The Definition of Human Rights and Historical Stages

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human rights convention

The Definition of Human Rights and Historical Stages

1. Human Rights - Definition

Human rights are rights which some hold to be "inalienable" and belonging to all humans. They are necessary for freedom and the maintenance of a "reasonable" quality of life.

If a right is inalienable, that means it cannot be bestowed, granted, limited, bartered away, or sold away (e.g., one cannot sell oneself into slavery). The issue of which rights are inalienable and which are not (or whether any rights are inalienable rather than granted or bestowed) is an ancient and ongoing controversy. Rights may also be non-derogable (not limited in times of National Emergency)--these often include the right to life, the right to be prosecuted only according to the laws that are in existence at the time of the offence, the right to be free from slavery, and the right to be free from torture.

2. Universal Declaration Of Human Rights

In 1948, the United Nations created the Universal Declaration of Human Rights. This Declaration introduced the notion in the public realm that rights are universal, inalienable, and inherent to the well-being of an individual. Specifically, the Declaration limits the behaviour of the state, which now has duties to the citizen (rights-duty duality). The roots of this notion can be drawn as far back as the Ancients (the role of the individual in the state) but the idea of civil and political rights stems from liberal freedoms advocated by John Stuart Mill in "On Liberty". Economic, Social and Cultural Rights can be traced back to Hegel's "Elements of the Philosophy of Right".

The main content of the Declaration was later made into two legally binding Covenants: International Covenant on Civil and Political Rights (opened for signature 1966, entered into force March 23, 1976). And the International Covenant on Economic, Social and Cultural Rights (opened for signature 1966, entered into force January 3, 1976).

Other Human Rights Conventions of note include: Convention on the Prevention and Punishment of the Crime to Genocide (entry into force: 1951), The Convention against Torture (entry into force: 1984),the International Convention on the Elimination of All Forms of Racial Discrimination (entry into force: 1969) ,The Convention on the Elimination of All Forms of Discrimination against Women (entry into force: 1981), UN Convention on the Rights of the Child (entry into force: 1989), and the Rome Statute for International Criminal Court (entry into force: 2002).

3. Origins of rights

Human rights are typically divided into two categories: negative human rights (rights to be free from) and positive (rights to) although other categorisations exist. Negative human rights follow mainly from the Anglo-American legal tradition, and are rights which denote actions that a government should not take. These are codified in the United States Bill of Rights, the English Bill of Rights and the Canadian Charter of Rights and Freedoms and include freedoms of speech, religion and assembly.

Positive human rights follow mainly from the Rousseauian Continental European legal tradition, and rights that the state is obligated to protect and provide. Examples of such rights (not all are universally agreed upon) include: the rights to education, to a livelihood, and legal equality. Positive rights have been codified in the Universal Declaration of Human Rights and in many 20th century constitutions. The origin of modern positive rights in international law may be traced to the creation of the International Labour Organization in 1919 as a Western response to the socialist ideology of the Russian Revolution of 1917.

A categorisation offered by Karel Vasak is the three generations of human rights: first-generation civil and political rights (right to life and political participation), second-generation economic, social and cultural rights (right to subsistence) and third-generation solidarity rights (right to peace, right to clean environment). Out of these generations, the third generation is the most debated and lacks both legal or political recognition.

Some theorists discredit these divisions by claiming that rights are interconnected. Arguably, for example, basic education is necessary for the right to political participation.

Aside from the international legal human rights framework, there are several possible sources of rights thinking. One justification stems from natural law. The theory espoused by the US Declaration of Independence and ingrained in Anglo-American legal thought is that rights arise from a divine Creator, and are thus a part of a moral philosophy. Religious societies tend to try to justify human rights through religious arguments. For example, liberal movements within Islam have tried to use the story of Adam in the Qur'an to support human rights in a Muslim context.

4. Human Rights Controversies

There are a number of controversies regarding human rights including:

1. Are human rights political, moral or legal entities (or all three at the same time)?

2. Is there or should there be a hierarchy of human rights?

3. Do human rights impede on state sovereignty? What if the state itself has ratified international conventions?

4. Should human rights be used as a context for economic or military intervention? (Often leads to a worsening of the human rights situation in the target country)

5. Questions of Cultural Relativism--e.g. "Political participation is not a part of African culture. Who are you to say that we should have political participation?" These arguments can also be made on religious basis "In our religion marriages have always been arranged, why should we not continue this practise?" Some arguments claim that human rights policies are a form of form of imperialism in which powerful countries dictate which rights they consider most important against less powerful countries. The increasing number of third-world states parties to international human rights treaties has made these arguments weaker but not disappear altogether.

