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The European Convention on Human Rights

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Introduction

The European Convention on Human Rights was drafted as a result of the repercussions of the Second World War. The importance of the convention became apparent immediately as its existence was highlighted as a matter of urgency in the direct aftermath of the war. However, such an opinion can also be viewed to be limited when taking into account each article in the convention along with the moving on with time with different situations developing frequently. 'In democratic societies fundamental human rights and freedoms are more than paper aspirations. They form part of the law. And it is the special province of judges to see to it that the laws undertakings are realised in the daily life of the people.'1 As mentioned the European Convention exists as a produce of the Second World War, with an idea of governing relationships between states. It is argued that the convention and its fundamental freedoms is the most important instrument of international law to emanate from the Council of Europe. The idea was to introduce harmony and a sense of unity between member states. This was vital at the time as their was an urgent need for human rights to be protected. A major factor which sought to have played a part in the importance of the convention was communism and those steps which needed to be taken from preventing it spreading any further from the East to the West. The convention acted as a symbolic statement, made to show that war would never be accepted again. ...read more.

Middle

The convention is limited in the fact that it only protects some rights, due to the fact that it was not drafted for modern technicalities. A prime example being Article 8 of the Convention, Freedom from discrimination of the grounds of sexual orientation. Here the leading authority Cossey v Uk 6 where he was born male but later opted for an operation for a sex change, wanting also to marry further down the line. However according to British Law sex is defines at birth, thus in the eyes of the law he was still a man, therefore a man trying to marry another man. According to the European Convention on Human Rights there was no consensus, discretion in how it should be used, there was also a lack of understanding within society. However according to the margin of appreciation a gap was given in order for a personal decision to be made. As time moved on there was also a subtle change in the courts' attitude. In Goodwin v Uk 7 it was determined that the words did not change but attitudes did, 'The European Court of Human Rights determined that because of changes in societal attitudes the prohibition on, inter alia, the right of transsexuals to marry was in violation of the ECrtHR and such difference in treatment no longer be claimed by the Uk Government to fall within its margin of appreciation.'8 Following on from this in Bellinger v Bellinger & Another 9 The House of Lords made it clear that a marriage ...read more.

Conclusion

It is also emphasised that the convention is a living document and must be interpreted in the light of changing attitudes and values in society generally. Fact, The European Convention was drafted in light of the Second World War and as expected its content does express concerns of its period. However all rights have their limits, how far is one to go before they are seen to be 'crossing the line', for example in Medical Law, advances in medicine over the years have increased the chances of life, whether it be with machines or drugs, there is a blurring of the boundary, how far does some bodies right to life go. It can be successfully argued that the rights are too broad, the convention could be said to have been successful for the time it was made for but with ever changing attitudes its limitations do highlight a cause for concern. The legislation passed at the end of the 1990's had been expected unleash a wave of high profile cases, however in Scotland 98% of cases that tried to use the convention fell at the first hurdle. The impact has therefore been to make public bodies think about human rights and act in anticipation of avoiding problems rather than facing their critics in court. 'The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed. ...read more.

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