European Convention on Human Rights
It is the intention within the following essay to critically evaluate the title statement by exploring the relative importance of the rights listed in the European Convention on Human Rights (ECHR), and whether all or only some are enshrined in the laws of the signatory States. There will be consideration of wording of the Articles, whether a hierarchy of rights is revealed and an exploration of whether the exceptions permitted in relation to some rights causes them to be perceived as less important than those expressed in absolute terms. The relative importance of 'derogable' rights will be assessed and the concept of derogation explored in order to draw conclusions. The interpretations provided by the European Court of Human Rights (ECtHR) will be considered throughout the essay as relevant cases are examined and their judgments appraised in order to illuminate the argument.
BACKGROUND & PHILOSOPHY OF ECHR
In attempting to determine the relative importance of human rights in Europe it is helpful briefly to explore history and philosophy. The doctrine of human rights aims to enable each human individual to lead a good, moral life by identifying the necessary requirements for living and clarifying public moral norms .
Human rights rest upon moral universalism and the belief that all human beings share moral values. In Europe, the origins of moral universalism are associated with the classical writings of Aristotle (Roman) and the Greek Stoics Cicero and Seneca . A concept of rights more closely resembling that of modern times emerged during the 17th and 18th centuries in the Doctrine of Natural Law, the belief in the existence of a natural moral code based upon the identification of certain fundamental and objectively verifiable human goods secured by our possession of equally fundamental and objectively verifiable natural rights . Natural law was deemed to pre exist actual social and political systems. The main exponent of natural law was John Locke who argued that individuals possessed natural rights, independent of the political recognition granted them by the state and that natural rights flowed from natural law. Natural law originated from God and accurately discerning the will of God provided society with an ultimately authoritative moral code. In order to fulfill duty to God each individual had to be free from threats to life and liberty, whilst also requiring the basic, positive means for self preservation i.e. personal property. The natural rights to life, liberty, and property set clear limits to the authority and jurisdiction of the State, presented as existing to serve the interests of the people, and not of a Monarch or a ruling cadre.
Following the atrocities and horrors of World War II, an alliance of, initially, twelve nations (including the UK) formed the United Nations, out of which grew the Council of Europe which drafted, and continues to revise today, the European Convention on Human Rights (ECHR) . The international collaboration was intended to protect the future interests of European individuals, parliamentary democracy and the rule of law and prevent repetition of the human rights abuses that occurred under Nazism (particularly the Holocaust), Fascism, Totalitarianism and the Cold War . The Convention established the European Court of Human Rights (ECtHR), through which individuals who feel their rights have been violated under the Convention by a state party can take a case to the Court. The decisions of the Court are not automatically legally binding, but the Court does have the power to award damages. The establishment of a Court to protect individuals from human rights violations is an innovative feature for an international convention on human rights , as it gives the individual an active role on the international arena where previously only states have been involved. The European Convention is still the only international human rights agreement providing such a high degree of individual protection.
The power of established international norms has been well documented; in the Law of Peoples, John Rawls suggested that a central role of human rights is to govern how countries deal with the problems and injustices they perceive in the internal practices of other countries by setting out the boundaries of international tolerance and permissible intervention. Rawls' ideas are reflected in a Conference speech given in Berlin in 2007 by Thomas Hamarberg , who said:
'We Europeans should recognise that human rights are not only a question in our common foreign policy, we have problems also on our own continent. If asked to name three current priority issues I would focus on xenophobia, the rights of migrants and methods used in the struggle against terrorism.'
The words used in the Convention are significant in establishing whether certain rights are more important than others. In Vo v France the word 'everyone' in an Article 2 Right to Life case was important in the judgment when considering the rights of the foetus as well as those of the mother in an abortion case. The Court did not reach consensus on the moral status of the foetus, but did agree that it was a member of the human race. Its capacity to become a person meant it should be protected as a matter of human dignity, but did not make it a person with a right to li8fe which could be protected by Article 2.
Article 3 Prohibition of Torture is unique among the Convention rights in that it is short and powerful, being particularly concisely and precisely worded:
"No one shall be subjected to torture or to inhuman or degrading treatment and punishment"
In Ireland v. United Kingdom with specific reference to Article 3, the Court stated:
The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and, under Article 15(2), there can be no derogation therefrom even in the event of a public emergency threatening the life of the nation.
