A People's History of the European Court of Human Rights

By Michael D. Goldhaber | Go to book overview

CHAPTER 17
Human Rights in Europe
and America

The field of European human rights was pioneered by a handful of lawyers who studied American law during the civil rights era. The grand irony is that they brought home the innovations of the Warren Court, only to find a generation later that they bear the torch of civil liberties alone.

The barristers David Pannick and Lord Anthony Lester have aptly called the European Court of Human Rights before 1966 “a sleeping beauty.” The crucial event that year was the United Kingdom's acceptance of the right of individuals to petition Strasbourg. Individual plaintiffs are a driving force for change in law, because state plaintiffs, as repeat players and guardians of the establishment, are inherently cautious. In the United Kingdom, the power of individual chutzpah was harnessed to a large, talented, and imaginative army of attorneys. Crucially, the UK recognized the right of individual petition at a moment when its lawyers were soaked in the liberating currents of American legal culture. If the court was a sleeping beauty, it was roused by English and Irish barristers who were selfconsciously influenced by the American civil rights movement.

In 1968, Lester, who had studied at Yale Law School, enlisted the help of Yale's Professor Charles Black, in what's known as the “East African Asians case.” The case was brought on behalf of Indian families that were kicked out of Kenya, Tanzania, and Uganda after independence and were then, despite holding British citizenship, barred by legislation from migrating to Britain. In 1973, Lester and Black persuaded the European Commission on Human Rights that, in extreme cases, racism could amount to inhuman and degrading treatment in violation of European Convention Article 3. In support, they cited a raft of American landmarks, including Trop v. Dulles and the dissent in Plessy v. Ferguson.

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