Introduction to Human Rights

Question 1

What US Constitution contained ‘the first unequivocal, lasting and, above all, judicially enforceable rights document?’

Answer 1

the Constitution of the new United States of America (1787)

- Drew on the Declaration of Independence (1776).

Question 2

Is the UDHR legally binding?

Answer 2

No - only a resolution of the General Assembly of the UN and as such is not ‘law’.
- But note - argued that it is customary international law.

Question 3

When was the CoE established? And the ECHR?

Answer 3

1949 - 1948 (into force 1953).

Question 4

When did the UK gave individuals the right to lodge ‘complaints’ under the ECHR if they had exhausted all domestic legal remedies?

Answer 4

1966

Question 5

How many Member States of the CoE?

Answer 5

47. Only European country not a member is Belarus.

Question 6

What are the main functions of the CoE (in addition to overseeing the ECHR)?

Answer 6

1. Acting as a political anchor and human rights watchdog for Europe’s post-communist democracies;
2. Assisting the countries of central and eastern Europe in carrying out and consolidating political, legal, and constitutional reform in parallel with economic reform;
3. Providing know-how in areas such as human rights, local democracy, education, culture, and the environment.

Question 7

What’s a monist legal system? What system of law is superior?

Answer 7

Mon means ‘one’, and these systems treat all forms of law as belonging to a single, binding legal system. That is, they treat international law as binding on their domestic legal systems, without any further enactment at the domestic level.
- International law is superior when there is a clash.

Question 8

What’s a dualist legal system? Example of country?

Answer 8

UK is dualist.
The ‘two’ legal orders as wholly separate. The UK state may be bound by international law, and the UK government may be bound too in terms of its dealings with other states and governments, but the court system of the UK is not bound in the same way.

Question 9

What does this mean about when international law can be applicable in the UK? (2)

Answer 9

1. Where the UK itself is a party to proceedings before an international court, to which jurisdiction it has agreed to submit (e.g. the European Court of Human Rights, the International Criminal Court)
2. Where the UK has incorporated international legal rules into its domestic legal system through an enabling act of Parliament.

Question 10

How does the ECHR have effect in the UK?

Answer 10

Incorporated into UK domestic law through the Human Rights Act 1998 (‘HRA’).
Individuals can also petition to the ECtHR.

Question 11

What are the three categories of rights under the ECHR?

Answer 11

Absolute rights: cannot be lawfully interfered with by the state
Limited rights: can in some circumstances be lawfully interfered with
Qualified rights: can be lawfully interfered with provided certain legal tests are met

Question 12

What Arts are qualified rights?

Answer 12

Articles 8–11 are qualified Convention rights.
The first paragraph of these articles sets out the substantive right(s) guaranteed by the Convention.
Qualified by second paragraph.

Question 13

What three circumstances need to apply to be able to interfere with qualified rights?

Answer 13

• > The interference was prescribed by, or in accordance with, the law.
• > The interference was in pursuit of a legitimate aim.
• > The interference was necessary in a democratic society.

Question 14

Why the HRA in 1998?

Answer 14

1. Followed judgments and recommendations of ECtHR
2. BUT UK Parliament and UK judiciary never developed laws to match this commitment…
   This and the desire for a more practical and efficient system of rights protection and enforcement highlighted the need.

Question 15

What rights from ECHR are incorporated by HRA 1998? (11)

Answer 15

Article 2: Right to life
Article 3: Freedom from torture and inhuman or degrading treatment or punishment
Article 4: Freedom from servitude
Article 5: Right to liberty and security
Article 6: Right to a fair trial
Article 7: No punishment without law
Article 8: Right to respect for private and family life, home and correspondence
Article 9: Freedom of thought, conscience and religion
Article 10: Freedom of expression and association
Article 12: Right to marry and found a family
Article 14: Prohibition against discrimination

Question 16

What sections of the HRA allow claimants (victims of Convention rights) to enforce rights in UK domestic courts?

Answer 16

Section 3(1): Legislation (whenever passed) should, as far as it is possible to do so, be interpreted in a way which is compatible with Convention rights.
Section 4(2): If a court considers that legislation is incompatible with a Convention right, it may make a declaration of incompatibility.
Section 6(1): Public authorities, including courts and tribunals, are required to act in a way which is compatible with Convention rights.

Question 17

What three categories of Defendant under HRA s 6?

Answer 17

1. Core public authorities (e.g. government departments and local government)
2. A body or person carrying out functions of a public nature (with the exception of Parliament)
3. Court or tribunal

Question 18

What’s meant by the “horizontal effect of the HRA”?

Answer 18

Courts and tribunals are compelled to act (decide cases) in a way which is compatible with Convention rights, so courts are required to balance the competing Convention rights of individuals.