European Convention on Human Rights

European Convention on Human Rights

In this article, I shall discuss the European Convention on Human Rights. I shall begin by discussing the history of the European Convention on human rights, as well as the evolution of the convention in the context of international law and international human rights law. I will then discuss the components of the convention, as well as discussions with regards to the convention. This will include points of debate and controversy related to the ECHR.

What is the European Convention on Human Rights?

The European Convention on Human Rights is an international human rights document that was first drafted by the Council of Europe. The year that the European Convention on Human Rights was written was in 1950. This document came shortly after the Universal Declaration of Human Rights, which is arguably the most noted international document as it pertains to human rights. The UDHR was passed in the United Nations, with a vote of 48-0-8. The idea of the European Convention on Human Rights was ” aimed to achieve greater international unity in recognising the equal rights of men and women, and to incorporate the traditions of civil liberty. It came into force on 3 September 1953.The adoption of the convention by the Council of Europe was the first step in implementing the Declaration of Human Rights in writing” (Guardian, 2014). The European Convention on Human Rights is currently one of the most important human rights documents, particularly with regards to countries in Europe. Interestingly, the beginning of the ECHR references the UDHR. Here is the beginning of the ECHR:

The Governments Signatory Hereto, being members of the Council of Europe,

Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10th December 1948;

Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared;

Considering that the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of Human Rights and Fundamental Freedoms;

Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend;

Being resolved, as the governments of European countries which are likeminded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration,

Here is a brief video from youtube that discusses the adoption of the European Convention on Human Rights and the current European Union.

The ECHR is focused on a variety of human rights. For example, there is a strong concentration on different rights and individual human freedoms. In fact, ” There are 17 key articles relating to rights and freedoms in the convention outlined in section 1 Article 2-18, which include: 2) the right to life; 3) prohibition of torture; 4) the prohibition of slavery and forced labour; 5) the right to liberty and security; 6) the right to a fair trial; 7) no punishment without law; 8) the right to respect for private and family life; 9) freedom of thought, conscience and religion and 10) freedom of expression” Guardian, 2014).

Here is the link to a pdf of the European Convention of Human Rights. There were initially 66 Articles in the European Court of Human Rights (although later Protocols deleted prior parts), along with Five Protocols. The five ECHR Protocols are:

  1. Enforcement of certain Rights and Freedoms not included in Section I of the Convention
  2. Conferring upon the European Court of Human Rights Competence to give Advisory Opinions
  3. Amending Articles 29, 30, and 94 of the Convention
  4. Protecting certain Additional Rights

(These additional rights include Articles, which say the following:

  • “No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation”
    1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
    2. Everyone shall be free to leave any country, including his own.
    3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety for the maintenance of ‘ordre public’, for the prevention of crime, for the protection of rights and freedoms of others.
    4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposes in accordance with law and justified by the public interest in a democratic society.
    1. No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.
    2. No one shall be deprived of the right to enter the territory of the State of which he is a national.
  • Collective expulsion of aliens is prohibited.
    1. Any High Contracting Party may, at the time of signature or ratification of this Protocol, or at any time thereafter, communicate to the Secretary-General of the Council of Europe a declaration stating the extent to which it undertakes that the provisions of this Protocol shall apply to such of the territories for the international relations of which it is responsible as are named therein.
    2. Any High Contracting Party which has communicated a declaration in virtue of the preceding paragraph may, from time to time, communicate a further declaration modifying the terms of any former declaration or terminating the application of the provisions of this Protocol in respect of territory.
    3. A declaration made in accordance with this article shall be deemed to have been made in accordance with paragraph 1 of Article 63 of the Convention.
    4. The territory of any State to which this Protocol applies by virtue of the ratification or acceptance by that State, and each territory to which this Protocol is applied by virtue of a declaration by that State under this article, shall be treated as separate territories for the purpose of the references in Articles 2 and 3 to the territory of a State.
    1. As between the High Contracting Parties the provisions of Articles 1 to 5 of this Protocol shall be regarded as additional articles to the convention, and all the provisions of the Convention shall apply accordingly.
    2. Nevertheless, the right of individual recourse recognized by a declaration made under Article 25 of the convention, or the acceptance of the compulsory jurisdiction of the court by a declaration made under Article 46 of the convention, shall not be effective in relation to this Protocol unless the High Contracting Party concerned has made a statement recognizing such a right, or accepting such jurisdiction, in respect of all or any of Articles 1 to 4 of the Protocol.
    1. This Protocol shall be open for signature by the members of the Council of Europe who are the signatories of the Convention; it shall be ratified at the same time as or after the ratification of the Convention. It shall enter into force after the deposit of five instruments of ratification. As regards any signatory ratifying subsequently, the Protocol shall enter into force at the date of the deposit of its instrument of ratification.The instruments of ratification shall be deposited with the Secretary-General of the Council of Europe, who will notify all members of the names of those who have ratified.” (European Convention of Human Rights and Its Five Protocols)

The European Convention on Human Rights and Controversy

The European Convention on Human Rights has not been without controversy. However, this is not limited to the ECHR, but can be argued is also the case with any other form of law; even the UDHR has been debated for decades with regards to the types of rights included, and what is left off the original declaration. With regards to the ECHR, some leaders have taken issue with legal interpretations of the document at the European Court of Human Rights. For example, as discussed in a 2012 BBC report 

“The UK has clashed with the European court over a number of issues.