6. Who should hold the moral duty to uphold rights? For civil and political rights, the answer is the state but it is not quite so clear who should be responsible for promoting economic, social and cultural rights (do we have a global duty). This debate mirrors debates between communitarianism and cosmopolitanism.

7. Which rights should be defined as fundamental human rights? Should all human rights be considered equal?

5. European Court of Human Rights - History and development of the Convention system

A. A system in continuous evolution

1. The Convention for the Protection of Human Rights and Fundamental Freedoms was drafted by the member States of the Council of Europe. It was opened for signature in Rome on 4 November 1950 and came into force in September 1953. Taking as their starting-point the 1948 Universal Declaration of Human Rights, the framers of the Convention sought to pursue the aims of the Council of Europe through the maintenance and further realization of human rights and fundamental freedoms. The Convention represented the first step towards the collective enforcement of certain of the rights set out in the Universal Declaration.

2. In addition to laying down a catalogue of civil and political rights and freedoms, the Convention set up a mechanism for the enforcement of the obligations entered into by Contracting States. Three institutions were entrusted with this responsibility: the European Commission of Human Rights (set up in 1954), the European Court of Human Rights (set up in 1959) and the Committee of Ministers of the Council of Europe, the latter being composed of the Ministers for Foreign Affairs of the member States or their representatives.

3. There are two types of application under the Convention, inter-State and individual. Applications of the first type have been rare. Prominent examples are the case brought by Ireland against the United Kingdom in the 1970 relating to security measures in Northern Ireland, and several cases brought by Cyprus against Turkey over the situation in northern Cyprus. Two inter-State cases are currently pending before the Court, Georgia v. Russia (nos. 1 and 2).

4. The right of individual petition, which is one of the essential features of the system today, was originally an option that Contracting States could recognize at their discretion. When the Convention came into force, only three of the original ten Contracting States recognized this right. By 1990, all Contracting States (twenty-two at the time) had recognized the right, which was subsequently accepted by all the central and east European States that joined the Council of Europe and ratified the Convention after that date. When Protocol No. 11 took effect in 1998, recognition of the right of individual petition became compulsory. In the words of the Court, “individuals now enjoy at the international level a real right of action to assert the rights and freedoms to which they are directly entitled under the Convention” [1] this right applies to natural and legal persons, groups of individuals and to .non-governmental organizations.

5. The original procedure for handling complaints entailed a preliminary examination by the Commission, which determined their admissibility. Where an application was declared admissible, the Commission placed itself at the parties' disposal with a view to reaching a friendly settlement. If no settlement was forthcoming, it drew up a report establishing the facts and expressing an opinion on the merits of the case. The report was transmitted to the Committee of Ministers.

6. Where the respondent State had accepted the compulsory jurisdiction of the Court (this too having been optional until Protocol No. 11), the Commission and/or any Contracting State concerned by the application had a period of three months following the transmission of the report to the Committee of Ministers within which to bring the case before the Court for a final, binding adjudication including, where appropriate, an award of compensation. Individuals were not entitled to bring their cases before the Court until 1994, when Protocol No. 9 came into force and amended the Convention so as to enable applicants to submit their case to a screening panel composed of three judges, which decided whether the Court should

Take it up.

If a case was not referred to the Court, the Committee of Ministers decided whether there had been a violation of the Convention and, if appropriate, awarded “just satisfaction” (compensation) to the victim. The Committee of Ministers also had responsibility for supervising the execution of the Court's judgments. When it came into force on 1 November

1998, Protocol No. 11 made the Convention process wholly judicial, with the Commission's function of screening applications transferred to the Court itself, whose jurisdiction became compulsory. The Committee of Ministers' adjudicative function was abolished.

The Protocols to the Convention

7. Since the Convention's entry into force, fourteen Protocols have been adopted. Protocols Nos. 1, 4, 6, 7, 12[1], and 13 added further rights and liberties to those guaranteed by the Convention. Protocol No. 2 conferred on the Court the power to give advisory opinions, a little-used function that is now governed by Articles 47 to 49 of the Convention [2] as noted.

Above, Protocol No. 9 enabled individuals to seek referral of their case to the Court. Protocol No. 11 transformed the supervisory system, creating a single, full-time Court to which individuals have direct recourse. Further amendments to the system are contained in Protocol No. 14 (see below). The other Protocols, which concerned the organization of and procedure

Before the Convention institutions, are of no practical importance today.

