Intro To Human Rights Notes

Con&Ad : Human Rights 1, Intro to Human Rights & ECHR

Background—development of human rights as a legal concept

• Natural law and international law-Enlightenment liberalism, C18

• Natural law theory—legal product of European Enlightenment. Derived from Greco-Roman philosophical tradition

• Natural law: sought to explain the bases of legal obligations from a canon of legal values seen to be superior to any national legal rule or authority.

• Eg John Locke, Thomas Paine, Rousseau and before them Hobbes (albeit from a less liberal perspective).

• Rights of man, Thomas Paine.

• Rousseau.

• International law arose from natural law: because there was no ‘king’ of the international realm. International law actually stronger in terms of obligation than national law.

• From mid C17 to turn of C20, natural law slowly evolved into international law proper.

• C18 radicalism

• Destruction of traditional national constitutional orders and replacement with new models, with rights at their centre: the revolutions in America (1776); and France (from 1789).

• USA Declaration of Independence (1776) and Constitution of USA (1787)—recognised individual human rights, Constitution featured an extensive declaration of rights.

• US constitutional principle (‘Bill of Rights’)—provided protection for human rights—the first unequivocal, lasting and judicially enforceable rights document.

• Influence on revolution: USA 1776 Declaration of Rights.

• France 1789: Declaration of the Rights of Man & Citizen.

• NB English Bill of Rights 1688 doesn’t contain individual human rights. It’s not a declaration of rights of man.

• England doesn’t get a human rights act until 1998.

• Post WW2

• Nuremberg trials.

• 1945, founding of UN.

• Universal Declaration of Human Rights (UDHR) 1948. [is a resolution of the UN General Assembly, and as such is not ‘law’]. But arguable that its universal acceptance means its principle become binding as customary international law.

  • Art 1:

  • All human beings are born free and equal in dignity and rights.

  • They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

• But this has been replaced by European approach for British.

• 1948, UN Genocide Convention.

• 1966: International Covenant on Civil and Political Rights (ICCPR); and International Covenant on Economic, Social and Cultural Rights (ICESCR).

• Modest results—but these marked the beginnings of a truly universal, judicial system of rights protection.

• Maybe greatest impact of UN system = inspiring the European mechanism.

• Regional arrangements: regional systems of rights and judicial enforcement—to deal with issue of cultural relativism.

Background to European Convention of Human Rights (ECHR) and need for HRA 1998

• European response

  • Council of Europe 1949, HQ in Strasbourg. Included UK.

  • Convention for the Protection of Human Rights & Fundamental Freedoms (‘ECHR’/’The Convention’).

  • Significant British involvement in the drafting (including Sir David Maxwell-Fyfe).

  • Ratified 1950; in force 1953.

  • But Britain didn’t adopt

  • 1966: UK gave individuals the right to lodge ‘complaints’ under ECHR if they had exhausted all domestic legal remedies.

  • NB: Council of Europe and ECHR have nothing to do with the EU or EU Law.

  • Council of European today: and thus the Convention, has 47 Members, 850 million ppl. Only European member not a member: Belarus.

  • Since 1989 (fall of communism), Council’s main functions in addition to overseeing the ECHR:

  • (1) acting as a political anchor & human rights watchdog for Europe’s post-communist democracies;

  • (2) assisting the countries of central & eastern Europe in carrying out and consolidating political, legal and constitutional reform in parallel with economic reform;

  • (3) providing know-how in areas such as human rights, local democracy, education, culture and the environment.

• Britain—civil liberties approach: Britain has rights, but calls them ‘civil liberties’ –rights in a different format. Not positive rights which are stated; but residual liberties—your liberties are what are left over by the law (eg Entick v Carrington).

• Flipped from HRA 1998, now we have positive human rights

The Legal status of the ECHR in Member States

• Convention as international law: is a form of international, rather than domestic, law.

• Most European states are Monist systems: systems which treat all forms of law as belonging to a single, binding system—i.e. they treat international law (including the Convention) as binding on their domestic legal systems. If the two forms of law clash, then international law rule is superior and overrides domestic rule. This is what drafters of ECHR had in mind.

• But UK is a dualist system: treating the ‘two’ legal orders as wholly separated. The UK state may be bound by international law, but the court system of UK is not bound in the same way. International law can only be of significance in UK in 2 circumstances:

  • (1): where UK itself is before an international court. UK can violate specific rules of international law that an international court has granted jurisdiction over. When the ECtHR (European Court of Human Rights) rules on an issue, it is the legal responsibility of the UK gov, under international law, to ensure that the laws of the UK fit with that ruling.

  • (2) Where the UK has incorporated international law rules into its domestic legal system through an enabling act of Parliament. This ‘domestication’ makes the rules part of domestic law, and thus binding on the UK courts. HRA 1998.

• The need for HRA 1998:

  • 2 important features about UK’s membership of ECHR syste before HRA 1998:

    • (1) For most of the time before HRA, the UK led Europe in terms of number of ECHR violations. This only changed in 1990s (as first Italy, then Turkey, then Russia stole its crown).

    • (2) However UK had an unparalleled record in following the judgements and recommendations of the ECthR—i.e. rectifying the failings in its laws promptly and fully.

  • I.E.: So there were two conclusions:...

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