The European Convention on Human Rights
March 3, 2010| The European Convention on Human Rights |
| An adequate safeguard against the power and interests of states? |
| Vanessa Curney |
| May 2009 |
There is no ‘perfect’ international judicial remedy against the power and interest of states, [1] and international law was originally the resolution tool for states rather than individuals. However it is in the arena of human rights where the individual can stake his or her claims, and the European Convention of Human Rights and Fundamental Freedoms, giving it its full title, does this at least as well, if not better than other international instruments, broadening the individual’s access to the European Court of Human Rights for the 47 Convention member state parties and others besides. Anyone irrespective of their nationality may submit an application against any of the Convention’s member states (or Contracting Parties as they are also known), providing he or she comes within that State’s jurisdiction. An applicant:
- Does not need to be a national of one of States bound by the Convention. The violation must simply have been committed by one of those States within its “jurisdiction”, which usually means within its territory
- Can be a private individual or a legal entity such as a company or association.
- Must have directly and personally been the victim of the alleged violation. A general complaint about a law or a measure cannot be made, nor can one complain on behalf of other people (unless they are clearly identified and the applicant is their official representative).[2]
The Convention was adopted in Rome by the Council of Europe (not to be confused with the European Union’s European Council) in 1950. It was inspired by the Universal Declaration of Human Rights (adopted in 1948 and which itself serves purely as a guideline rather than being obligatory and binding on parties). The original 12 member states of the Council of Europe and the Convention were: Belgium, Denmark, France, Germany, Iceland, Ireland, Italy, Luxembourg, the Netherlands, Norway, Turkey and the UK. Of the 47 current Convention state parties, all 27 European Union member states are represented.
The Convention’s judicial arm is the European Court of Human Rights, established in 1959, with a single, permanent and full-time court created in 1988. 47 judges sit at the Court, one for each state party, and they are elected every six years, the current (tenth) Court President being Jean-Paul Costa of France.
The Convention rights mainly cover the political and civil sphere although economic and social rights are increasingly addressed[3] (eg the additional Protocol 1 Article 2 on the right to education). In addition there are 14 Protocols that add new rights to the original text or amend procedures.
European Convention on Human Rights – Rights and Freedoms
Article 1 – Protection of rights/prohibition of imprisonment for debt
Article 2 – Right to life/education/freedom of movement
Article 3 – Right to free elections/prohibition of torture
Article 4 – Prohibition of slavery and forced labour
Article 5 – Right to liberty and security
Article 6 – Right to a fair trial
Article 7 – No punishment without law
Article 8 – Right to respect for private and family life
Article 9 – Freedom of thought, conscience and religion
Article 10 – Freedom of expression
Article 11 – Freedom of assembly and association
Article 12 – Right to marry
Article 13 – Right to an effective remedy (before a national authority)
Article 14 – Prohibition of discriminations
Article 15 – Derogation in time of emergency
The Convention is binding on the signatories[4] (in so far as requiring them to comply the Convention in national law), and all dualist member states of the Council of Europe have incorporated it into their domestic legislation. For example, the UK subsumed most of it into the 1998 Human Rights Acts, with section 3 of that Act stipulating that: ‘all legislation (is) to be interpreted as far as possible in a way that is compatible with Convention rights…’ Prior to the Human Rights Act, individual rights in the UK had been ill-defined and dependent on case-studies, tradition and precedent, in other words, common law. But an older example of a ‘law of humanity’ becoming common law (and then incorporated into the UK 1998 Human Rights Act) is the case of Rex v The Inhabitants of Eastbourne, where the then Lord Chief Justice ruled in favour for refugees who were starving on Eastbourne streets in 1803 having fled the Napoleonic Wars. He said: “The law of humanity, which is anterior to all positive laws, obliges us to afford them relief to save them from starving.”[5]
‘The articles that have probably been the subject of most litigation since the HRA (Human Rights Act) are article 6, the right to a fair procedure, and article 10, freedom of speech, but both rights were long recognised by the courts prior to the HRA. As was pointed out in a letter to the Times from Francis Bennion on the 28 Feb 2003: “Exactly 200 years ago the English town of Eastbourne occasioned the laying down of the definitive law on this point. In the case of Rex v The Inhabitants of Eastbourne (1803) the Chief Justice, Lord Ellenborough, ruled that our law required relief to be afforded to all starving paupers, whether statutorily entitled or not, who were found wandering abroad and lodging in the open air in the Duke of Devonshire’s salubrious town of Eastbourne. Lord Ellenborough said: the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving. What he meant was that in this respect, as in many others, the common law of England embraces the natural law and serves humanity.’[6]
Though binding, there is a flexible approach for state parties to interpret the Convention, which does not prescribe how, for example, dualist states should exactly incorporate their Convention obligations. However, this does not necessarily detract from its influence over state parties in their required exercise of human rights considerations pertaining to the Convention, especially in relation to individual petitions where, under Protocol 11,[7] ‘the right of individual petition became automatic rather than dependent upon the acceptance of the state complained against’ (Shaw, International Law, Cambridge University Press, p.353) Shaw adds that ‘it was, of course, long recognised that individuals were entitled to the benefits of international law, (the UK has itself recognised the rights if individual petition since 1966, my parenthesis) but it is only recently that they have been able to act directly rather than rely upon their national states.’ [8] Lord Woolf, the Lord Chief Justice of England and Wales, highlighted the significance of the Act in the aforementioned speech at the Oxford Lyceum, when he said: ‘The (Human Rights Acts) has strengthened our democracy by giving each member of the public the right to seek the help of the courts to protect his or her human rights in a manner that was not previously available.’
