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When the national courts fail

  • Published at 07:15 pm April 11th, 2017
  • Last updated at 07:25 pm April 11th, 2017
When the national courts fail

The recent crises of the European Union, be it Brexit or the turmoil in Greece, has overshadowed the success of modern European regionalism.

The EU is certainly a bastion of liberal democratic human rights. But the EU was created as an economic project of coal and steel producing nations in 1951.

It was the European Convention on Human Rights (ECHR) enacted by the Council of Europe in 1950, which laid the basis of the modern European democratic state.

The convention calls for the prohibition of torture, the prohibition of slavery and forced labour, the right to a fair trial, freedom of thought, conscience, and religion, freedom of expression, freedom of assembly and association, the right to marry, the prohibition of discrimination, and the regulation of derogation.

The European Court of Human Rights (ECtHR) was set up in 1959 to enforce and protect the convention. The judiciaries of all member countries are subordinate to the regional court. This means that if all legal avenues are exhausted within a member state, the case may be considered for a hearing or be appealed in the ECtHR, which delivers the final verdict in line with the convention.

Both individuals and governments are entitled to take a case to the ECtHR, which is based in Strasbourg in northeastern France.

When the convention came into force, the European continent was reeling from the devastation of the world war brought on by the rise of fascism. Tyranny continued to exist in many parts of the continent until the late 20th century, including in countries of the Eastern European Iron Curtain, Francoist Spain, Salazarist Portugal, and the Greek military junta state. European colonialism only ended in 1999 with the handover of Macau from Portugal to China.

History has shown that ensuring human rights and democratic freedoms provide dividends of peace, stability, and prosperity

Today, most European countries are either full or flawed democracies according to the Economist Intelligence Unit.

The successful transition of these countries is in large part due to the enforcement and protection guaranteed by the ECHR and the ECtHR.

Britain was a founding member of the convention. In fact, the values of the Commonwealth, of which modern Bangladesh is now a member, influenced the development of the ECHR.

In 1998, the British parliament introduced the Human Rights Act, which has sought to enforce convention rights in all domestic courts.

The legislation has been vital in strengthening the British judiciary, helping it keep a check on the government and the private sector. A British Bill of Rights based on the convention has also been considered by the current ruling Conservative Party.

Although Prime Minister Theresa May attempted to politicise the convention prior to the Brexit referendum, she later backtracked as there remains a strong parliamentary consensus on the ECHR.

As a republic modelled on the Westminster system, Bangladesh has much to learn from the British experience in enforcing human rights treaties.

But we should go further. A regional court of final appeal should be available for citizens when national courts fail to uphold human rights.

Asia is home to many of the world’s burgeoning democracies and emerging economies. History has shown that ensuring human rights and democratic freedoms provide dividends of peace, stability, and prosperity.

A common human rights regime, like a common market, can ensure regional integration. As the saying goes, democracies don’t go to war.

Given the history of regional leadership by Bangladesh, our civil society and political class should strive to take the regional agenda to the next level.

Umran Chowdhury is a law student in the University of London International Program.