development of human rights in the uk Flashcards
booklet 2
when was the universal declaration of human rights formally adopted and by who
December 1948
by the UN
what does article 1 of the udhr state
‘All human beings are born free & equal in dignity & rights’
how many articles are there and what do they set out (litch don’t deep this)
30 Articles in total setting out 30 fundamental human rights, available to all human beings across the world
what are 2 issues with the udhr
1) UDHR is not a treaty so it doesn’t create legally binding obligations on UN member states
2) Nations disagreed on types of rights to include:
USA wanted mostly political rights such as right to vote; speak freely; choice of religion; not to be unlawfully detained
Soviet Union argued human rights were all about social/economic rights such as right to work, health care, education
after the udhr, what was drafted by 1950
General Assembly of UN does not have power to make international law
what act of the ECHR established the ECtHR
A.19 European Convention on Human Rights (ECHR)
what is the role of the ECtHR
Hears applications alleging that state is in breach of ECHR provision
Individual’s case is only heard if they have used all domestic remedies
ECtHR can issue judgements as well as advisory opinions
Court’s jurisdiction is recognised by all 47 member states of Council of Europe
how many judges are there
47- 1 from each state
what are 2 of the characteristics of these judges
must come from high judicial office in their own country & be of high moral character
retire at age 70
what are 3 of the rules for these judges
they’re elected whenever the term of a current judge expires, or when a new state subscribes to ECHR
cannot hear or decide cases if they have a family or professional relationship with any of the parties
can only be dismissed from office if other judges agree by 2/3 majority that he/she has failed to fulfil conditions of the job
Relationship with the European Court of Justice
EU institutions must respect human rights under Article 6 Treaty of Nice
all members of the EU have also signed the ECHR so the ECJ (court for EU law matters) does refer to ECtHR case law & it treats ECHR as if it’s part of EU legal system
Relationship to National Courts
Most of the 47 signatories have incorporated the ECHR into national law (like the HRA with the UK) so issues are dealt with in the national courts
An individual can only take a case to the ECtHR once they have (exhausted) used all avenues and remedies in national court
what are the 3 approaches to interpretation
balancing of rights
proportionality
margin of appreciation
what is proportionality
unique to human right cases
asks whether the action taken by the government was “proportionate” in the circumstances which refers to whether the action is equally balanced with the harm it was trying to prevent.
E.g. Was the government action of lockdown proportionate to preventing the harm caused by Covid?
what 3 questions should be asked when considering proportionality
*If anything less restrictive could have been done instead?
*Were appropriate reasons given for the actions taken?
*Were safeguards inadequate?
what is the margin of appreciation
how much leeway states are given to limit rights
why is the margin of appreciation needed
It recognises that across the 47 nations there may be differing ideas in terms of priorities and cultural values
Therefore the ECtHR will give each nation some flexibility to interpret rights in a different way
The margin will vary from right to right, depending on the importance attached to the absolute protection of a right
what is a wide margin
states allowed more flexibility to limit rights. This is more likely to be the approach given for articles where there is no European consensus on an issue, or where national security is involved
what is a narrow margin
less flexibility to limit rights. This is used when there is a European consensus on the issue so there is no need to allow countries differing levels of freedom
What happened in the case of Otto-Preminger Institute v Austria (1994)?
Austria banned a film which included erotic scenes between religious figures
The ban was allowed because the court accepted the religious nature of Austria as a country
In a more secular nation the ban may have been overruled