Limitations which the courts must consider may be built into the guarantee itself. The right is offered in the first part of the article and subsequently limited in the second. The wording is notable in Article 8(1) which protects the right to respect for private and family life but the extent to which the right is protected depends on the 'interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others' (Article 8(2)). The right to freedom of thought, conscience and religion under Article 9(1) must also be in 'the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others' (Article 9(2)).
Words are also significant in the expression of Article 10 regarding Freedom of Expression. The right protected by Article 10(1) is to be in 'the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary' (Article 10(2)).
It might be argued that without freedom to express ideas and views which might be controversial there can be no democracy, making this right particularly important and necessitating expression as cogently as that in Article 3. However, in Article 10(2) the use of the words 'duties and responsibilities' is an unusual reference in the declaration and there follows a long list of legitimate aims, which coupled with the dated references to 1950's technologies in 10(1) gives an unwieldy impression.
The words used in the second part of Article 11 Freedom of assembly and association may be used by States to bring about restrictions on assembly and association , the very opposite of the intended individual protection, as they make reference to exceptions which may be necessary:
in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state."
Strict proportionality is crucial, as emphasised by the case of Andronicou V Cyprus . Proportionality is a central provision of the ECHR and applies where the expression 'necessary in a democratic society' is present in the article title. Whether or not such a right has been violated will depend on whether the interference with the right is proportionate to the legitimate aim of the state. Thus, even if a policy that interferes with a convention right might be aimed at securing a legitimate purpose (such as the prevention of a crime) this will not in itself justify the violation if the means adopted to secure the purpose are excessive in the circumstances . The case of Osman v UK highlighted the 'positive obligation' of the State 'to protect everyone within its jurisdiction' and provided a test for when the positive obligation to protect the individual has been breached .
Words are therefore significant in determining the relative power of the rights, and give an indication of the thresholds which must necessarily be overcome in order for claims to succeed.
INTERPRETATION AND CONFLICTS
The international nature of the ECHR may lead to problems of understanding and interpretation . There may be conflicts resulting from problems with interpretation across the boundaries between many diverse cultures, a problem even more marked as international transportation and mobility improve and new technologies such as the internet are developed. The approach taken to interpretation has recognised that the nature of obligations and regional limitations on application may result in different meanings being ascribed to words and phrases in the Convention. Judge Bernhardt has said:
"The notions contained in human rights conventions have an autonomous meaning; however, such meaning must be determined by a comparative analysis of the legal situation in the participating States. To the extent that this analysis shows considerable differences and disparities among the States, a national 'margin of appreciation' is and must be recognised. Human rights treaties must be interpreted in an objective and dynamic manner, by taking into account social conditions and developments; the ideas and conditions prevailing at the time when the treaties were drafted retain hardly any continuing validity. Nevertheless, treaty interpretation must not amount to treaty revision. Interpretation must therefore respect the text of the treaty concerned"
The 'margin of appreciation' has been significant in many cases brought before the ECtHR, such as Golder v UK , Guzzard v Italyi , and Hatton v UK .
The case of Chahal v United Kingdom has emphasized the relative importance of Article 3 in the international community and may be considered evidence of the concept of Jus Cogens, a rule or principle in international law so fundamental that it binds all states without exception . The ECtHR upheld Mr Chahal's complaints, whose only recourse previously had been an appeal to an internal Home Office review committee, known informally as the 'Three Wise Men'. The EctHR decision in Chahal affirmed that returning any person to a country where they faced a risk of torture was prohibited by Article 3 the so called extraterritorial effect having been established in the case of Soering in 1989. The Court also considered that Mr Chahal's right to liberty and security under Article 5(4) was breached by the lack of procedures allowing him to challenge the evidence brought against him whilst in detention awaiting deportation. The Court's decision in Chahal has had a significant impact on the use of deportation as a counter terrorism measure in the UK. In 1997, Parliament passed legislation which replaced the internal Home Office review panel with an independent judicial commission to hear appeals in national security cases, known as the Special Immigration Appeals Commission (SIAC). The 1997 Act also introduced the use of Special Advocates security cleared lawyers specially appointed to represent appellants in 'closed' hearings in which highly sensitive, intelligence material is likely to be used as evidence and which the Home Secretary is unwilling to disclose to the appellant and his or her lawyers for reasons of National Security. Special advocates are forbidden from discussing the closed evidence with clients, despite acting on their behalf in closed hearings. This may mean that SA's are acting without proper instructions from their client.
