Adam Gearey. ECHR

Standard

origin of convention is linked to belief that rights must be there to protect people from oppressive governments

the ending of hostilities gave an impetus to the movement for a just world order

fuller consideration would link these concerns in Europe to UN and UDHR

there is a relationship between ECHR and UDHR

the roots of the ECHR rest in reconstruction after second world war

politics of this period are complex

one should not imagine there was universal support for HR or economic community

some french and german politicians wanted integration

UK;s position was different. ernest bevin was against federalism or economic integration

empire was key

independence would be granted to colonies

people thought this must be gradual. HR were not in the UKs interests as some thought this would spur independence. it would bring international scrutiny into colonies

May 1948. Hague conference

proposed drafting on convention of human rights. churchill was chairman

he was an enthusiast of HR

 

legal profession in the UK were not so keen

agenda was seized by supporters of the rights convention

Council of Europe was created ans tasked with creation of HR document

doicument was designed not ti limit state sovereignty

there was a lack of consensus on HR

it has no legal, legislative or executive status

its mere existence was positive

council of europe was reluctant of convention” seen as a support for democracy

there is a problem there.

HR are international

this is inconvenient for nation states. countries no longer have absolute power

International court reduces sovereignty

it interferes with what governments can do. paradox of HR. intl HR have to rely on nations and yet nations are loathe to countenance them

these limit state sovereignty

 

 

there is a tension

themes run through HRE

convention signed in rome in 1950

old convention created an European commission and a court

early history of the convention after it entered into force in 1953

caseload was light’ as we continue to the modern period this caseload increased

court and commission could not cope

reform of the institutions appeared to be overdue

protocol 11 sought to streamline the nature of the convention institutions – ratified in 1998.

by abolishing the commission – enhancing powers of court and means for enforcing judgments

it made it obligatory to recognise the right of individual petition and to recognise jurisdiction of E court of Hr

2004 protocol 13

refined the rule on admissibility

allowed single judges to hear cases

this made big changes. scale of reform, indicated

committee of ministers suggested more measures are needed

what lies behind it.

former USSR countries joined and this increased the caseload

we look at an intl HR system were individual petitions can be submitted

other intl HR systems do not have this. the Euro system has a strong court

that distinguishes it from other regional systems

status of the convention in UK law

stress that the E convention HR is an intl treaty

hoffman and rowe said  ”the convention was a v radical innovation. Never before had their been a system of intl law that held states accountable to some superior body for actions against its own citizens

 

 previous intl tribunals were constituted solely to settle matters between states or in the case of Nuremberg to try people for their own criminal responsibility.             ”

convention is radical in making states answerable to an intl body

intl tribunals was previous about dispute resolution

under E convention HR states must uphold rights of their citizens

 

impact of domesticated rights

prior to domesticating convention it remained an intl treaty

a citizen had to exhaust domestic remedies and then take the country to the ECHR

this was time consuming and costly

once rights are domesticated these rights can be used in domestic courts

privacy rights is an example . article 8. this has developed a domestic law on this

common law has grown HR a lot

fundamental issues on kind of rights

 

 

 

 

Advertisements

About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s