Regional human rights mechanisms Flashcards
Some benefits of regional mechanisms
. More common ground
. More effective
. Fewer states so easier for general consensus
.Broader scope of substantive rights
A criticism of regional mechanisms?
. They undermine universality
. Created by states
. Can’t ensure compliance
Main regional organisations?
. Council of Europe
. Organisation of American states
. African Union
What does the council of europe aim to achieve?
Greater unity between members to facilitate economic and social progress
What is the council of europe made up of?
. Congress of Europe
. European convention of human rights
. European court of human rights
When was the congress of europe established and where?
The Hague, 1949
When did the convention of human rights come into force?
1954
What does the convention cover?
civil and political rights- not social or economic
Is judgement of the european courts legally binding?
yes
Who was expelled from the congress of Europe in 2022?
Russia
What ECHR protocols are compulsory in the ECtHR?
11 (individual claims) and 14
The interpretation of the ECHR
Human rights protection and maintenance of a democratic society
Why do we need to interpret the ECHR?
To find the most appropriate interpretation so we can achieve the object of the treaty properly
Which case shows interpretation of the ECHR?
Golder v UK
Which case shows that the ECHR is a living instrument?
Tyrer v UK
What do we mean by living instrument?
Something that can be interpreted to fit present day values/conditions
What sort of changes has interpretation of the ECHR brought about?
Same sex rights, children born out of wedlock, privacy issues etc
What is the principle of proportionality?
The restriction of individuals’ ECHR rights for the greater public good
An example of the principle of proportionality?
Covid-19 pandemic
Why is the principle of proportionality important?
to find a fair balance between individual freedoms and public interest where necessary
What is the margin of appreciation?
Where member states have restricted individual human rights but for the greater public good, and the ECtHR decide whether they could bend the rules for the breach as it was necessary or not
In what instances would there be a wider margin of appreciation?
Public emergencies, national security protection etc
What is the principle of subsidarity?
Says it is only necessary for the EU to intervene where they can act more effectively than a member state could in securing rights for that country
What were the margin of appreciation and principle of subsidiarity developed by?
ECtHR
What is a negative obligation?
The state has an obligation NOT to do something- eg not to interfere with rights
What is a positive obligation?
The state must DO something- eg secure rights
When may states derogate from the convention?
In a time of war or public emergency threatening the life of the nation
Conditions for derogation?
. Only allowed where absolutely necessary
. Can’t derogate from rights like prohibition of torture
Which protocol protects individual complaints procedures?
Protocol 11
What needs to be looked at before an individual can bring a claim under protocol 11?
Admissability and jurisdiction
What is admissability?
The conditions of the case such as who is able to bring the claim and what kind of violation it is for
What is jurisdiction?
Was the vicitm directly affected or is there a sufficient link?
Which case changed that the ECHR and the ECtHR doesn’t apply extra-territorially?
Al-Skeini and others vs UK
What does the case of Al-Skeini tell us?
That the ECHR can apply extra-territorially but it must be decided case by case, but it should be the job of that state if the rights violation is in their control
Challenges of the ECtHR?
. Interpret rights too far and expand them by doing this
. enforcement is an issue
. protocol 14- cases dismissed is not enough damage suffered
Pros of the ECHR
. incluenced change in law
. Remedy when national systems fail
. Keeps states under check
Negs of ECHR
Still a treaty with limitations
