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European Court of Human Rights: A model for all Human Rights Courts

Updated: Jun 16

Written by: Kanak Mishra, Student, Jindal Global Law School, Sonepat

The horrific atrocities of World War II had the world on its toes to think of ways to guard the basic Human Rights. One way of doing so was by embodying these rights in a concrete system of ‘Rule of Law.’[1] The concept of the rule of law,


as propounded by Dicey,[2] was widely sought from 1885. Hence, this contributed to the adoption of the Universal Declaration of Human Rights by the United Nations. In subsequent years, the importance of the declaration faded, and it was merely an instrument that the ordinary folks were unaware of. Moreover, Human Rights violations warranted the need to have an enforcement mechanism.


These lacunas were acknowledged by the sixteen-member Council of Europe, which then decided to ratify the ‘European Convention’ (Protection of Human Rights and Fundamental Freedoms, 1950) in the year 1953.[3] Following the Convention, a European Commission for Human Rights was set up in the year 1954 to ensure the institution of international legal actions in lieu of the Convention.[4] The need for an enforcement mechanism in the form of judicial machinery was catered to by establishing the European Commission and later the European Court in the year 1959. The Committee of Ministers in the Commission prepared a draft of ten rights and freedoms which would be protected by the Court after getting filtered by the commission. This draft was referred to a panel of experts, some of which later turned out to be the judges of the Court.


The opinion on the draft was divided with France, Italy, Belgium, and Ireland in favor of the creation of a court, whereas the Netherlands, the United Kingdom, Norway, Sweden, Greece, and Turkey against the proposal. A significant reason for such division was the kind of rights that would be guaranteed by the Convention, some of which were not agreed to by all countries, parties to the Convention. The most contentious rights being the right of property, freedom of education, and the right to free elections. Therefore, by way of amendments, further Protocols were brought in to provide additional rights for example- Protocol No. 4 (1963) relating to the prohibition of imprisonment for debt, freedom of movement, the prohibition of the expulsion of nationals and the prohibition of collective expulsion of aliens and Protocol No. 6 (1983) concerning the abolition of the death penalty. With these amendments and the mandatory requirement of Ratification of the Convention for the Membership of the Council of Europe, the draft was approved.[5] Finally, in the year 1959, the European Court was established for the enforcement of the European Convention by guaranteeing civil and political freedoms to the signatories.[6] An important point of distinction is that while the Convention allowed for "any person, non-governmental organization or group of individuals"[7] to bring forth the violations of Human Rights, the Court, on the other hand, could be approached only by the “state parties to the convention”.[8]


Human Rights were thus removed from the political arena to these independent bodies, i.e., the European Commission and the European Court of Human Rights, to ensure international judicial enforcement.[9] However, this distinction does not hold ground at present because the Commission and the Court were merged in the year 1998, such that now even individuals may directly put forth their cases in the European Court.[10] Thus, despite being a court of regional jurisdiction, the European Court’s impact was enormous on an international scale with it becoming a model for other Human Rights courts such as the Inter-American Court of Human Rights established in 1979 and the African Court on Human and Peoples’ Rights established in 2006.[11]

References

[1] Sean MacBride, ‘The European Court of Human Rights’, 3 N.Y.U. J. INT'L L. & POL. 1 (1970). < https://heinonline.org/HOL/Page?handle=hein.journals/nyuilp3&id=11&collection=journals&index= > [2] A V Dicey, 1885, The Law of the Constitution. [3] Id. at 1. [4] Belei Gheorghe, ‘European Court for Human Rights’, 10 ANNALES UNIVERSITATIS APULENSIS SERIES JURISPRUDENTIA [25] (2007). < https://heinonline.org/HOL/Page?handle=hein.journals/auaplsj10&id=25&collection=journals&index=> [5] Jonathan L. Sharpe, ‘The Birth of the European Convention on Human Rights’ [The Conscience of Europe: 50 Years of the European Court of Human Rights (Kairos, 2017)] < https://www.echr.coe.int/Documents/Anni_Book_Chapter01_ENG.pdf> [6] John G. Merrils, ‘The European Court of Human Rights’, <https://www.britannica.com/topic/European-Court-of-Human-Rights> [7] Article 25(l). [8] Articles 48. [9] Id. at 6. [10] Id. at 5. [11] Robert Clarke, Kairos 2017, The Conscience of Europe: 50 Years of the European Court of Human Rights. < https://www.echr.coe.int/Documents/Anni_Book_Chapter01_ENG.pdf>

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