*
UK Human Rights Act 1998
3. Interpretation of legislation
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in such a way which is compatible with Convention rights.
(2) This section –
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility…
*
In the UK a recent landmark decision made in the High Court has been one of the latest examples of the Human Rights Act being made effective. The Court ruled that Article 2, the right to life, could apply to soldiers on the battlefield, even though the Ministry of Defence had argued that the European Convention on Human Rights (ECHR) cannot be guaranteed in certain situations. The rulings centred on a case brought by the family of Private Jason Smith, who died of heatstroke while serving with the Territorial Army in Iraq in 2003.[9]The MOD has been permitted an appeal at the House of Lords with no date set at the time of writing. But this is an interesting development because the Human Rights Acts is not an ‘entrenched’ bill of rights and its provisions can be set aside by Parliament over, for example, terror legislation.
Nonetheless, in accordance with ‘the accepted rules of international law’ the right to redress to the European Court of Human Rights is not in itself instantaneous: ‘the Court may only deal with a matter once all domestic remedies have been exhausted…and within a period of six months from the date on which the final decision was taken. Such remedies must be effective. Where there are no domestic remedies to exhaust, the act or decision complained against will itself be normally be taken as the ‘final decision’ for the purposes of Article 26’ [10]
It must be pointed out that the Convention does allow both inter-state applications as well as those from individuals. [11] In practice the volume of the latter outweighs that of the former, and the volume of that is ever-increasing. By January this year, the Court had delivered 10,574 judgements, whilst there were 97,300 applications pending. This indicates the growing importance of the Convention and the Court to individuals, whilst still operating on a ‘wide margin of appreciation’ basis (Shaw, International Law, Chapter 7, page 356, para 2): the idea that national systems should be the primary route for grievances, with the Court acting as a kind of supervisor. This risk-averse stance which causes the Court to be reluctant to pin states down on their compliance under the Convention may prove both a blessing and a curse as its influence grows, especially when the violation most frequently found by the Court concerns Article 6, the right to a fair trial, and in particular the unreasonable length of domestic proceedings. But in the meantime, the Court continues to develop ‘a jurisprudence of considerable importance’ (Shaw, page 356)
The European Convention of Human Rights in action at the local level – a UK example
In 2003, the Audit Commission[12] published its report Human Rights – Improving public service delivery. In reply to the question of why human rights are important it responded:
‘Because it is the law. The (1998 Human Rights) Act makes all public bodies in England and Wales responsible for behaving in a way that does not breach the rights of individuals, as identified by the European Convention of Human Rights…’[13]
The report also identified examples of the Human Rights Act in action, one of them being the case of Runa Begum v Tower Hamlets (2003):
Case: The local authority had a duty to secure accommodation for the applicant, who was homeless. She was offered accommodation but rejected it on the grounds that the area was characterised by racism and drug problems. A local authority officer reviewed the accommodation and concluded that it was suitable. However, the House of Lords upheld a Court of Appeal decision that this process did not comply with Article 6 ECHR, which provides that every person, in the determination of their civil rights and obligations, is entitled to a fair and public hearing by an impartial and independent tribunal. The local authority should have at least considered using its statutory powers to direct a review by an independent body rather than conducting a final review by its own officer.[14]
Some seem to credit municipal law as the only credible tool for applying human rights rather than the Convention per se: ‘The 1998 (Human Rights) Act, not the Convention, is the source of the authority for municipal tribunals to apply the rights. Even the meaning of the rights in municipal law is not necessarily the same as in international law, as the interpretation of the European Court of Human Rights provisions by Strasburg organs is persuasive but not binding (my italics) on municipal tribunals.’ [15]
But, as long as the Convention achieves its desired outcomes, especially in achieving fair judgements on behalf of individuals, does it matter where credit is bestowed? The European Convention on Human Rights can (and does) have significant, even large scale, ramifications on domestic law for individuals and for the state.