Further blurring of meaning can occur when the different cultural mores are under scrutiny. In Tyrer v UK an Article 3 corporal punishment case, the notion of the flexibility of the Convention as a 'living instrument' was underlined. The concept of the 'living instrument' facilitates the just interpretation of the Convention in the light of present day conditions rather than by trying to ascertain the meaning of the draft writers of 50 years previously, when cultural values may have been very different.
There may be problems also with the conflict between the rights of the individual and the rights of the collective society; as long ago as the seventeenth century the British metaphysical poet and clergyman John Donne wrote:
"No man is an island, entire of itself; every man is a piece of the Continent, a part of the main; if a clod be washed away by the sea, Europe is the less. "
The law in each signatory state must balance carefully the rights of the individual as protected by ECHR with the needs of the majority in society. Many interesting human rights issues are revealed within the fields of medicine and health care, where rationing of resources is a very modern health care issue. Donne's thoughts are shared by modern health ethicists such as Meisel and reflected in current professional codes of practice , which, whilst requiring patients' autonomy to be respected, acknowledge the 'interconnectedness' of the patient and health professional in the therapeutic relationship. However, sometimes conflicts arise between the perceived rights of the individual and the law, as seen in some recent UK cases in which quality and the prolonging of life was a central consideration, such as Bland , (a case which involved a victim of a football stadium disaster, Anthony Bland, whose crush injuries had left him unable to communicate or make understood any voluntary, informed decisions) and Pretty ( Diane Pretty's concern was that by the time her illness and disability had progressed to the point at which continued living became intolerable, she would be entirely helpless and reliant on her partner to assist her to commit suicide by a deliberate act. She was concerned to receive an undertaking from the Dept of Public Prosecutions that her partner would not be prosecuted if he helped her to die). In Pretty, Lord Bingham MR considered the case's consistency with the European Convention on Human Rights as protected by the Human Rights Act, 1998 : Article 2 the right to life, Article 3 the right to be spared inhuman and degrading treatment, Article 8 the right to a private, family life, Article 9 the right to hold belief, Article 10 the right to freedom of expression and Article 14 the 'parasitic' right to freedom from discrimination were all consistent with the prohibition of assisted suicide in relation to Ms Pretty's situation. The European Court of Human Rights (ECtHR) also found there was no violation of rights in Ms Pretty's case. To most cultures the idea that some people 'who are unable to decide for themselves ought as a matter of dignity to be killed' is abhorrent. Certainly, many European cultures will be affected by the memories of 20th Century genocide and 'ethnic cleansing' e.g the large groups of vulnerable, incompetent adults and children such as those with learning disabilities killed by the Nazis in World War II. Indeed, in relation to Ms Pretty's case, the ECtHR said that to create exceptions might undermine the power of the protection of the legislation and greatly increase the risk of abuse.
THE HIERARCHY OF EUROPEAN CONVENTION RIGHTS
In the UK, it may seem that no particular right within the ECHR is regarded as having precedence over any other; the Cabinet office states that:
.the main Convention rights are: life; freedom from torture and inhuman and degrading treatment or punishment; liberty and security (i.e. freedom from wrongful arrest and detention); fair trial; respect for private and family life; home and correspondence; religion; expression and information; peaceful assembly and association; marriage; property; education; and free elections... No order of priority as regards importance is specified."
However, some commentators have identified an implicit hierarchy of rights within the ECHR. Black Branch suggests a three tiered hierarchy of rights protected by the ECHR, which, although not explicit identifies three broad categories of rights and freedoms protected under the Convention: (1) absolute, non derogable, rights which are unqualified, (2) derogable rights which are also unqualified, and (3) derogable rights which may be qualified rights. Feldman, cited by Black Branch writes:
"There is no explicit general principle that some rights are more important than others ... However, there is an implicit ordering, because some rights ... are absolute (in the sense of being subject to no express or implied qualifications) and are non derogable, another group of rights are subject to qualifications but are non derogable; and yet another group of rights are both qualified and derogable."
The category to which a right may be ascribed indicates the power of the right when there is conflict between it and other rights or interests. The positioning of a right in a hierarchy such as that suggested above may determine its effectiveness, based on the degree to which it may be qualified and whether or not it may be limited by the State.
