In celebration of the European Convention on Human Rights on the occasion of its 75^th anniversary, this essay highlights its contribution to European society as stated in Article 2 TEU. My contribution conceptualizes 73 years of European integration and the Europeanization of national societies. To be sure, this European society’s main framework is the EU, not the Council of Europe. Indeed, when the Convention refers to “society” (e.g. in Article 8), it only refers to national societies, the EU’s accession pending. And yet, in a surprising twist of its Preamble’s ‘greater unity between its members’, the Convention, as operationalized by the Strasbourg institutions, above all the European Court of Human Rights, has played and continues to play a surprising, indeed significant, role for Article 2 TEU’s European society.

This essay sketches this significance in four steps. The first shows the ECHR’s significance for the choice expressed in Article 2 TEU: the authors of the Treaties base the Union on human, and not fundamental rights, thus defining European society’s constitutional core with the Convention and linking it with wider Europe. The second step highlights that the Convention provides European society with a general structure of rights, a feature foreclosed to the EU Charter of Fundamental Rights. The third step outlines how the Convention supports a culture of justification that helps European society to be democratic. The fourth speculates on how to evolve the Convention so that its significance will be celebrated again at its 100th anniversary.

Human, not fundamental rights: quite a difference

Article 2 TEU characterizes European society by respect for human, not for fundamental rights. This makes a difference, because these are different guarantees, hailing from different legal sources. Fundamental rights are laid down in a polity’s fundamental compact (see the Charter of Fundamental Rights of the European Union). Human rights (ever since the Universal Declaration of Human Rights) are, by contrast, mostly conceived as international guarantees that are not polity-specific. The Convention rights are the most significant for European society, given the Convention’s institutions, its case law, and its embedding in national legal orders. EU law shows this in Article 6 TEU, or Articles 52 and 53 CFR.

Article 2 TEU defines the identity of the European legal order. Convention rights, and not EU fundamental rights, define this identity and form part of the Union’s constitutional core. Of course, this cannot cover every aspect of Strasbourg’s jurisprudence, but certainly the essence and the gist of those rights. Thus, the EU feeds on Strasbourg’s normative credibility. This is significant for the lingering suspicion that the EU’s fundamental rights come with a functionalist bias for advancing market integration; a suspicion the Strasbourg jurisprudence has never faced.

The commitment to human rights marks a stark difference between European society and other continent-sized societies. None of these is similarly committed, though fairness demands that we recognize the Brazilian Supreme Court’s recent opening to the American Convention on Human Rights (see here, and here). It is also the TEU’s most tangible aspect of its professed global constitutionalism (Article 3 para. 5 TEU and Article 21 TEU). Whereas much of this is reconsidered today for unexpected geopolitical tensions, the role of the Convention stands firm for European society as organized by the EU, notwithstanding critique from some governments for some lines of jurisprudence. Such commitment makes a difference, as other European societies have shown, be it the British or the Swiss.

The Convention’s foundational role links the EU-centered European society at its deepest normative layer with the Europe beyond EU borders. This responds productively to the fuzziness of the term European society. At first glance, conceptualizing EU society as European society recalls the hubris of US society as the American society. Yet, EU society is far more open to the wider Europe, demonstrated by its embedding within the Council of Europe that is far deeper than that of US society within the Organization of American States.

This foundational link mirrors the identity of most European citizens. Being an EU citizen has become important to the great majority. At the same time, most will recognize that people like Dmitri Shostakovich, Emir Kusturica, or Eurovision Song Contest artists from Iceland, Switzerland or Ukraine are Europeans, too. The Convention’s human rights are European society’s most important legal link to the normativity of that wider group. This transnational and, in the end, universalist outlook is significant as it helps against rampant nationalism.

Only the Convention provides a common structure

Law plays a foundational role for any developed society, ubi societas, ibi ius. A society takes a common framework that structures the interactions of its members, groups, and institutions. Since 1789, it is expected that this includes a common set of basic rights. The Convention is significant for European society as it provides such a set, whereas the EU Charter of Fundamental Rights does not. The latter’s non-generality is one of its key features. If it were for EU law only, there would be no general set of rights that applies throughout European society. Gladly, there is the European Convention, and, gladly, the ECJ’s jurisprudence on Article 2 TEU underpins the Convention’s significance when push comes to shove.

