at pp. 41-9 with Mr. Hartley’s comments at pp. 24-7 (and at pp. 27-3 3 with regard to the further difficulties created by the United Kingdom Declaration on the meaning it ascribes to the term ‘National’).

Further aspects of the law relating to free movement of workers are considered by Professor Lipstein, who contributes a paper on the conflict of laws aspects of the social security provisions of the EEC. The Community legislation and the concomitant juris- prudence of the Community Court in this field, are extensive, but they suffer from the sort of opacity and technicality of language which seems to accompany far too many of the best-intentioned innovations of Community law. Here, the essence of the matter is simplicity itself: mobility of labour is not genuinely secured, unless the migrating worker can be assured that he or she will not be made to forego social security benefits already acquired, and that while these are maintained during the period spent in the second Member State, the worker will receive non-discriminatory treatment under the law of the latter state in all aspects of social security. The essential purpose of underlying the relevant

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provisions of community law is therefore that the worker will be so treated by the law that he cannot lose, and may in certain cases actually gain, as a consequence of migration between Member States. However, the task of translating this ideal into reality has not been accomplished without the creation of much confusion and uncertainty in the law, as is shown by the high and continuing volume of cases coming before the Court of Justice for the purpose of obtaining an interpretation of the meaning of the same few provisions of Community legislation. The Community is clearly in sore need of its own equivalent to the Renton Report as an aid to improved legislative drafting, although admittedly matters would be still further assisted if the Court were to refrain from expressing its ‘interpretations’ in its own variety of neo- Orwellian ‘Newspeak’. This reviewer has every sympathy with the officials of the social security services of the Nine as they struggle to construe the relevance of the Court’s latest oracular utterance in relation to the circumstances of the client confronting them across the counter.

The next chapter of the book, contributed by P. Leleux, examines some of the recent jurisprudence of the European Court of Justice in the field of free movement of persons and free supply of services. Here, by a series of landmark decisions, the Court has significantly demonstrated its capacity to operate as an instrument of European integration, producing concrete results by judicial decision at a time when political momentum to integration has been wanting. Further aspects of these developments are exam- ined by R. Wagenbaur, who reviews the mutual recognition of qualifications in the EEC, including the effects of the celebrated Rayners Case (t/74, “9741 E.C.R. 63 I). Here, the writer observes that the actual effect of the Court’s judgement is somewhat limited since the sole ground on which M. Rayners was initially refused admission to the Brussels bar was that he had the ‘wrong’ nationality-Dutch instead of Belgian-whereupon the Court was able to declare such a ground of refusal to be contrary to Community law. It is perhaps worth adding that the Court’s decision of June t i , 1974, accepted and applied by the Belgian Conseil d’Etat on March 5 , 1971, was devoid of all practical significance for M. Rayners himself: he had by then already gained admission to the Belgian bar by virtue of the coming into force of bi-lateral arrangements, based on reciprocity, concluded between Belgium and Holland. Nevertheless, the cause cifibre in which he featured has become established as a milestone in Community law: cf. Case 71/76 (Thiefv) and Case 11/77 (Patrick).

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In a most illuminating comparison of American and German federal administrative law with the provisions contained in the Treaty of Rome, Professors Stein and Vining demonstrate the relatively meagre rights of challenge to administrative action conceded to the individual under Community law. In this area, the Court of Justice has failed to emulate its pace-setting achievements in the realms of free movement and the right of establishment, and the authors vividly lay bare the inconsistencies and weak reasoning which abound in the Court’s decisions in cases brought by individuals under Article 173 EEC. The way forward will possibly have to be found by means of amendments to this and other Articles of the Treaty, but it seems clear that such advance must await political developments within the Community, whose force-structures and power-balances are currently antithetical to those encountered in a well-established federal system. At the same time, the Community seems a long way distant from the adoption of some sort of constitutionally-grounded protection for fundamental rights throughout the Community. This, it will be recalled, was one of the main premises upon which the majority of the German Federal Constitutional Court based their notable opposition to the ultimate unquestionability of Community law in the Internutionale Handelsgeseflscbuft Case ([I 9741 2 C.M.L.R. 540). In his perceptive paper, M. Hilf raises doubts whether this decision may be safely dismissed as of merely theoretical, or academic, nuisance value and goes on to indicate the problems which currently beset any attempts by the Community to satisfy the requirements laid down by the German Court as precon- ditional to the withdrawal of their opposition to the assertion of the omnipotence of Community law.