Rights' effectiveness seems to be dependent upon two variables: whether a Government can derogate from its responsibility in the first instance and the degree to which the right in question may be qualified in the second. Derogation is defined as 'Lessening or restriction of the authority, strength or power of a law, right or obligation. Specifically...(in the ECHR) A provision that enables a signatory state to avoid the obligations of some but not all of the substantive provisions of the rest of the Convention' . So, a right's relative effectiveness will be dependent upon its nature, derogability, its scope, and the degree to which it may be qualified or limited within society.
ABSOLUTE NON DEROGABLE RIGHTS, EMBEDDED RIGHTS
Absolute, non derogable rights have the highest protected status. The state cannot derogate from its responsibility to ensure that these rights are upheld. Article 15(2) of the Convention states: 'No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision'.
Convention rights that are absolute, in that no qualification can be placed on them to impair the integrity of the right itself are:
Article 2: the right to life;
Article 3: prohibition of torture and inhuman or degrading treatment or punishment;
Article 4 (1): prohibition of slavery and forced labour;
Article 7: no punishment without law
Article 12: the right to marry.
The absolute nature of these rights has been highlighted by the European Court of Human Rights in many cases. In McCann , an Article 2 case, the court observed that
.as a provision which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 ranks as one of the most fundamental provisions in the convention"
Article 3 is particularly strong within this group, not only because it is concisely and precisely worded, but also because it is absolute, non derogable and unqualified. The non derogable power of Article 3 even in times of emergency and the extra territorial rule established in the cases of Soering and Chahal , interestingly, prevented the UK from deporting foreign nationals suspected of involvement in Al Qaeda related terrorism post 9/11 if in their destination country they faced a real risk of torture. Instead, the UK government derogated from the right to liberty under Article 5(1)(f), in order to detain indefinitely the suspects in the UK under Part 4 of the Anti Terrorism Crime and Security Act 2001 (subsequently held to be unlawful and leading to the introduction of control orders applying to UK and foreign nationals alike under the Prevention of Terrorism Act 2005). Following terrorist activity in Europe in the London bombings of 7/7, governments have attempted to use deportation as a counter terrorism measure eg Ramzy in the Netherlands. The UK has sought to avoid the decision in Chahal by negotiating 'memoranda of understanding' with governments known to use torture against their citizens. Diplomatic assurances have been sought from countries such as Jordan, Libya Algeria and Morocco in an effort to convince SIAC that suspects of terrorism deported under such assurances will not face a real risk of torture or other ill treatment in breach of their rights protected by Article 3.
In Ireland v. United Kingdom the Court clarified that absolute, non derogable, embedded rights are special because they are untouchable, unlike most other substantive clauses of the Convention. Notably, they prevail irrespective of conduct, and 'even in the event of a public emergency threatening the life of the nation'. Consequently, rights listed under this category enjoy the highest status of rights protection because they are absolute and cannot be derogated from, as they are embedded in the law. States cannot escape responsibility from commitment to this group of rights and courts are bound to uphold them without limitations. As a result, this category of rights is strong in that by its very nature it is untouchable and cannot be limited, thus maintaining its integrity.
UNQUALIFIED DEROGABLE RIGHTS, TENTATIVE RIGHTS
Unqualified but derogable rights form the second category on the three tiered hierarchy of rights described above. States cannot place on them any qualification which might impair the integrity of the right itself, but they may elect to derogate from their responsibility to uphold the right. They can partially repeal or abolish part of a law, limiting its scope, utility or force. Article 15(1) of the Convention allows states to derogate from certain rights in time of war or public emergency, specifically:
'In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.' In derogating from Convention obligation, states must adhere to administrative requirements specified in Article 15(3):
'Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.'
The option to derogate from rights obligations renders this group of rights of lower status than the first category. Rights of this nature are:
Articles 4(2) and 4(3): relating to specific aspects of the prohibition of slavery and forced labour;
Article 5: the right to liberty and security;
Article 6: the right to a fair trial.
An important example of derogation by the UK from the Convention relates to the detention of suspected terrorists in 1relation to the affairs of Northern Ireland. Here, the UK Parliament passed legislation enabling detention without charge for periods of up to five days, in cases concerning persons reasonably suspected of involvement in terrorism connected with the affairs of Northern Ireland (under Section 12 of the Prevention of Terrorism (Temporary Provisions) Act (1984)) .