A society requires continuous interaction and communication. Strasbourg judgments circulate through courts, ministries, bar associations, universities, and civil society organizations. Today, there is a European community of practice of human rights, a network of legal actors who recognize one another as partners in a common conversation over a basic structure of society. Any Strasbourg decision is just one step in a social process that relates many people over many years, not least for its discussion on Verfassungsblog.

The Convention’s general legal structure contributes to European society as it enables a common discourse in all corners of this heterogeneous society with diverse constitutional traditions of its various peoples. The Convention contributes a common language of rights that is spoken in different tongues. Terms such as “degrading treatment”, “private life”, “effective control”, “living instrument”, “proportionality”, but also “margin of appreciation” are part of juridical, political, even common speech throughout Europe.

Over time, its doctrines have been internalized, contributing to a common legal consciousness, notwithstanding sharp, even foundational disagreements. Indeed, it is for such disagreements that the Convention is a true social structure, proving that conflicts can integrate a society. To use a bit of hyperbole, but this is an anniversary address, one might say that the Convention has taught Europeans to quarrel in the same key. That is indeed a significant contribution to European society.

The European Court of Human Rights has continuously balanced the universality of Convention rights with a respect for the diversity of the State Parties. Procedurally, this is reflected in the prerequisite that the judge of the State concerned forms part of the bench, and materially, it is visible in doctrines such as the “margin of appreciation”. A judicial spirit of restrained harmonization pervades the Court’s decisions. This approach resonates with European Society: a society that rests on plurality and builds a common future on diverse traditions.

Of course, the Convention’s structure is only one among the many of European society. If one reads European society with Bourdieu as a set of different social fields (and subfields), nobody will argue that the Convention’s field is domineering. Most will agree that the fields defined by the Brussels institutions or the internal market are more powerful, while the ones defined by the European Song Contest or European Champions League are more visible. The same is true for the law that underwrites these fields. And yet, the Convention’s significance for European society is hard to deny, not least for its contribution to its democratic credentials.

Making European society democratic

No other characteristic of European society is as contentious as its democratic nature. Here, I see the Convention’s greatest contribution, reconceptualizing the achievements already outlined. Of course, the Convention does not make European society democratic because it provides for a demos, or for an elected body, or for institutions of political mediation. What it does is to guarantee democratic rights, such as the freedom of expression, the freedom of assembly, or the right to vote. And it provides a European forum for the key question of “what a democratic society is”, to decide then what is “necessary in a democratic society”. To resort to hyperbole once again: the Strasbourg court room is a public space of European society’s self-reflection on its democracy.

In a democratic society, public authority is never absolute. Democracy begins where authority ceases to be self-legitimating and contestation becomes legitimate, indeed foundational. For human rights, every exercise of authority comes with the burden of being justified to those over whom it is exercised. This was particularly alien to the German authoritarian tradition and became key to American reeducation after World War Two. The Convention has unfolded that principle and enshrined it into institutional practice throughout European society.

It is for the Strasbourg system that any exercise of public authority that affects any member of European society must be justified with reasons that can be contested before an independent and impartial court. This is why individuals can meaningfully confront the state, why victims have institutions to turn to, why governments have no choice whether to respond to reasoned criticism. This principle extends democracy beyond the ballot box, embedding it in the everyday fabric of society. It creates a culture that binds together diverse nations through the experience of shared arguments. It reminds us that the actuality of democracy is nothing but its practice throughout society. This is all the more important as this practice is under strain.

Of course, constitutional courts have advanced such democratization in some national societies, such as Germany, Italy, or Hungary with its Court under László Sólyom. But it was the Convention system that brought it to all corners of European society. Today, it underwrites, in cooperation with Article 2 TEU, its culture of justification. This would be significant at all times, but it is particularly so in times of strongmen who purport democracy to be the uncompromising imposition of the one will of the one people.

The ECHR and European society in 2050: towards a closer relationship

A celebration often suggests ideas about what should come next. In this vein, this essay portrays two paths that could help celebrate the Convention’s role for European society again at its 100th anniversary in 2050. Both are paths towards a closer relationship: one with society at large, the other with EU institutions.

