Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger worldEleanor Roosevelt
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
Those words are from the Universal Declaration of Human Rights 1948. In the immediate aftermath of the second world war, the United Nations (U.N) was created. The Charter of the United Nations 1945 determines that nations shall reaffirm their faith in fundamental rights. On 10th December 1948, the Universal Declaration of Human Rights came into being. Even now, 65 years after the end of World War 2, the ideals of the Declaration remain very far from being achieved across enormous areas of the world.
Within Europe, much of which had been devastated by war, there was a distinct move to adopt a European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention” – now simply referred to as the European Convention on Human Rights) . It was adopted in 1950, ratified by the United Kingdom in 1951 and entered into force on 3rd September 1953. The Convention, in common with all international treaties, binds the U.K. so far as international law is concerned. It binds the government of the U.K. (and other “High Contracting Parties”) to meet the standards set by the convention – (Article 1). It was not until 1966 that the U.K. government permitted British citizens to petition and it was not until the Human Rights Act 1998 that the Convention effectively became part and parcel of our law.
The Convention comes within the aegis of the Council of Europe – an organisation of 47 member States with a total population of some 850 million people. The Council was formed in 1949 by, at the time, by 10 States. Professor Ian Brownlie described it as a “sort of social and ideological counterpart to the military aspects of European co-operation represented by NATO”. The U.K. was not particularly keen on the Council having a court. Even in 1950, Sir Hartley Shawcross, the Attorney-General, was stating that “we should refuse to accept the court or the commission as a Court of Appeal and should firmly set our faces against the right of individual petition which seems to me to be wholly opposed to the theory of responsible government”. Perhaps lying behind such statements was a reluctance, within government, to risk colonial matters coming under international scrutiny and, at the time, the U.K. still had many colonies. However, there was strong pressure on the U.K. to agree and the Convention was accepted but, until 1966, individuals could not petition from the U.K.
Further background information may be read at – “What was the point of the European Convention on Human Rights?” UK Human Rights Blog 21st March 2011
Until 1998, petitions were submitted to the European Commission for Human Rights which decided whether the case should proceed to the European Court of Human Rights. However, Protocol 11 abolished the Commission and petitions are now submitted directly to the court. Also, under Protocol 11 (in force 1st November 1998), the ability for individuals to petition became a right and, as such, no longer in the gift of national governments but cases submitted to the court must meet certain “admissibility criteria”. In particular, under Article 35, the court may only deal with a matter after all domestic remedies have been exhausted. In the event that the court decides against a State, there is a duty on that State to rectify the situation.
Since the Convention was first adopted, it has been affected by a number of Protocols. As of June 2010 there are 14 protocols, several of which are concerned with amendments to the machinery supporting the practical workings of the convention. Other protocols affect substantive rights. For example, Protocol 13 abolishes the death penalty totally.
Within the U.K., the Human Rights Act 1998 has brought convention rights much more into the fabric of domestic law. The Act operates in a unique and interesting manner.
The Convention Rights:
Article 1 – The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
This is important and the word “everyone” should be noted. There are no categories of persons who are to be denied the Convention rights.
Article 2 – The Right to Life
Article 3 – Freedom from torture, inhuman and degrading treatment
Article 4 – Freedom from forced labour or slavery
Article 5 – The right to liberty and security
Article 6 – Right to a fair trial
Article 7 – Freedom from facing retrospective crimes or penalties
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 and found a family
Article 13 – An effective remedy for violation of the Convention
Article 14 – The enjoyment of the rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Article 14 only pevents discrimination in so far as securing the rights granted by the Convention is concerned. It is not a blanket ban on discrimination though there is considerable anti-discrimination legislation in the U.K.
Not all of the rights are ABSOLUTE rights since, in most cases, exceptions are permitted.
Article 15 deals with the important topic of “derogations” in time of war or other public emergency threatening the life of the nation. Article 16 provides that nothing in Articles 10, 11 or 14 prevents States imposing restrictions on the political activity of aliens. Article 17 is aimed at preventing abuse of the rights by States (or groups or persons). This might otherwise arise by them engaging in activities (or carrying out actions) aimed at the destruction or limitation of the Convention rights. Of course, permitted limitations provided for by the Convention are acceptable. Article 18 provides that where restrictions on rights are permitted by the Convention, the restrictions must be applied only for those permitted purposes.
