The Introduction of the ECHR 1950

Following the Second World War and the horrors against humanity that had followed it, the United Nations had been given the impetus that was required in order for them to create a modern international law of human rights. The driving force behind many Europeans’ decision to undertake this action derived from their personal experience of having suffered enemy occupation and the horrors that had been associated with the evil regimes that had been inflicted on their people as well as those from neighbouring states^[1]. These were highlighted to a further degree upon the completion of the Nuremberg Trials in 1946. Secondly, Europe after the Second World War had been ravaged, its economy was at an unprecedented low and the prospect of a further conflict between the East and the West, as communist regimes were initiated in Czechoslovakia, Poland, Hungary, Romania and Bulgaria, appeared to hover over Europe^[2]. It was at this point that the ‘iron curtain’ separated the European continent.

The explosion of the first soviet atom bomb and the signature of the Atlantic Pact in 1949 was early proof that Western Europe was seeking means to secure a collective source of security. Germany remained divided and Europe was classed as not much more than a narrow strip arching  from Norway to Sweden^[3]. There was therefore a lot to unite the democratic nations within Europe at the time that the Convention was born.

The Convention emerged at an early stage when proposals had been put forward by leading statesmen during the Second World War, which had later been followed up by non-governmental organisations^[4]. On 8^th May 1948 Winston Churchill presided over a gathering of non-governmental movements in The Hague in order to analyse the economic problems faced by the European Union^[5], a meeting which was attended by more than 750 delegates attended.

What was the aim of the ECHR 1950?

At this meeting, the desire to create a united movement on a more permanent basis was made clear. But the translation of the idea for the Convention and drafting it into reality, was much more difficult than had initially been anticipated. It could only be completed in terms that were acceptable to all of the States who would be signing themselves up to it. This in turn created political barriers that needed to be overcome.

The Convention was the primary initial achievement in creating a united organisation of the Member States which would be known as the Council of Europe^[6]. In July 1949 The European movement produced a 32-page publication entitled ‘European Convention on Human Rights’^[7] which was sent to the Council of Europe. The proposal was that the Convention would provide a moral basis and instrument which would push human rights and the maintenance of democracy to the forefront as well as cementing a political basis founded on democratic principles and a respect for human rights^[8]. This was for the States already a member of the Union but more so for those States who had yet to join the Union.

The Convention was adopted and signed by 10 Member States in 1950 and came into force in 1953 with essential features that would secure the protection of human rights. These encompassed a list of fundamental rights and freedoms, an obligation on states to secure these rights and freedoms, a system for enforcement, a right for individuals to take their government to the European Court of Human Rights if their human rights have been violated^[9].

What were the main changes to the law made by the ECHR 1950?

The European Convention on Human Rights is one of the most successful regimes that has been brought into force to protect human rights. The Convention covers many of the principles contained within the United Nations Declaration and almost every Article is qualified to some extent.

The majority of cases that have been brought to the European Court of Human Rights is as a result of a national or political entity violating the 1950 Convention^[10]. One of the main aims of the European Convention, as noted above is to protect human rights and a vital element in ensuring this is to keep a check on abuses of national governmental powers, which prior to the Convention individuals had no recourse to challenge. The ECHR protects civil and political rights with no sympathy towards the previous socialist tradition being accounted for at the time of it conception in 1950.  Prior to the ECHR, international law was a state based law with no place for individuals. The ECHR allowed for aggrieved individuals who had exhausted the legal system in their own country could make an application to the European Court^[11].

Whilst the ECHR is not a part of UK law, it has been used to assist decision making when dealing with ambiguities present in UK law. For example, Freedom of Expression contained within Article 10 has been noted as an expression of UK law on many occasions such as the Spycatcher^[12]case, Esther Rantzen^[13] libel damages case and Derbyshire County Council v Times Newspapers Ltd^[14]. Such cases are clear evidence that the Convention has become a part of British law.

Jacobs and White have observed that the main impact of the ECHR, not only for Britain but for Europeans as a collective, derives from the treatment of those who threaten or appear to threaten the state and national security, ‘the definition of torture and inhuman and degrading treatment under Article 3(9) have shaped state conduct, particularly in the methods for dealing with the threats of terrorist activity, and in procedures for considering the deportation or extradition of individuals’^[15].

Jacobs and White further note the extensive reach of the Convention and its influence, ‘there is hardly an area of State regulation untouched by standards which have emerged from the application of Convention provisions to situation presented by individual applicants’^[16].

Bibliography

Cases

Attorney General v Guardian Newspapers [1987] 3 ALL E.R. 316

Derbyshire County Council v Times Newspapers Ltd [1993] 2 WLR 449, 451

Rantzen v Mirror Group Newspapers (1986) CA1 APR 1993

Legislation

The Atlantic Pact 1949

The Convention for the Protection of Human Rights and Fundamental Freedoms1950

Books

Bates E, The Evolution of the European Convention of Human Rights from its inception to the creation of a Permanent Court of Human Rights (Oxford University Press, 2010, 1^st edn)

Christoffersen J and M Madsen, The European Court of Human Rights Between Law and Politics (OUP, 2011, 1^st edition)

Davies H, Human Rights Law Directions, (Oxford University Press, 3^rd edn, 2013)

Douzinas C, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Routledge-Cavendish, 2008, 1^st edn)

Jacobs FG and RCA White, The European Convention on Human Rights, (OUP, 1996, 2^nd edition)

The European Movement and the Council of Europe, (London: Hutchinson & Co, 1949, 1^st edn)

Journals

Harris D, Law of the European Convention of Human Rights, (1996) L.Q.R. 112, 684-686

Reports

European Convention of Human Rights, INF/5/E/E, (1949)