Last week, Strasbourg upheld a challenge by radical preacher Abu Qatada that deporting him from the UK to Jordan would breach his human rights.

Westminster is also embroiled in a row with the court over voting rights for prisoners. The UK’s blanket ban on prisoners voting has been held incompatible with the European Convention on Human Rights but last year MPs voted to keep it – although the vote was not binding. A new ruling is due on the case soon.

In his speech, Mr Cameron said no-one should “doubt the British commitment to defending human rights”, but that did not mean “sticking with the status quo”.

At that time, Cameron pointed out a few problems with the ECHR and more specifically the European Court of Human Rights. For example, Cameron, when in office, argued that there were many cases that were in the queue that were still not yet take up by the European Court. (Follow here for detailed information on the European Court of Human Rights). In fact, Cameron has discussed the possibility of Britain leaving the European Convention on Human Rights. Much of the issue stems from the sovereignty that states give to the European Court of Human Rights; Cameron, for example, wants to have the ability to use domestic courts as it pertains to issues such as deportation of foreign criminals.

In terms of this contention between Britain and the European Convention on Human Rights, Frantzou explains that

Recently, the ECHR and the judgments of its permanent court, the European Court of Human Rights (ECtHR), have attracted considerable – mostly negative – press in the UK. The Conservative party’s 2010 manifesto, whilst not challenging the ECHR itself, was unsympathetic towards the Human Rights Act 1998 (HRA), which implements the Convention and places a duty on UK courts to apply it. On 18 March 2011 the Government announced to Parliament the establishment of a Commission on a Bill of Rights, which was asked to assess the benefits of a potential repeal of the HRA and its replacement with a UK Bill of Rights, as well as to advise the Government on its position in the Council of Europe. While the Commission did not reach consensus on the creation of such a Bill in its report, contentious issues such as prisoners’ voting rights and the deportation of migrants convicted of criminal offences have continued to make headlines, leading to bold statements by the Prime Minister in September 2013 to the effect that Britain may end up leaving the ECHR.”

But while there has been recent consideration by Cameron to withdraw from recognizing the document and the European Court of Human Rights over Britain, there have been arguments that also point out the positive effects of the European Convention of Human Rights, and the European Court of Human Rights as it relates to Britain. For example, Mikey Smith of the Mirror argues that the European Court has allowed human rights abuses to be exposed, it has granted rights for homosexuals to serve in the British military, and it offered protections of children who may have been beaten (Smith explains that “A case was brought against the UK government in September 1998 which ruled that the beating of a young boy with a wooden cane by his stepfather was a “cruel and unusual punishment”. A British court had declared it a “reasonable chastisement” and dismissed the case. In not providing enough protection for the child, the government fell foul of the same article of the European Convention that bans torture. The government was ordered to pay the boy £10,000 plus legal costs). In addition, the court made it illegal for the government to store DNA of innocent people, and the ECHR prevented the ability of the British government “[being] able to charge immigrants a fee if they married anywhere but the Church of England.” Moreover, torture is illegal under the ECHR and European Court of Human Rights, a fundamental human right.

What is also interesting to note is the the UK was instrumental in working to establish the European Convention on Human Rights, and the European Court of Human Rights. For example, as Frantzou says on the issue:

Often, discussions regarding the UK and the ECHR suggest that the Convention is something foreign to UK law. However, the UK has been instrumental in the drafting and development of the Convention. The ECHR was drafted largely under the supervision of Sir David Maxwell Fyfe; the UK was the first country to ratify the Convention in 1951; and Lord McNair, a British legal scholar, became the first President of the ECtHR in 1959. Still, British involvement in the Convention has not merely been a matter of historic coincidence. ECHR rights and freedoms are rooted as deeply in UK law as the Magna Carta and have been resolutely protected by courts in this country well before the entry into force of the Convention. The Convention and, in turn, the Human Rights Act 1998, codify values that have long imbued the British common law and enshrine “quintessentially British” ideals.

Books on the European Convention on Human Rights

There are many academic articles and books related to the European Convention on Human Rights that will allow the reader to gain more insight into the human rights document, as well as related entities such as the European Court of Human Rights. Here is a list of just a few references that may be of interest.

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