Human Rights Research in Finland

between Practical Needs and Theoretical Challenges

Stefan Kirchner
Legal research is not an end in itself but it has to inform those who are called
to make decisions which can affect all of us, through legislation or in the
courtroom, in government or public administration, but also private actors. If
our work as researchers consists in the creation of new knowledge rather than
the creation of more printed paper, we have to be aware of this practical
dimension of our work. Id even go as far as to say that academic research
has to serve the needs of people when it comes to human rights. Not the
needs of the state, not even the needs of the majority, but the needs of the
people - not the people as a community but each and every person who is
potentially affected by human rights violations. Human Rights research has
value if it contributes something, if it raises awareness of issues and if it
challenges us to think about how we deal with one another. That makes it
necessary for lawyers to look beyond law, beyond texts. We need to go out
there to the edges of society and see the challenges for ourselves. If we
believe that human rights are universal then we cannot ignore those who are
marginalized in our society. If we want human rights research to have an
actual impact, we have to go out there and look at the challenges people are
facing. In so far, research has to be practical. As lawyers we need to
understand more than law, we have to make the effort to understand the
technical aspects of the situation of potential victims of human rights
violations. Potential, because it is only such an understand which will enable
us to become aware of human rights violations. This requires us to go to the
fringes of society. Human Rights research is not something that can happen in
only in libraries and with books and databases. It requires the interaction with
those concerned. Human Rights research has to be practical.

At the same time, at least when it comes to European Human Rights Law, we
have reached a point at which we have to think about legal theory again.
Under the European Convention on Human Rights, states have a margin of
appreciation when it comes to implementing the Convention, at least in cases
in which there is no consensus among states parties to the ECHR as to the
interpretation of a norm. At least, this was the situation until about a month
and a half ago. The term consensus in this context was not meant to refer to
a perfect consensus of all member states except the respondent, but it was
understood that a near consensus was enough for a few states to be forced to
get in line with the mainstream interpretation. This view has been criticized
before because human rights law also has the purpose of protecting
minorities or individuals against the power of the community. The European
Convention on Human Rights is based on the premise of operating in
democratic societies. In a democratic society, the majority rules and human
rights provide a tool against excesses, even if they are based on democratic
decisions. Despite this criticism, the European Court of Human Rights has
gone one step further. Rather than requiring a near consensus in order to bind
states which oppose the mainstream interpretation of norms, it now has held
Oliari and others v. Italy that a simple majority of the states which are parties
to the European Convention on Human Rights is enough. If 24 states adhere
to a specific interpretation of the Convention, the remaining 23 will have to get
in line. This will reduce the margin of appreciation but it also raises new
questions, first of all, why the Court chose this approach. There was no need
for the Court to do so, in the matter itself there are solid arguments , such as
the long tradition of the wide interpretation of the right to private life under
Article 8 ECHR, which could have led to the same result without taking such a
radical step. But it makes a difference if the Court engages in the kind of
scholarly legal reasoning which it has employed in many cases, or if the Court
yields to the interpretation of the majority of the states which have ratified the
Convention.

If the latter becomes the yardstick, the Court might in the future become more
likely to engage in some kind of comparative legal research of the national
laws. This would mean a significant loss for European Human Rights Law as
an academic discipline. Maybe academia could compensate such a loss, if
the Court would become more open to referring to academic publications in its
case law. But the more important issue is that the relationship between
democracy and human rights needs to be clarified again because the Court
has introduced a new kind of democratic element into the interpretation of the
Convention. Essentially, the European Court of Human Rights has made
European Human Rights Law more democratic but also less academic, more
politically acceptable (at least for those states which happen to share its view
in case in which it might employ the same model again) but also more federal.
But that was never the deal. When states ratified the ECHR, they did not
expect to have to take into account not just being confronted with but actually
being bound by other states interpretations of the Convention. The potential
for confrontation might be an inherent feature of the relationship between
parties to an international treaty. Being bound by the majority view is a feature
of supranational rather than international law. There are a number of
international legal frameworks which allow for decisions by majorities, for
example in the context of the International Civil Aviation Organization or
ICAO, or qualified majorities, like in the case the Security Council of the
United Nations (in terms of representation the UN General Assembly would be
a better example but of course its resolutions are not legally binding). What
such systems have in common is that the states which participate in general
agreed on the possibility of a majority decision with which they would not
agree but which they would have to implement anyway. The parties to the
ECHR never agreed to such a system and indeed the Court did not base its
decision in Oliari on any kind of formal system within the Council of Europe
but at its comparative law research of the legal situation in the 47 member
states. The Court has introduced a democratic element into the equation, but
not one based on population but one based on the number of states. This

means that a relatively small number of people could in theory join forces to
dominate the interpretation of the Convention. If you look at the 24 states
parties which have the smallest population, you will notice that you end up
with Finland. Of the 46 other member states, 23 have a larger, 23 have a
smaller population than Finland. Finland plus all states parties to the ECHR
which have a population smaller than that of Finland form a sufficient majority.
These states represent 57 of the 820 million people who are citizens of the
states parties to the Convention, the number of persons protected is even
higher. But the focus on the number of parties rather than the population is the
only way the Court could take, once it had decided to take this course: the
obligation a state has under the Convention is one which is owed to the
holders of human rights but also to the other states which are parties to the
same international treaty. The inter-state procedure under Article .. of the
European Convention on Human Rights is an important reminder of that.
What the Court might have created is a pan-European polity. With a stroke of
the pen, or rather, with a few keystrokes, the European Court of Human
Rights has identified a European-Super-Society, the polity of polities.
This Super-Society is not becoming an actor in its own right, rather, the
approach used in Oliari shows that what has long been said about the
Convention is actually true, that is, the national level is where the important
work actually happens. The ECHR matters far beyond the walls of a
courtroom in Strasbourg. Change in the interpretation of the Convention
begins on the local level. At least as far as the ECHR is concerned, this make
the the multidimensionality of human rights more important than ever before.
Local lawyers have to be familiar with the ECHR and with European human
rights discourse. If the local or national level affects the regional or European
level, then the work of lawyers on the national level can have a massive
influence on the interpretation of the Convention as a whole. This makes it
necessary that research matters locally for practitioners, not only for the
academic community. European human rights law has to have a place in the

national legal discourse. Human Rights researchers can make valuable

contributions in this regard.