In the final two chapters of the book, Lawrence Collins conducts a typically spirited and perspicacious enquiry into the implications of the first cases decided by courts of the United Kingdom to involve issues of Community law, while Professor Kahn-Freund, invigorating and original as always, analyses the European Social Charter and indicates the manner in which this creation of the Council of Europe, which might at first glance seem like a pale counterpart of the Human Rights Convention, may have the capacity to enhance, and to be enhanced by, the social policy and labour law provisions of the European Community Treaties. In particular, the suggestion is advanced that the Social Charter has the requisite characteristics to enable its provisions to serve as a source of ‘general principles of law’ upon which the European Court of Justice could legitimately draw, in

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the same way as it has already drawn upon the Convention on Human Rights, in its efforts gradually to establish a full range of ‘fundamental rights’ protected by Community law. In sum, therefore, this is a book full of informative and topical contributions, which will set the reader thinking about-and pursuing- number of highly important-and ultimately interrelated-matters. It is a timely and welcome addition to the literature concerning the individual and the law.

3. The Yearbook of the European Convention on Human Rights (which is not to be confused with the ‘European Yearbook’, also published under the auspices of the Council of Europe) constitutes the formal record of the annual achievements under the Convention of Human Rights. Since the first volume (which covered the years 1955-57) this series has been a main source of information about the formal development of the Convention itself and related instruments (documenting the periodical amendments, declarations, ratifications and dero- gations) and also about the work and decisions of the principal organs of the Council of Europe concerned with the Convention on Human Rights, namely the Commission, the Court and the Committee of Ministers. Finally in these volumes there appear periodical reports of the progress of the Convention within the jurisdictions of the different Member States, and biographical and other documentary information. The Yearbooks are published bilingually-in English and French in parallel texts-and thus the effective length of the volumes, for all but the most exceptional reader, becomes but half the advertised number of pages. This fact, allied to the very considerable cost of these handsomely- produced volumes, constitutes an economic disincentive to purchase by the private reader, while there is the further factor that the volumes tend to appear a year or two after the developments to which they relate. Although individual cases under the Convention tend to have a grossly protracted life before the final decision is taken, the incidence of cases has become so heavy (applications tend to number more than 600 a year) that the collective picture is nowadays developing quite rapidly from year to year. Thus, the slow arrival of the volumes of the Yearbook is responsible for one of the two main criticisms which can be made of the volumes themselves, namely that they do not enable the subscriber to keep abreast of current developments in the realm of European Human Rights, for a close perusal of the reported cases and the collected texts contained in the latest volume to be

