Abuse of Human Rights

Abstract

When a collection of essays by Joseph Goebbels was published in the mid 1930ies, the introduction to the chapter on democracy infamously stated that: “[f]orever it will be among the best jokes about democracy that it provided the means to its own destruction to its mortal enemies.” Against the backdrop of this sardonic conclusion, modern human rights law seemed unwilling to accept the joke any longer. Based on conceptions of “militant democracy” developed by Karl Loewenstein, “Abuse-Clauses” like Art 5 ICCPR and Art 17 ECHR ensure that “nothing in [a human rights] Covenant may be interpreted as implying for any […] group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for”. The ECtHR, in particular, has created a comprehensive (even if diverse) body of case law denying protection to those who want to overcome the reinforcements of democracy by (ab)using liberty as a Trojan Horse. Sometimes, however, as critics argue, the Court may push beyond “the general purpose of Article 17 […] to prevent totalitarian groups from exploiting in their own interests the principles enunciated by the Convention”; refusing from the outset to grant human rights protection to phenomena which rather are to be considered disturbing, foolish or simply wrong than abusive. This paper intends to take a closer look at the slippery slope of how much liberty is to be granted to the enemies of liberty by analyzing the structure of abuse clauses, examining their application and assessing the danger attached to their frequent invocation.

Keywords: Abuse, Human Rights, Militant Democracy