introduction Flashcards
what is the theory of human rights law?
. protect individual from the state or its agents
. rights are protected in two main ways:
. positive obligations- oblige the state to act in a certain way to protect rights
. negative obligations- oblige state to avoid doing something to protect rights
what is a human right?
. a guaranteed birth right
. guaranteed to the individual by the state
where have human rights come from in the UK?
. developed in a piecemeal manner including:
. key concepts such as natural justice
. key legal documents- Magna Carta, bill of rights
. conventions
. judicial decisions- Bushell’s case
. statute (HRA 1998)
when did human rights become supranational?
. following surrender of Nazi Germany + the discovery of what happened, the Universal Declaration was formed
rights are inalienable and indivisible
. inalienable- cannot be sold or removed
. indivisible- cannot be separated as they are kept together
respect for dignity
. all humans have an inherent + intrinsic worth
. a persons dignity is based on their persona autonomy or ability to make decisions
. links strongly to democracy + giving people the ability to self-govern
. recognises tolerance
pluralism
. to prevent the atrocities of the 19th century, states should recognise the value of the minorities alongside majorities
>state should avoid imposing its own views or ideology on the population as a whole (avoid indoctrination)
developments in the UK
. 1949- inspired by the Universal Declaration, the Council of Europe was established to enshrine human rights law across Europe
. led to forming European Convention of Human Rights, which echoed the Universal Declaration in many areas
. Britain helped to draft the declaration but did not initially sign up to it
theoretical underpinning of the ECHR- rule of law
. state should have its power + discretion limited by law
. state should act according to the law
. the convention draws inspiration from this theory (Engel v Netherlands)
theoretical underpinning of the ECHR- democracy
. state should be democratic to give people;e the right to influence the gov- links heavily with article 10 + 11
theoretical underpinning of the ECHR- separation of powers
. clear separation between branches of government so no one party has too much power
-executive, legislature + judiciary
European Court of Human Rights
. a supranational court- its decisions affect more than 1 country
ECHR- balancing rights
. the court must balance ‘between the demands of the general interests of the community and the requirements of the individual’s fundamental rights… the search for the balance is inherent in the whole convention.’- Sporrong and Lonnroth v Sweden as seen in Campbell v MGN
ECHR- proportionately
. as HR law protects fundamental rights, any legitimate interference must be proportionate
>means the state should limit interference + should be for good reason + have adequate safeguards
ECHR- margin of appreciation
. ECHR realises the state is the one to protect human rights + is in the best position to do this> depending on the right, the ECHR applies a wide or narrow margin
. narrow margin of appreciation- where a right is vital or goes to the heart of a person’s identity, the court places less emphasis on the state’s view> harder for the state to justify any interference with the right- Dudgeon v UK
. wider margin- where a right could impact on a country’s national identity or priority, the court adopts a wider margin> easier for the state to interfere with a right in the specific circumstances- Otto Preminger v Austria