B. Mounting pressure on the Convention system

8. In the early years of the Convention, the number of applications lodged with the Commission was comparatively small, and the number of cases decided by the Court was much lower again. This changed in the 1980s, by which time the steady growth in the number of cases brought before the Convention institutions made it increasingly difficult to keep the length of proceedings within acceptable limits. The problem was compounded by the rapid increase in the number of Contracting States from 1990 onwards, rising from twenty-two to the current total of forty-seven. The number of applications registered annually with the Commission increased from 404 in 1981 to 4,750 in 1997, the last full year of operation of the original supervisory mechanism. By that same year, the number of unregistered or provisional files opened annually in the Commission had risen to over 12,000. Although on a much smaller scale, the Court's statistics reflected a similar story, with the number of cases referred annually rising from 7 in 1981 to 119 in 1997.

9. At the end of 2009, 119,300 allocated applications were pending before the Court. Four States account for over half (55.7%) of its docket: 28.1% of the cases are directed against Russia, 11% of the cases concern Turkey, 8.4% Ukraine and 8.2% Romania.

Applications allocated to a judicial formation (1955-2009)

* European Commission of Human Rights

The following graph sets out the number of Court judgments prior to Protocol No. 11 and then the annual total for the period 1999-2009. The old Court delivered less than 1,000 judgments. The number now exceeds 12,000.

Judgments (1959-2009)

In 2009, the highest number of judgments concerned Turkey (356), Russia (219), Romania (168) and Poland (133). These four States accounted for more than half (52%) of all judgments. On the other hand, half of the Contracting States had less than 10 judgments against them during the year.

The number of requests for interim measures (Rule 39 of the Rules of Court), though lower than in 2008, remained very high, with 2,399 requests received in 2009, of which 654 were granted.

10. It has long been evident that the number of applications to the Court is beyond the institution's capacity, leading to excessive delays for many applicants. It was for this reason that the Contracting States drafted Protocol No. 14, which was opened for signature in May 2004. The contents of this instrument are summarised below. Primarily it aims to augment the capacity of the Court by introducing smaller judicial formations, thereby freeing up more judicial time to devote to the cases of greater legal importance or urgency. It was estimated at the time that the effect of these changes would be an increase in the Court's output of approximately 20-25%. In the two years following the Protocol's opening for signature, it was ratified by all of the Contracting States but one, Russia. The matter remained pending within the Duma for several years and was resolved very recently, when the Duma gave its approval to the Protocol on 15 January 2010. The Protocol was ratified on 18 February 2010 and entered into force on 1 June 2010 in respect of Russia and the forty-six other States Parties to the Convention.

11. In fact, two of the reforms contained in Protocol No. 14 have been provisionally applied by the Court since the middle of 2009. At the ministerial session of the Committee of Ministers held in Madrid in May, the Contracting States reached a consensus (the Madrid Agreement) whereby they could consent to (i) the application of the single-judge procedure to cases taken against them and (ii) the giving of judgments by three-judge Committees in cases that can be decided on the basis of well-established case-law. Simultaneously, Protocol No. 14 bis was adopted, containing the same two measures. By the end of 2009, eighteen Contracting States had accepted these procedures by one or the other means. Further details about their operation are given below.

12. The statistics set out above make clear the tremendous strain on the Convention system, and the critical situation of the Court at the present time. Unless there is rapid action to reform and strengthen the system, the situation will continue to deteriorate. Speaking at the ceremony to mark the 50th anniversary of the Court in January, the President of the Court proposed the convening of a high-level conference on the future of the European Convention on Human Rights. The proposal was taken up by the Swiss government as the principal event of its chairmanship of the Committee of Ministers (November 2009-May 2010), and the conference took place in Interlaken on 18-19 February 2010.

C. Organisation of the Court

13. The provisions governing the structure and procedure of the Court are to be found in Section II of the Convention (Articles 19-51), now to be read in the light of the Madrid Agreement or Protocol No. 14 bis. The Court is composed of a number of judges equal to that of the Contracting States[1]. Judges are elected by the Parliamentary Assembly of the Council of Europe, which votes on a shortlist of three candidates put forward by the States. The term of office is six years, and judges may be re-elected. Their terms of office expire when they reach the age of 70. Judges remain in office until replaced.

Judges sit on the Court in their individual capacity and do not represent any State. They cannot engage in any activity which is incompatible with their independence or impartiality, or with the demands of full-time office. These points are developed in the resolution on judicial ethics adopted by the Court in 2008.