Certain other Articles:
Article 19 – provides that there is to be a Court. Further articles deal with matters such as the powers of the court, the judiciary etc.
Article 32 – sets out the jurisdiction of the Court – “all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided by Articles 33 (Inter-State cases), 34 (Individual applications), 46 (Jurisdiction if a State is considered to be failing to comply with a court decision) and 47 (Advisory Opinions).
Article 35 – sets out the criteria which a case must meet to be admissible. In particular, the need to have exhausted domestic remedies and to apply with 6 months of having done so.
Article 46 – States agree to abide by the final judgment of the Court in any case to which they are parties. The Committee of Ministers is charged with supervising the execution of judgments. Under Article 46(4) the committee may refer non-compliance to the court and, if a violation is found, it is for the committee to determine the action to be taken.
Article 57 – Reservations – these have to be set out by States at the time they sign the convention or by the time when they deposit their instrument of ratification. The U.K. entered a reservation to Article 2 of the First Protocol.
Since it was first adopted, the Convention has been affected by a number of “Protocols” – 14 in total by June 2010. Several protocols amend the machinery supporting the practical working of the Convention – e,g, Protocol 11 abolished the European Commission for Human Rights. Other protocols have given additional rights. The following should be noted:
Protocol 1 – peaceful enjoyment of possessions
Protocol 4 – preventing loss of liberty as a penalty for failing to fulfill a contractual obligation. It also deals with freedom to leave a country and prevents governments expelling their own nationals
Protocol 6 – abolishing of the death penalty (except in time of war) and also Protocol 13 (complete abolition)
Protocol 7 – deals with matters such as expulsion, criminal appeals etc.
Protocol 12 – Discrimination – this protocol came into effect on 1st April 2005 and seeks to require States to avoid discrimination in the enjoyment of any provision of National Law. [The British government has not signed this protocol. Their decision not to do so was criticised by the Parliamentary Joint Committee on Human Rights 17th Report – March 2005].
Protocol 13 – total abolition of the death penalty. Note: the U.K. abolished the death penalty for murder in 1965 but retained it for treason and piracy and certain military offences until the Crime and Disorder Act 1998 s36 (Treason and Piracy) and the Human Rights Act 1998 (military offences).
Protocol 14 – makes major amendments to the way in which the European Court of Human Rights operates. This protocol came into force on 1st June 2010 – that is, 3 months after Russia ratified the protocol. Russia was the last State to ratify the protocol and had delayed ratification for political reasons. A useful explanatory FACTSHEET is available. A major reason for Protocol 14 was that the European Court was inundated with applications and needed to reform procedures to improve efficiency. The admissibility criteria for cases was also amended in that an applicant must now have suffered a “significant disadvantage”. This aspect of Protocol 14 is somewhat controversial and close monitoring will be required as to how the court applies this criterion. An early case on the matter was Ionescu v Romania 2010.
Article 15 permits States to derogate from certain aspects of the Convention “in time of war or other public emergency threatening the life of the nation”. Any derogation must only be “to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.” Further, by Art 15(2), no derogations are permissible from Article 2 (except in respect of deaths resulting from lawful acts of war) or from Articles 3, 4(1) and 7 shall be made under this provision.
The Human Rights Act 1998 s.1 states that the Convention rights have effect subject to any designated derogation of reservation. s.14 of the Act essentially states that derogations will be set out in an Order made by the Secretary of State.
The U.K. entered into a derogation following the 9th September 2001 attacks in New York. The derogation related to Article 5(1) (Right to liberty and security) – see The Human Rights Act 1998 (Designated Derogation) Order 2001. This derogation was later removed as a consequence of the House of Lords decision in A (FC) and others v Secretary of State for the Home Department  UKHL 56. See also The Human Rights Act 1998 (Amendment) Order 2005 which removed the derogation. It is a very moot point whether, in 2001, there was actually a “public emergency threatening the life of the nation” but the government stated that there was.