The European Convention of Human Rights’ Colonial Clause and the End of Empire

The European Convention of Human Rights (ECHR) is arguably the foremost human rights legal instrument applicable in the Netherlands and in Europe. In the last 20 years, the extra-territorial jurisdiction of the Convention has been invoked by individuals far beyond European borders. Saddam Hussein for instance unsuccessfully lodged a complaint against his treatment by the coalition forces in Iraq, claiming that he was “under the jurisdiction” of parties to the convention. However, discussions about the extraterritorial dimensions of the ECHR are far from new. In this post, I would like to shed light on an important, yet generally overlooked aspect of the Convention, namely that it was drafted at a time when many of the member states of the Council of Europe were still important colonial powers. While European empires in Asia were in decline and the Netherlands was in the process of withdrawing from Indonesia, this was not the case in what was then called New Guinea, Surinam or the Antilles. Colonial empires in Africa, for their part, were still well established and the question of the territorial application of the Convention was hotly debated in the drafting process. What were the implications of this link between human rights and empire?

This intervention addresses the tension within the Council of Europe between the coexistence of ‘European’ ideals of democracy and human rights on the one side and colonial domination on the other by situating the European Convention in a colonial context and discussing the introduction of the ‘colonial clause’. When the Council of Europe and its Consultative Assembly were founded, high hopes were attached to them. The Assembly was described as ‘the conscience of Europe’. It became a venue where a wide range of topics was discussed and where relations with overseas territories were an important subject.

Drafting the European Convention in a World of Empires

The creation of the Council of Europe was marked by diverging views championed by different groups. These differences were also reflected in different institutions. On the one side, a more progressive civil society strand represented by the Assembly championed more progressive views, which also meant extending human rights overseas, while on the other a more traditional Realpolitik-strand represented by the Council of Ministers defended a much more limited approach. As the name suggests, the Council of Ministers represented the governments of Member States. The Assembly consisted of national parliamentarians. Including substitutes, there were almost 200 delegates, four of which represented (French) Africa. The African delegates were Leopold Senghor, future president of Senegal, Ousmane Diop-Socé, Raphaël Saller and Jean Silvandre. Senghor never ceased to stress the importance of sending overseas delegates to the Council of Europe, both in a French and a European context.

The European Convention was an important instance where these overseas delegates showed the contradiction in terms of a human rights convention with a territorial applicability geographically limited to the Member States’ territories in Europe. One of the issues strongly debated in the months leading up to the Convention’s signature in November 1950 was the so-called colonial clause. In the draft Convention proposed by the European Movement of July 1949, the Convention would apply to all territories, but the political rights would be limited to the metropoles. In the Legal Committee of the Assembly, a similar construction was proposed, which the Assembly agreed to in September 1949. For Belgium, which ruled over the Congo, this wording went too far and the Belgian Representative pointed out a few months later that ‘due account should be taken of local circumstances’. This suggestion potentially limited the application of the Convention substantially (and possibly arbitrarily). By June 1950, almost a year into the process and four months before signing, the UK introduced a ‘traditional’ colonial clause in the Committee of Senior Officials and threatened with a very lengthy ratification process if it was not accepted. The British argued that this was a consequence of the development of self-government of the colonies. This clause would make the Convention applicable in the metropoles only, and states could opt in to have it apply overseas, rather than have the convention apply overseas and a possible opt in for political rights. Italy, which by then had lost its colonies, disagreed with the British proposal and argued that the Convention should be extended as far as possible. The Netherlands, which was not tremendously active in the debates on the Convention, was also in favour of a more liberal wording, but objected against the phrase ‘if necessary we will take steps to obtain consent from overseas authorities.’ From the discussion amongst the senior officials representing governments, the debate moved to the Legal Committee of the Assembly, a majority of which preferred the original more liberal solution and not the British clause.

In August 1950 it went back to the state level with the Committee of Ministers. While the Irish agreed with the Assembly that the most liberal option should be adopted, the Belgians preferred the ‘usual’ clause that Britain had proposed. By then, the Dutch had changed their opinion and supported the British clause as well. The reason they gave was that for constitutional reasons, the more liberal option was problematic and would cause problems of interpretation.

Britain and the Netherlands reiterated that they would only be able to ratify the Convention if this clause was adopted. Britain proposed a compromise by combing parts of both phrasings. They suggested to add the first section of the more liberal clause to their own proposal. However, by adding a line allowing states to choose to apply the convention overseas (or not) and “with due regard to local circumstances”, the clause in fact became even more restrictive for overseas territories. This solution was not unwelcome to the majority of the Council of Ministers and they agreed to this phrasing.

This was not the end of the debate, however, as the Assembly did not agree. Whilst a number of European delegates also pushed these points, particularly Lannung of Norway and Persisco of Italy, the debate was carried by the African delegates Silvandre and Senghor. Silvandre first showed the incompatibility of the colonial clause with the French constitution and European ideals. Senghor then proposed to delete the clause. He used several arguments including references to the colonial pact, comparisons to the Declaration of the Rights of Man of 1789, the UN Universal Declaration and the Declaration of American States — none of which contained restrictive clauses — as well as comments about Communism and geopolitical considerations about Europe’s position in the world. The clause was scrapped by 46 votes to 37. This would mean that the Convention would apply overseas as well. However, showing the tension referred to above between progressive and more traditional strands, the Committee of Ministers ignored the decision by the Consultative Assembly, showing a victory for Realpolitik. The final article read:

Art. 63.

1. Any state could declare that the Convention extended to all or some of the overseas territories.

(…)

4. and if so that it would be applied with ‘due regard, however, to local circumstances’.

The Impact of the Colonial Clause on the Applicability of the European Convention

 What did this colonial clause mean for the protection of human rights overseas? It depends which empire we examine. In spite of the fact that the African delegates represented France and that the French metropolitan delegates also supported the application of the convention overseas, this was long a moot point since France did not even ratify the Convention for the metropole until 1974. Belgium never extended the Convention overseas. Britain took some time to extend the Convention overseas, but by and large it did. Britain was actually one of the first states to be brought before the Court in the cases brought by Greece over the situation in Cyprus, then still a crown colony.

As regards the Dutch empire, the Netherlands extended the Convention to Suriname and the Antilles in 1954. However, the individual right to petition the Commission was only declared applicable in the metropolitan Netherlands in 1957. The initial fears of the Dutch were unwarranted: there was no deluge of cases and because of the direct effect of international law in Dutch law, Dutch courts would have to apply the Convention anyway. In both 1954 and 1957 Dutch ministers stated that the governments of Suriname and the Antilles refused to have the individual right to petition apply there. In the end, this right was granted to Surinam in 1964 and to the Antilles in 1974.

Conclusion

In sum, while the narrative of the creation of the ECHR in the period after World War II often recounts ideas of democracy, human rights and the start of European cooperation, this view needs to be nuanced. Yes, these developments did take place, but initially all colonial powers made reservations about applying human rights overseas. Ironically, the state that was the most reluctant to extend the Convention overseas, Britain, was also the state that extended it the most and that was the first to be held to account over its actions overseas.