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IPHR Chapter 6

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9 views

IPHR Chapter 6

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Aaban khan
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We take content rights seriously. If you suspect this is your content, claim it here.
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International Protection of Human Rights

Chapter 6
The European Systems for Protecting Human Rights
Learning objectives:
• Consider the place of regional treaties in the global human rights
edifice.
• Outline the historical roots of the Council of Europe.
• Introduce the European Social Charter.
• Summarise and explain the basics of the European Convention on
Human Rights.
• Highlight some of the challenges facing the Council of Europe system.
1. Regional, Universal, General and Right specific human
rights treaties
• Political and legal developments at the global level become overly bogged down in political
differences between States.
• With regard to many issues, States within a geographic region are more likely due to political,
economic, religious, historic or cultural reasons to be able to come to some agreement between
themselves about standard-setting or enforcement, which they may not be able to reach within a
broader community of states.
• In the human rights field, global and regional treaties may be complementary but equally
conflictual.
• Where there is conflict or tension - regional treaties are neither superior nor inferior to the UN
human rights treaties.
• States must uphold all their legal obligations in good faith. The right-specific UN treaties are
neither superior nor inferior to the general treaties.
• There are thus over-lapping layers of obligation.
2. The Origins and Evolution of the European System on
Human Rights
• Council of Europe – set up 1948.

• European Convention on Human Rights agreed 1951.


• European Court was optional – idea was radical at the time. Court had to build up confidence and trust with
State parties.

• European Social Charter agreed in 1961 – with very different enforcement mechanisms and nature
of obligations.

• Council of Europe - has evolved very substantially.


• End of Cold War led to expansion East and South.
• Accession of ‘problem States’.
• Rise of nationalist regimes in Central and Eastern Europe – Turkey, Russia and Hungary.
• Entirely distinct from the European Union.
3. The European Social Charter
• The original version of the Charter was adopted in 1961. A number of further rights were added by
a Protocol in 1988.

• In 1996, many of the existing rights were substantially amended and updated and a number of
new rights added and included in a new treaty, known as the Revised European Social Charter. The
1961 Charter continues to apply for some States. Distinction drawn between core and non-core
rights.

• The Charter has two forms of machinery for compliance.


• An obligatory system of reporting which has been in existence since the adoption of the Charter in 1961.
• An optional system of ‘collective’ complaints that was introduced in 1995. It is important to emphasise, it
is a collective system, not an individual one like the Optional Protocol to the ICESCR, for example.

• The Charter is interpreted by the European Committee of Social Rights (‘ECSR’), a body of
independent experts in social policy and law.
4. The European Convention on Human Rights
• Adopted in 1951. First functioning international human rights law court in the
World.

• Articles 2-14 are classic civil and political rights-


• Including right to life, not to be tortured or held in slavery, right to family life, expression,
religion and association.

• Rights protected by the European Court of Human Rights.


• High reputation for independence and integrity; perhaps less satisfactory in more recent years.

• Process by which Court hears cases has changed over time to cope with workload.
• Protocol 11 and then Protocol 14.
5. Problems Besetting the European Court of Human Rights
• In 2017, for example, there were over 63,000 petitions submitted to the
Court.
• This was 20 per cent up on the previous year.

• The number of cases waiting to be heard by the Court was over 56,000 in
2017, down from a high of over 150,000 in 2010.

• Most pending cases are from :


• Romania (17.6%); Russia (13.8% ); Turkey (13.3%) & Ukraine (12.6%).

• Court cannot cope with its workload, leading to delays and denial of rights.
Further Reading:
• https://www.echr.coe.int/Pages/home.aspx?p=home

• A. Mowbray, Cases and Materials on the European Convention on Human


Rights (Oxford University Press, 2012) 3rd edn.;

• The texts of Protocols 15 and 16 and the explanatory report to Protocol 16;

• P. Leach,. ‘The European system and approach’ in Sheeran and Rodley (eds),
pp.407–25; and

• S. Greer, ‘Europe’ in Moeckli, Shah and Sivakumuran (eds), pp.416–39.

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