The Success Of The ECHR

Author:Gerard Sadlier
Position:An earlier version of this essay won the UCC FLAC Essay Competition 2006.I would like to thank Prof Maeve McDonagh for her constructive comments and Ms Ciara Kennefick for her help during the editorial process.The views expressed and any errors remain my own
Pages:65-85
Cork Online Law R eview 2007 7
Sadlier, The Succe ss of the ECHR
65
THE SUCCESS OF THE ECHR
The ECHR – A Victim of its Own Success
Gerard Sadlier*
The lamps are going out all over Europe; we shall not see them lit again in
our lifetime1
A INTRODUCTION
Before the outbreak of World War I, international law generally
regarded a state’s relations with its citizens as a purely internal matter.2 States
did ‘interfere,’3 to guard their national interests4 or to protect minorities with
which the state felt a particular affinity5 but such meddling was the exception
that proved the rule of state sovereignty.6 Yet, as Sir Edward Grey’s prophetic
words (cited above) suggest, World War I was to shatter this old order, as
Europe entered a period marked by cataclysmic conflicts in which civilians
were often treated with deliberate brutality by their own governments. Such
atrocities, exemplified by the horrors which came to light at the end of the
Second World War, led to a general acceptance of the need for and value of
human rights, an ideology which proclaims that all human beings have an
essential worth, simply by virtue of their humanity.7
This view was espoused by the United Nations, with the adoption of the
Universal Declaration of Human Rights by the UN General Assembly on 10
December 1948. For many, this declaration represented a “… quantum leap in
* An earlier version of this essay won the UCC FLAC E ssay Competition 2006.I would like to
thank Prof Maeve McDonagh for her constructive com ments and Ms Ciara Kennefick for her
help during the ed itorial process.The views express ed and any errors remain my own.
1 Per Sir Edward G rey then British Foreign Secretary , August 2 1914.These famous line s were
delivered as it bec ame inevitable that Britain would be forced to enter World War I. Se e
http://wwwa.britannica.com/eb/article-9038083 [last accessed on 1 March 2006].
2 Kantsin I, “No Ri ghts without Remedy: in Search of an ICHR”, Accessed Online at
www.eumap.org [ last accessed on 20 February 2007 ]
3 Usually through m ilitary action or heavy diplomati c pressure backed with the threat o f
armed force.
4 Thus Britain took control of Egypt and what is now Sudan in the latter part of the 19t h
century to safegua rd the Suez Canal and the route t o India.
5 The prime examp le being Russia’s view of herself a s the ‘mother of the Slavs’ of south
eastern Europe the n under Turkish rule. In truth no country pursued any such campa ign
except when it pro ved expedient, while even the mos t obvious campaigns of self-
aggrandisement w ere often ‘sold’ as altruistic wars o f liberation. (In the light of Rwan da,
Bosnia, Darfur and Iraq a cynic might wonder wheth er much has changed in a hundred years
of international re lations.)
6 For an excellent a ccount of the whole period, see ge nerally Thompson D., Europe sin ce
Napoleon, (Harmo nsworth: Penguin, 1966).
7 Some consider tha t these rights inhere in the indivi dual by virtue of some theistic hig her law,
while others take a more secular view of the basis of human rights, contrast Kennedy C J’s
famous dissent in State (Ryan) v Lennon [1935] I.R . 170 with that of Henchy J in Nor ris v AG
[1984] IR 36. Mos t modern positivists would also ac cept that law ought to embody a c oncept
of fundamental rig hts, though it need not do so to b e valid
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Sadlier, The Succe ss of the ECHR
66
international relations,”8 since States could no longer assert that their
domestic policy was entirely “… their own business.”9 Yet the UDHR remained
(and indeed remains) an aspirational document. For Europeans, determined
not to revisit the tragic mistakes of the past, this was insufficient. Thus, the
Council of Europe drew up the European Convention on Human Rights and
Fundamental Freedoms10 to express the signatories’ common values and to
ensure that the ‘High Contracting Parties’ accorded an irreducible minimum
set of civil and political rights to all who lived within their various
jurisdictions. Perhaps most significantly, States that did not meet their
obligations could be called to account before an independent international
body.11
Just over fifty years after it came into force in 1953,12 the ECHR
remains the ‘cornerstone’ of the European system for the protection of human
rights.13 Given its continuing importance, it seems appropriate to examine the
challenges currently facing the ECHR and to question the commonly held
view that these have arisen because of the Convention’s startling successes.14
In particular, concern surrounding the court’s judicial activism will be
considered, as will the reforms contained in Protocols 11 and 14 to the ECHR.
Further procedural reforms mooted by a committee of ‘wise persons’
(experts), established by the Council of Ministers to assure the convention’s
long term future, also merit brief scrutiny.
B JUDICIALISATION OF THE ECHR: UNCERTAIN BEGINNING S
At the inception of the ECHR a number of bodies, collectively known as
the Strasbourg Organs, were established to ensure the effective protection of
the rights guaranteed by the Convention. These included a Parliamentary
Assembly, made up of members of the High Contracting Parties Legislatures,
a (now defunct) Commission that was to deal with alleged violations of the
Convention and a Committee of Ministers consisting of the foreign ministers
of the member states. There was also a part time European Court of Human
Rights (the ECtHR), composed of judges from the contracting parties. This
body was established by virtue of article 19 ECHR to give final interpretations
of the Convention, thus ensuring that the contracting parties fulfilled their
Convention obligations.
8 Per Robinson M, “Human Rights at the Dawn of the 21st Century”, 15 Human Rights
Quarterly p. 629 a t p. 630. (Hereinafter Robinson).
9 Ibid.
10 The ECHR.
11 Initially this could o nly be done by other states party, see below.
12 The ECHR was sign ed on 4 November 1950 and was r atified by the required number of
states by 1953.
13 This role has expand ed in recent years as many forme r communist countries have joined the
Council of Europe and ratified the ECHR
14 Put forward by Heff ernan, L, A “Comparative View of Individual Petition Procedures un der
the European Con vention on Human Rights and the International Covenant on Civil and
Political Rights”, 1 9 Human Rights Quarterly p. 78 a t pp. 79-81.
(http://muse.jhu.edu/journals/human_rights_quarterly/v019/19.1heffernan.html)
(Hereinafter Heffe rnan). [Last Accessed on 20 Febru ary 2007.]

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