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received will usually inform him only of what war the state of affairs some two years previously. The second main criticism is that the Yearbook alone is an insufficient record of the year’s developments. Of necessity, only a small selection of the many decisions of the Commission can be included in any detail, while considerations of space necessitate the omission of much of the relevant documentation. A fuller record of the Commission’s decisions is published separately, in a far less elegant and also less tractable format, as ‘Collected Decisions’, while even judgements of the Court of Human Rights appear in the Yearbook only in summarized form. Indeed, the full accounts of the judgements of the Court are actually divided into two further series of special publications, prosaically entitled ‘A’ and ‘B’. Nor does the list of ‘relevant but fragmentary’ publications end here. To be frank, the situation is a highly unsatisfactory one, and must be in large extent responsible for the widespread lack of public awareness of the considerable achievements under the Convention, and for the deplorable degree to which even academic and practising lawyers remain uninformed about this most important body of law. What is surely long overdue, in a Europe within which eighteen states are already bound by the Convention, is a comprehensive and speedy reporting service, which would emerge in different language-editions, and which would contain full reports of all decisions taken at the different possible levels within the Human Rights machinery itself, and in addition would carry a summary of the latest applications filed with the Commission. Ideally, too, these ‘Human Rights Reports’ would contain a section devoted to reports of latest cases in which the Convention had been applied directly by national courts in the Member States. The introduction of such a series of reports, which this reviewer here seriously urges, would by no means obviate the need for a formal record summarizing the year’s main achievements, and hence the Yearbook would continue to have a useful role to play. But it is hoped that enough has been said by now to indicate that the Yearbooks, in their present form, are no substitute for the series of proper reports of which teachers and practitioners of human rights law are now badly in need.

4. If readers of this review are by this stage still unpersuaded of the urgent need for something to be done within the United Kingdom in order to give rise to more effective protection of human rights, the reviewer cannot do better than to refer them to the excellent publication by the Cobden Trust entitled : Civil

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Liberties and a Bill of Rights (1976) in which the authors, Peter Wallington and James McBride, convincingly and moderately argue the case for the enactment of the European Convention in statutory form. As further evidence in support of the claim that some such reform is urgently needed, one has no hesitation in recommending another volume in the same admirable series of Cobden publications : Conspirucy and Cird fiberties by Robert Hazell. Within the compass of IOO pages or so the author exposes the extent to which the law of criminal conspiracy has been employed in recent years in a manner detrimental to the most fundamental of civil libertarian requirements, namely that the scope of application of the criminal law shall be precisely clear, and that offences should not be created retrospectively. Thanks to the conceptual vagaries which were employed by the judiciary throughout a prolonged programme of what was, frankly, judicial legislation, the law of criminal conspiracy became a veritable minefield in which the unwary still tread at their peril. Some of the more extreme aberrations to which the evolving case law gave rise should be cured as a result of the enactment of the Criminal Law Act I 977, enacting parts I and I1 of the Law Commission’s Report on Conspiracy and Criminal Law Reform (Law Com. No. 76) published in March 1976. Indeed, Mr. Hazell’s book is actually the Memorandum which was submitted to the Law Commission by the Cobden Trust and the National Council for Civil Liberties. It therefore serves the reader in a dual capacity, both as a commemoration of the situation which obtained prior to the coming into force of the Act of 1977, and as an aid to the understanding of the ills and mischief which the Act itself is designed to cure. The full extent of the complexities wrought by means of such decisions as Shaw, Kndle? and Kumuru are analysed with a clarity which renders all the more awesome-and inexcusable-the judicial obfuscation which has brought them about. More recent examples of the operation of this branch of the law may be seen in the cases of Withers and Scott, which appear only as footnote references in the present work. Prosecuting authorities had at their disposal a hydra-like armoury of potential grounds for charging criminal conspiracy wherever, and when- ever, they might feel uncertain that a conviction for a substantive offence was capable of being secured. Cases such as Vernier and Bfumires Trunsport Services also show that until the position was expressly rectified by the Act of 1977 possible sentences for conspiracy might in some instances be more severe than the maximum permissible for the substantive offence !

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It remains to be seen whether the Act will eradicate all the evils which Mr. Hazel1 lucidly and compellingly reveals. The book is written in a style remarkable for its combination of clarity and scholarly legal analysis, such as to render the book readable both by the non-specialist and by the trained lawyer (see especially Chapter 3 entitled ‘The Present Law’). It deserves to continue to be read even after the introduction of the reforms for which it successfully pleaded, as a salutary reminder of the less happy achievements of the Common Law in the supposedly enlightened years of the mid-20th century.