The prohibition to abuse one's human rights: A theory

• Published date: 01 November 2019
• Author: Ulrich Wagrandl
• DOI: http://doi.org/10.1111/eulj.12349
• Date: 01 November 2019

ORIGINAL ARTICLE

The prohibition to abuse one's human rights: A

theory

Ulrich Wagrandl

*

Abstract

Supporters of communism, national socialism and radical Islamism, but also people who incite racial

hatred or deny the Holocaust, see their rights severely curtailed by the abuse clause of Article 17 of

the European Convention on Human Rights. To make sense of this provision, this paper first intro-

duces the distinction between abusable and non-abusable rights in order to delimit the scope of

Article 17. Then, this paper suggests a “test”to spot instances of abuse of human rights by borrow-

ing the concept of performative self-contradiction from speech act theory. Article 17 is

reconceptualised as dealing with conduct that self-contradictorily uses rights but simultaneously

denies their very idea. In this way, it becomes possible to make sense of and to unify the disparate

case law that Article 17 has generated so far: it equally targets political human rights abuse,

attacking liberal democracy in general; and exclusionary human rights abuse, attacking the rights of

other people.

1|INTRODUCTION

1.1 |The puzzle of human rights abuse

Imagine people rallying in the streets, joining a march against the freedom of assembly. Or imagine a newspaper edi-

torial, arguing for the abolition of the freedom of the press. Or imagine someone giving a speech, demanding to elim-

inate freedom of speech. These are instances of human rights abuse: Using one's rights to attack those very rights.

1

Of course, apart from some cases, most people in these circumstances do not want to take away their own rights.

Rather, what they seek is to take away the rights of others. White supremacists assembling to block an anti-racist

rally, TV hosts calling for the closure of other media outlets, or students debating whether some speech should be

outlawed on campus.

Interestingly, many international human rights instruments seem to have considered this possibility. This paper

will deal with one of them, the European Convention on Human Rights (ECHR) and its so-called ‘abuse clause’in

Article 17. It reads:

*Constitutional Court of Austria, Austria.

1

A note on terminology: Throughout the text, “human rights abuse”means to turn human rights against themselves. It does not designate the violation of

human rights, in which sense “human rights abuse”is also frequently used.

Received: 29 November 2018 Revised: 28 September 2019 Accepted: 11 October 2019

DOI: 10.1111/eulj.12349

Eur Law J. 2019;25:577–592. wileyonlinelibrary.com/journal/eulj © 2019 John Wiley & Sons Ltd. 577

Nothing in this Convention may be interpreted as implying for any State, 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

set forth herein or at their limitation to a greater extent than is provided for in the Convention.

Similar provisions can be found in Article 30 of the Universal Declaration of Human Rights, Article 5 §1 of the Inter-

national Covenant on Civil and Political Rights, Article 29 (a) of the American Convention on Human Rights, and most

recently, in Article 54 of the EU Charter of Fundamental Rights. Rather underexposed, these provisions nonetheless

represent an international consensus that the abuse of human rights shall not be protected.

This paper endeavours to offer a theory of abuse clauses such as Article 17. To make sense of them, I propose

to understand human rights abuse as a form of performative self-contradiction, as we know it from speech act theory.

This captures the specific inconsistency that puzzles us when someone uses their rights to do away with these very

rights. This approach will shed new light on old case law and help to bring some system into the widespread cases

the Court must deal with in this respect. In drawing on the notion of performative self-contradiction, this paper sug-

gests a specific “test”to spot instances of human rights abuse. This test shall then be put to practice by reviewing rel-

evant case law. It will turn out that the Commission and the Court implicitly used a similar approach all along and

examined whether a specific conduct was in contradiction with the values of the Convention. I claim, however, that

Article 17 does not target mere contradiction, but self-contradiction. This will allow us to group the case law into two

categories, according to what they attack: political human rights abuse seeks to do away with liberal democracy while

claiming its protections; exclusionary human rights abuse tries to shut some people out of the equal protection of

human rights. The first kind may be said to attack freedom, and manifests itself in antidemocratic or illiberal political

parties, of which the Court has seen quite a few, ranging from communism, over national socialism, to radical Islam-

ism. The second kind of abuse attacks equality. It does not have the political goal to abandon liberal democracy, but

to disenfranchise other people. Hence it presents itself as hate speech or Holocaust denial.

In the following, a close reading of Article 17 will, for the time being, focus purely on its wording and leave out

the case law. Then, the notion of performative self-contradiction will be introduced to help identify instances of

abuse. So equipped, we will finally turn to case law and put these theoretical insights to practical use. The doctrinal

classification of Article 17 will be left open, though.

2

To assess whether it should be applied to limit the scope of a

given right,

3

or only as a further reason for justified interference,

4

because this is said to be more deliberate,

5

is not

the point of this investigation. It has no bearing on the correct understanding of the concept of abuse of human

rights and generally does not change the outcome of a case.

6

The Court, expectably, follows both approaches. I want

to avoid the debate around the correct classification of Article 17, as this has already received much scholarly atten-

tion. For the purposes of this article, I claim that the performative self-contradiction test can be applied either way. It

should therefore be seen as the minimum threshold, not as the single criterion, that a case must show in order to

bring Article 17 in.

2

For the difference between the “non-application”and the “justification”model of applying Article 17, see M. Hong, ‘Hassrede und extremistische

Meinungsäußerungen in der Rechtsprechung des EGMR und nach dem Wunsiedel-Beschluss des BverfG’(2010) 70 Zeitschrift für ausländisches öffentliches

Recht und Völkerrecht, 73, 76, 125.

3

As some authors assume, e.g. J.-F. Flauss, ‘L'abus de droit dans le cadre de la Convention européenne des droits de l'homme’(1992) 4 Revue universelle des

droits de l'homme, 461, 464; S. van Drooghenbroeck, ‘L'article 17 de la Convention européenne des droits de l'homme est-il indispensable?’(2001) Revue

trimestrielle des droits de l'homme, 541, 564.

4

See, generally, A.K. Struth, Hassrede und Freiheit der Meinungsäußerung (Springer, 2019) and e.g., C. Grabenwarter and K. Pabel, Europäische

Menschenrechtskonvention (C.H. Beck, 6th edn, 2016), §23 no. 4–5; T. Marauhn and K. Merhof, ‘Grundrechtseingriff und Schranken’, in O. Dörr, R. Grote

and T. Marauhn (eds.), EMRK/GG. Konkordanzkommentar zum europäischen und deutschen Grundrechtsschutz (Mohr Siebeck, 2nd edn, 2013), 374–375; or,

concerning Article 54 of the EU Charter of Fundamental Rights (with essentially the same wording as Article 17), H. Jarass, Charta der Grundrechte der

Europäischen Union (C.H. Beck, 3rd edn. 2016), Article 54, no. 2–3; M. Borowsky, ‘Artikel 54’, in J. Meyer (ed.), Charta der Grundrechte der Europäischen

Union (Nomos, 3rd edn, 2011), no. 12.

5

See, e.g., H. Cannie and D. Voorhoof, ‘The Abuse Clause and Freedom of Expression in the European Convention of Human Rights: An Added Value for

Democracy and Human Rights Protection?’(2011) 29 Netherlands Quarterly of Human Rights, 54, 69–70; P. Lobba, ‘Holocaust Denial before the European

Court of Human Rights: Evolution of an Exceptional Regime’(2015) 26 European Journal of International Law, 237, 239.

6

See D. Keane, ‘Attacking Hate Speech under Article 17 of the European Convention on Human Rights’(2007) 25 Netherlands Quarterly of Human

Rights, 641.

578 WAGRANDL