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.]