More links with society

The Convention’s role in European society is deeply enshrined, but subject to backlash. There is even rhetoric that casts the Court’s jurisprudence as an elitist imposition. Bureaucratic habits risk supporting that caricature. The remedy, however, is not less engagement but more: more openness, more listening, more dialogue with European society at large.

Latin American constitutionalism offers a valuable lesson. The Inter-American Court of Human Rights, operating in an even more difficult context, sustains its legitimacy by presenting itself as close to the societies it serves. It provides victims with a day in court, eye to eye with their governments, travels the region to hold public sessions on typical cases with huge audiences, listens by taking amicus briefs seriously, and develops a case law that supports the human rights practice on the ground (for an example, see here). All this embeds the American Convention in society. True, the Strasbourg court welcomes 20.000 visitors a year. But it could do more to present itself as part of European society, rather than being tucked away in a difficult to reach, provincial city.

No doubt, developing such links is a huge challenge. The Court has to respect, and to be seen to respect, its judicial role. Then there are its financial constraints and huge docket. Moreover, it must consider that many societies have become very polarized, and polarization might increase with a visible jurisprudence. To find a viable path requires much judgment, wisdom, from the judges, a capacity the Parliamentary Assembly should assess. The American example shows that there are paths available once the importance of such links is understood.

The judges themselves could also improve the Court’s links to European society. Many observers describe the ECtHR as overly dominated by its Registry, with judges struggling to imprint their voice on the decisions (but see here, Chapter 2). As opposed to the CJEU, drafts at the Court are written by registry lawyers who are not selected (and cannot be dismissed) by the judges. What began as a safeguard of coherence may now limit, even harm it. A Court more centered on its judges, each elected by the Parliamentary Assembly and representing a national tradition, might better embody its links of European society. Such reforms are not technicalities: the ECHR’s authority depends on its resonance across cultures.

The Court could also deepen its dialogue with academia. The Convention system could take inspiration from the Fédération internationale pour le droit européen, where EU judges, institutional lawyers and academics regularly meet. Both sides are set to gain: scholarship provides the conceptual resources for judicial creativity; judicial experience grounds scholarly imagination. The early founders of the human-rights movement understood this. The Institut René Cassin in Strasbourg was meant to connect jurisprudence with intellectual life that originates in society.

More joining of forces

Many European citizens – including politicians, journalists and even some lawyers – confuse the Council of Europe and the European Union, the Convention and the EU Treaties, the Strasbourg and the Luxembourg Court. There is evidence that dissatisfaction with the Strasbourg Court led some people to vote for Brexit. Yet those who laugh at this confusion overlook a deeper truth that shines through it: both regimes strive for a democratic Europe at peace. They share a common, though differentiated, responsibility, and should evolve accordingly.

The two regimes pursue complementary mandates in shaping European society (see 2., 3., and 4.). The Convention aims at human rights for all in the wider Europe, while the EU aims at evolving public authority for those peoples who form one society. To resort to hyperbole once again: Strasbourg’s jurisprudence has given that society its normative texture, EU law its institutional shape.

Alas, the relationship has been fraught. For a long time, they seemed to coexist rather than cooperate. With the entry into force of the Charter of Fundamental Rights, the Luxembourg Court began to develop its own body of fundamental rights jurisprudence, which threatened to marginalize the ECtHR. When the CJEU again blocked the EU’s accession to the ECHR, this was widely interpreted as a hostile move (see here, but see also here). Luckily, this is being repaired, both by the CJEU’s jurisprudence and by the EU’s likely accession to Convention (see here and here). The Convention will be formally embedded in EU law, and European society will be formally considered as one society under the Convention.

In this ongoing rapprochement, all dimensions of cooperation between the two regimes should be recalibrated and deepened – both for the benefit of European society, the focus of this essay, and for the wider Europe as well. This would be significant at all times. Today, this is even more so for the antagonists of the constitutionalism enshrined in the Convention and underwritten by Article 2 TEU. With some adjustment, the Convention might further grow in significance: as a constitutional instrument for the wider Europe and as part of the constitutional core of European society.