Following this legislation, the UK was subsequently found to be in breach of its Convention obligations in the case of Brogan and Others in which the Court ruled there had been a violation of Article 5(3), in respect of the applicants who had been detained under Section 12 of the Prevention of Terrorism Act 1984. Article 5(3) governs the right to be brought promptly before a judge or other officer authorised by law to exercise judicial power upon arrest or detention. The Court held that even the shortest of four listed periods of detention under the Act, namely four days and six hours, fell outside permissible limits pursuant to Article 5(3). Moreover, there had been a violation of the applicants' rights under Article 5(5) which provides that, 'Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation'.
The UK declared a state of 'public emergency' in relation to Article 15(1), the derogation clause in the Convention after the adverse ruling in Brogan, and duly issued notification to the Council of Europe in accordance with Article 15(3). The derogation stated:
'There have been in the United Kingdom in recent years campaigns of organised terrorism connected with the affairs of Northern Ireland which have manifested themselves in activities which have included repeated murder, attempted murder, maiming, intimidation and violent civil disturbance and in bombing and fire raising which have resulted in death, injury and widespread destruction of property. As a result, a public emergency within the meaning of Article 15(1) of the Convention exists in the United Kingdom.'
The nature of the derogation relates directly to the adverse ruling, on the detention of suspects. The UK submitted that:
'The Government found it necessary in 1974 to introduce and since then, in cases concerning persons reasonably suspected of involvement in terrorism connected with the affairs of Northern Ireland, or of certain offences under the legislation, who have been detained for 48 hours, to exercise powers enabling further detention without charge, for periods of up to five days, on the authority of the Secretary of State ...'
Derogations are important because they restrict the rights of the individual, effectively eroding the right intended by the Convention, (as interpreted by the European Court of Human Rights in Brogan) and also they demonstrate the political power of the Member States when allowed to derogate from their responsibility. So, derogable rights may be limited in their scope, according to the wishes of the Member State.
However, like the first category of rights explored above, the rights in this group also cannot be qualified. They are absolute, so they retain some strength but states can derogate from their commitment to protect them which weakens their power to protect. They are more tentative, and dependent upon the prevalent contemporary social and political context.
QUALIFIED DEROGABLE RIGHTS, TENUOUS RIGHTS
Rights which are both qualified and derogable hold the weakest position in the hierarchy. Qualifications can be placed on them, which might narrow their scope. Even if a right stands without state interference, and a court finds a breach of the right in question, it may then consider whether the breach is justifiable within the norms of the democratic society. The court may allow violation to be upheld based on the circumstances of the case; thus, it can be seen that rights in this group are not absolute. Additionally, states may derogate from their responsibility to assure that the right in question is offered in the first instance with the result that this category of rights has the lowest form of protection under the Convention, being neither absolute, nor guaranteed in the first instance. Rights in this group are those in Convention Articles 8, 9, 10 and 11.
The right to freedom of peaceful assembly and to freedom of association with others guaranteed under Article 11(1), must be 'in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others', and must 'not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State' (Article 11(2))
These rights may be both qualified and derogated. Rights protected in this group are thus much weaker than those described above in that they may be derogated from, but because they may also be qualified limits their scope further and they are consequently the least protected group of rights, being weak by nature and potentially limited in scope so called 'tenuous rights'
In conclusion, it can be seen that the relative importance of rights within the ECHR is not immediately evident, and indeed is essentially flexible, as might be expected of a 'living instrument' of justice. Various rights have assumed more importance than others at certain times and in particular contexts. However, the wording of some, particularly the brief, definite and absolute terms in which Article 3 is expressed suggest that the right to freedom from torture and inhuman and degrading treatment is of paramount importance, possibly reflecting the origins of the ECHR post World War II. The derogations permitted in times of war or national emergency have been shown to afford states some degree of freedom from their obligations to protect the rights of the individual and it seems that the concept of positive rights of the individual is not always held as sacred, suggesting that the word 'enshrined' might be sometimes inaccurately applied to the Articles of the ECHR. Nevertheless, the importance of all ECHR rights to the freedom and safety of the individual is considerable and if the future atrocities are to be avoided the existence of such a living instrument, continually revised and adapted and signed up to by increasing numbers of states, must be nurtured and encouraged by all Europeans. 4993