Before the mid-20th century, international law was mainly concerned with States (or nations) and their relationships. Only minimal attention was paid to the relationship between States and the individual human being.
The experience of modern war,
with all its associated barbarism, amply demonstrated a need for international law to recognise that individuals may need some protection against States and powerful governments able to command State machinery.The concept of protections for individuals is not without problems. For example, what form should the protections take? How should they be defined and, in the event of dispute, how should they be interpreted and, if necessary, enforced. These questions, and doubtless others, do not have easy answers and any system of "right-protection" is likely to be imperfect.
In the aftermath of World War 2, such difficulties did not deter the development of "human rights" as we now know them. The Universal Declaration of Human Rights was inspired by Eleanor Roosevelt (1884 - 1962) and stands as an enduring commitment to try to prevent the bleakest moments of history from happening again - (Amnesty - Universal Declaration).
In May 1949, the Council of Europe (CoE) was created and, today, has 46 Member States. Its primary role is to promote democracy, human rights and the rule of law across Europe and beyond.
The European Convention on Human Rights (ECHR) is the first convention adopted by the Council of Europe and is the cornerstone of all the Council's activities. It was adopted in 1950, entered into force in 1953, and according to the Council's website, ratification is a prerequisite for joining.
From the outset, a court was established to adjudicate on matters relating to the Convention but, until 1998, there was also a Commission on Human Rights which determined whether applications were admissible. examined cases, and sought friendly settlements. The Commissions' role was replaced by the restructuring of the European Court of Human Rights.
The European Convention (TEXT) comprises 59 articles and a number of Protocols (containing amendments to or additions to the original convention). The RIGHTS and FREEDOMS are set out in Section 1 Articles 1 to 18.
The "High Contracting Parties" (i.e. signatory States") undertake to abide by the final judgment of the Court in any case to which they are parties (see Article 46). Overall, the UK has a good record of compliance with such cases. When the European Court has decided against the UK, action has been taken to bring law within the UK into line with the court's ruling.
It is crucial to note that the Council of Europe is an entirely different body to the European Union (EU). The situation regarding EU accession to the European Convention on Human Rights is set out at EU accession to the ECHR ("46 + 1" group).
The Convention
The ECHR begins with a Preamble noting that the aim of the Council of Europe is the achievement
of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of Human Rights and Fundamental Freedoms.
The Preamble continues by stating that the fundamental freedoms are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend.
The Preamble also notes that the High Contracting Parties (i.e. the signatory States), in accordance with
the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention ...
Hence, the signatory States carry the primary responsibility for securing the rights in the Convention and, in doing so, the States enjoy a margin of appreciation but that margin is subject to the Court's supervision.
The margin of appreciation means each country has scope to make decisions on how the rights apply on that matter in their country. But each country still has to fulfill the ultimate objectives and purposes of the Convention - see British Institute of Human Rights - The Living Instrument and Margin of Appreciation Principles
A "Living" Instrument
The idea that the Convention is a "living instrument" arises from the case law of the European Court of Human Rights. The question was whether the Convention should be interpreted according to the understandings of the time when the convention was first adopted (1950s). Alternatively, could the convention be read to ensure that it continues to be relevant to present-day circumstances.
The British Institute of Human Rights comments - "Through its case-law, the European Court of Human Rights has interpreted the rights set out in the Convention, so that its protections apply today to situations that were totally unforeseeable, even unimaginable, at the time it was first signed. This includes issues related to new technologies, bioethics or the environment. The Convention also applies to societal or sensitive questions relating to things like terrorism or migration. This means that both the European Court of Human Rights and our courts in the UK can consider how different the way we live now is without having to rewrite the law."
The living instrument approach will, sometimes, lead to politicians claiming that the court has gone too far with an interpretation or that the court is "activist" and has expanded rights beyond what was originally intended.
The Rights
The Convention offers a package of rights and freedoms and, generally, signatory States do not pick and choose which rights to apply but reservations and derogations are possible.
Reservations are governed by Article 57 - "Any State may, when signing this Convention or when
depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this Article."