Bibliography
European Convention of Human Rights (ECHR)
1933 Montevideo Convention on the Rights and Duties of States
Martin Dixon & Robert McCorquodale, Cases & Materials on International Law, Oxford University Press, 4th ed.
European Court of Human Rights website – http://www.echr.coe.int
Amnesty International (USA) website – http://www.amnestyusa.org/demand-dignity/economic-social-cultural-rights/page.do?id=1011006
1969 Vienna Convention on the Law of Treaties, Article 26 – Pacta sunt servanda
Rex v The Inhabitants of Eastbourne (1803) 4 East 107; 102 ER 769.
Lord Woolf speech, ‘The Impact of Human Rights’ at the Oxford Lyceum, 6 March 2003
Malcolm N Shaw, International Law, 2008, Cambridge University Press (6th Rev. Ed.)
BBC website, MOD loses battlefield rights case – http://news.bbc.co.uk/1/hi/uk/8054875.stm
Financial Times, Battlefield fears after human rights judgement, May 19 2009 p. 3
Audit Commission ‘Human Rights: Improving Public Service Delivery’ 2003 report
D. Feldman, ‘Monism, Dualism and Constitutional Legitimacy’, 20 Australian Yearbook of International Law (1999)
[1] According to Article 1 of the Montevideo Convention on the Rights and Duties of States 1933 ‘The state as a person of international law should possess the following qualifications: a) a permanent population b) a defined territory c) government and d) capacity to enter into relations with other states)
[2] Protocol 9 to the European Convention for the Protection of Human Rights and Fundamental Freedoms Broadening the Access to the Court for Individuals and substantially modifying the provision of the ECHR (Dixon & McCorquodale, Cases & Materials on International Law, Oxford University Press, 4th ed. P. 146); Article 25; European Court of Human Rights website, FAQs
[3] ‘Economic, social and cultural rights (ESCR) relate to the conditions necessary to meet basic human needs such as food, shelter, education, health care, and gainful employment. They include the rights to education, adequate housing, food, water, the highest attainable standard of health, the right to work and rights at work, as well as the cultural rights of minorities and indigenous peoples.’ – Amnesty International (USA) website – http://www.amnestyusa.org/demand-dignity/economic-social-cultural-rights/page.do?id=1011006
[4] Vienna Convention on the Law of Treaties 1969, Article 26 Pacta sunt servanda
[5] Rex v The Inhabitants of Eastbourne (1803) 4 East 107; 102 ER 769.
[6] Lord Woolf speech, ‘The Impact of Human Rights’ Oxford Lyceum, 6 March 2003
[7] ECHR Section 11, Article 34: Individual applications –
‘The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.’
[8] M N Shaw, International Law, 2008, Cambridge: Cambridge University Press (6th Rev. Ed.) p. 46, paragraph 1
[9] BBC website, MOD loses battlefield rights case, 18th May 2009, http://news.bbc.co.uk/1/hi/uk/8054875.stm; FT, Battlefield fears after human rights judgement, May 19 2009 p. 3
[10] M N Shaw International Law, 2008, Chapter 7, page 355; Convention for the Protection of HR, Article 35 Admissibility criteria 1: ‘The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken’; Cyprus v Turkey, Yearbook of the European Court of Human Rights, 1978. pp 240-2)
[11] Article 33, ECHR, Inter-State cases: ‘Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the protocols thereto by another High Contracting Party’
[12] The Audit Commission is an independent body responsible for ensuring that public money is spent economically, efficiently and effectively…(preface to 2003 Human Rights – Improving public service delivery report)
[13] Audit Commission, ‘Human Rights: Improving Public Service Delivery’ 2003 report, page 3
[14] Audit Commission ‘Human Rights: Improving Public Service Delivery’ 2003 report, page 17
[15] D. Feldman, ‘Monism, Dualism and Constitutional Legitimacy’, 20 Australian Yearbook of International Law (1999) 105, 114-5, 118-9