14. The Plenary Court has a number of functions that are stipulated in the Convention. It elects the office holders of the Court, namely, the President, the two Vice-Presidents (who also preside over a Section) and the three other Section Presidents. In each case, the term of office is three years. The Plenary Court also elects the Registrar and Deputy Registrar. The Rules of Court are adopted and amended by the Plenary Court. It also determines the composition of the Sections.

15. Under the Rules of Court, every judge is assigned to one of the five Sections, whose composition is geographically and gender balanced and takes account of the different legal systems of the Contracting States. The composition of the Sections is changed every three years.

16. The great majority of the judgments of the Court are given by Chambers. These comprise seven judges and are constituted within each Section. The Section President and the judge elected in respect of the State concerned sit in each case. If the respondent State in a case is that of the Section President, the Vice-President of the Section will preside. In every case that is decided by a Chamber, the remaining members of the Section who are not full members of that Chamber sit as substitute members.

17. Committees of three judges are set up within each Section for twelve-month periods. Their function is to dispose of applications that are clearly inadmissible. Also, as mentioned above, these Committees can now give judgment in cases that can be decided on the basis of well-established case-law, where the respondent State has accepted this procedure.

The single-judge formation was introduced on 1 July 2009, and, in relation to those States that have accepted it, has taken over the function previously exercised by Committees. The President of the Court decides on the number of judges to be appointed as single judges, the duration of the appointment and the Contracting State in relation to which they will operate [1]. As of 1 January 2010, seventeen members of the Court have been appointed to this function. They continue to carry out their normal duties within their Sections. Each single judge is assisted by a non-judicial rapporteur. These are appointed by the President of the Court from among experienced Registry lawyers and operate under his authority.

18. The Grand Chamber of the Court is composed of seventeen judges, who include, as ex officio members, the President, Vice-Presidents and Section Presidents. The Grand Chamber deals with cases that raise a serious question of interpretation or application of the Convention, or a serious issue of general importance. A Chamber may relinquish jurisdiction in a case to the Grand Chamber at any stage in the procedure before judgment, as long as both parties consent.

Where judgment has been delivered in a case, either party may, within a period of three months, request referral of the case to the Grand Chamber. Such requests are considered by a panel of five judges, which includes the President of the Court. Where a request is granted, the whole case is reheard.

D. Procedure before the Court

1. General

19. Any Contracting State (State application) or individual claiming to be a victim of a violation of the Convention (individual application) may lodge directly with the Court in Strasbourg an application alleging a breach by a Contracting State of one of the Convention rights. A notice for the guidance of applicants and the official application form are available on the Court's website. They may also be obtained directly from the Registry.

20. The procedure before the Court is adversarial and public. It is largely a written procedure [1]. Hearings, which are held only in a very small minority of cases, are public, unless the Chamber/Grand Chamber decides otherwise on account of exceptional circumstances. Memorials and other documents filed with the Court's Registry by the parties are, in principle, accessible to the public.

21. Individual applicants may present their own cases, but they should be legally represented once the application has been communicated to the respondent State. The Council of Europe has set up a legal aid scheme for applicants who do not have sufficient means.

22. The official languages of the Court are English and French, but applications may be submitted in one of the official languages of the Contracting States. Once the application has been formally communicated to the respondent State, one of the Court's official languages must be used, unless the President of the Chamber/Grand Chamber authorises the continued use of the language of the application.

The handling of applications

23. Each application is assigned to a Section, where it will be dealt with by the appropriate judicial formation: a Chamber, a Committee or a single judge.

An individual application that clearly fails to meet one of the admissibility criteria is referred to a single judge, if the State concerned has accepted the procedure, or else to a Committee. In both cases, the draft decision is prepared by or under the responsibility of a non-judicial rapporteur. It is then submitted to a Committee or a single judge as appropriate. In the former case, a unanimous vote is required to declare the case inadmissible or strike it out. A decision of inadmissibility by a Committee or a single judge is final.

Those applications not rejected at the first stage, that is, those that require further scrutiny, are referred to a larger judicial formation. For those States that remain under the procedures of Protocol No. 11, such cases are referred to a Chamber and examined in the usual way.

Where the respondent State has accepted the Protocol No. 14 procedures, the judgment in a case that can be dealt with by applying well-established case-law will be delivered by a three-judge Committee [1]. The procedure followed in such cases is simpler and lighter. In contrast to the Chamber procedure, the presence of the national judge is not required, although the Committee may vote to replace one of its members by the judge elected in respect of the respondent State. Committee judgments require unanimity; where this is not achieved, the case will be referred to a Chamber. A Committee judgment is final and binding, there being no possibility of seeking referral to the Grand Chamber, as is possible with Chamber judgments.