Derogations are governed by Article 15. This is headed " Derogation in time of emergency" and states that
1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention 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.
2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed."
The Convention secures:
- the right to life (Article 2)
- freedom from torture (Article 3)
- freedom from slavery (Article 4)
- the right to liberty (Article 5)
- the right to a fair trial (Article 6)
- the right not to be punished for something that wasn’t against the law at the time (Article 7)
- the right to respect for family and private life (Article 8)
- freedom of thought, conscience and religion (Article 9)
- freedom of expression (Article 10)
- freedom of assembly (Article 11)
- the right to marry and start a family (Article 12)
- the right not to be discriminated against in respect of these rights (Article 14)
- the right to protection of property (Protocol 1, Article 1)
- the right to education (Protocol 1, Article 2)
- the right to participate in free elections (Protocol 1, Article 3)
- the abolition of the death penalty (Protocol 13)
Rights are not necessarily absolute and, for the detail it is crucial to read each article.
For example, Article 8 states
Hence, States may "interfere" with the right so long as the interference is "in accordance with the law" AND is necessary in a democratic society in the interests of one of the stated items - e.g. national security. Plainly, this leaves room for considerable argument as to whether some restriction on the right is necessary in a democratic society.
The right of individual petition to the European Court of Human Rights
Article 34 of the Convention permits individuals to petition the court.
"The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right."
The right of individuals to petition the court dates from Protocol 4 to the Convention. For the UK, the right has applied since 1966.
This right is subject to a case being admissible and Article 35 sets out the admissibility criteria.
The Human Rights Act 1998
The UK's Human Rights Act 1998 came fully into force on 1 October 2000 and gave "further effect" to the rights and freedoms guaranteed under the European Convention on Human Rights.
A basic description of the Act is available at Liberty - The Human Rights Act 1998.
Essentially, the Act enabled individuals to directly defend their Convention rights in the UK courts and tribunals. It compels public organisations – including the Government, police, local councils and the courts – to apply convention rights.
In the event that the High Court (or above) considers that LEGISLATION (Act of Parliament) is incompatible with convention rights then the court may make a Declaration of Incompatibility. Such a declaration does NOT override the legislation but enables Ministers to bring forward remedial legislation - (section 10 and Schedule 2 of the Act).
The importance of Human Rights
There are many political voices calling for the UK to leave the ECHR and repeal the Human Rights Act 1998. Such calls arise more frequently in connection with immigration. Withdrawal would be highly problematic with major implications for the UK including serious implications for the Northern Ireland "Good Friday" agreement.
The ECHR offers protection for the basic rights of individuals. Only an exceptionally naive person would think that such rights were readily granted to individuals by benevolent rulers or Parliaments. History amply demonstrates the opposite and also shows that protection for rights is essential and rights cannot truly be said to exist if they cannot be enforced. History also shows how people can be persuaded to abandon their rights because of claims that rights stand in the way of action that politicians wish to take.
I do not claim that there are no problems with either the ECHR or the European Court of Human Rights. It can be sensibly argued that, in some respects, the court has gone too far and a possible example of that is the "Climate Change" cases and, in particular, Verein KlimaSeniorinnen Schweiz and Others v. Switzerland. In that case, the court found that the Convention encompasses a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life.
The system is imperfect but it is probably the best system of protection we are likely to get,
Reading and useful links
Universal Declaration of Human Rights
Statute of the Council of Europe
European Convention on Human Rights and European Convention (TEXT)
European Court of Human Rights
Travaux Preparatoires of the Convention
Parliament - Joint Committee on Human Rights
British Institute of Human Rights
Liberty - The Human Rights Act 1998
Each Other - (Rights Information)
UK Equality and Human Rights Commission - What is the European Convention on Human Rights
UK Human Rights Blog - Convention rights - a list of the Articles of the European Convention on Human Rights. You can click on the article itself for a description and analysis, or click the “posts” link after each article to see posts on the blog relating to that Article.
Strasbourg Observers - blog
28 April 2025
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