24. All final judgments of the Court are binding on the respondent States concerned. Responsibility for supervising the execution of judgments lies with the Committee of Ministers of the Council of Europe.

The Committee of Ministers verifies whether the State in respect of which a violation of the Convention is found has taken adequate remedial measures, which may be specific and/or general, to comply with the Court's judgment.

Protocol No. 14

25. In addition to the two procedures already described, Protocol No. 14 contains several other amendments to the Convention. It will introduce a non-renewable term of office of nine years for judges. It will allow the Plenary Court to request the Committee of Ministers to reduce the size of Chambers from seven members to five for a fixed period of time. A new mode of designation will be introduced for ad hoc judges. A new ground of inadmissibility will be introduced (“no significant disadvantage”). The Council of Europe Commissioner for Human Rights will be entitled to submit written comments and take part in the hearing in any case before a Chamber or the Grand Chamber. The Committee of Ministers will be able to request interpretation of a judgment of the Court. It will also be able to take proceedings in cases where, in its view, the respondent State refuses to comply with a judgment of the Court. In such proceedings, the Court will be asked to determine whether the State has respected its obligation under Article 46 of the Convention to abide by a final judgment against it. Finally, the Protocol will allow the European Union to accede to the Convention.

With the Russian ratification having taken place in February 2010, the Protocol entered into force on 1 June 2010. The judges in office on that date will have their term of office increased to a total of nine years if they are serving their first term and by two years otherwise.

E. Role of the Registry

26. Article 25 of the Convention provides: “The Court shall have a registry, the functions and organisation of which shall be laid down in the rules of the Court. The Court shall be assisted by legal secretaries.”[1]

27. The task of the Registry is to provide legal and administrative support to the Court in the exercise of its judicial functions. It is therefore composed of lawyers, administrative and technical staff and translators. At the end of 2009 the Registry comprised some 640 staff members. Registry staff members are staff members of the Council of Europe, the Court's parent organisation, and are subject to the Council of Europe's Staff Regulations. Approximately half the Registry staff are employed on contracts of unlimited duration and may be expected to pursue a career in the Registry or in other parts of the Council of Europe. They are recruited on the basis of open competitions. All members of the Registry are required to adhere to strict conditions as to their independence and impartiality.

28. The head of the Registry (under the authority of the President of the Court) is the Registrar, who is elected by the Plenary Court (Article 26 (e) of the Convention). He/she is assisted by a Deputy Registrar,

28. The head of the Registry (under the authority of the President of the Court) is the Registrar, who is elected by the Plenary Court (Article 26 (e) of the Convention). He/she is assisted by a Deputy Registrar, likewise elected by the Plenary Court. Each of the Court's five judicial Sections is assisted by a Section Registrar and a Deputy Section Registrar.

29. The principal function of the Registry is to process and prepare for adjudication applications lodged with the Court. The Registry's lawyers are divided into thirty-two case-processing divisions, each of which is assisted by an administrative team. The lawyers prepare files and analytical notes for the judges. They also correspond with the parties on procedural matters. They do not themselves decide cases. Cases are assigned to the different divisions on the basis of knowledge of the language and legal system concerned. The documents prepared by the Registry for the Court are all drafted in one of its two official languages (English and French).

30. In addition to its case-processing divisions, the Registry has divisions dealing with the following sectors of activity: case management and working methods; information technology;

case-law information and publications; research and library [1]; just satisfaction; press and public relations; and internal administration (including a budget and finance office). It also has a central office, which handles mail, files and archives. There are two language divisions, whose main work is translating the Court's judgments into the second official language and verifying the linguistic quality of draft judgments before publication.

F. Budget of the Court

31. According to Article 50 of the Convention, the expenditure on the Court is to be borne by the Council of Europe. Under present arrangements, the Court does not have a separate budget, but its budget is part of the general budget of the Council of Europe. As such, it is subject to the approval of the Committee of Ministers of the Council of Europe in the course of their examination of the overall Council of Europe budget. The Council of Europe is financed by the contributions of the forty-seven member States, which are fixed according to scales taking into account population and gross national product.

32. The Court's budget for 2009 amounted to 56.62 million euros. This covered judges' remuneration, staff salaries and operational expenditure (information technology, official journeys, Translation, interpretation, publications, representational expenditure, legal aid, fact-finding missions, etc.). It did not include expenditure on the building and infrastructure (telephone, cabling, etc.).

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