How is that balance promoted in the Convention itself, and how satisfactory, in your view, has the European Commission on Human Rights and the European Court of Human Rights pursued that aim?"

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Martijn Brinkhuis

2a Marley Court


University of Kent


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Human rights and English law

Michaelmas term, December 17th 1998

"The European Convention on Human Rights seeks to balance the rights of the

individual with various other rights and interests in society.

How is that balance promoted in the Convention itself, and how satisfactory,

in your view, has the European Commission on Human Rights and the European

Court of Human Rights pursued that aim?"


Page 4 - Introduction

- The Convention in short

Page 5 - The problem to balance

Page 6 - Limitations on the rights

Page 7 - The doctrine of margin appreciation

- Article 64

Page 8 - How does it work?

- Enforcing the Convention

Page 9 - Conclusion

Page 10 - Bibliography


After the Second World War, an international (European) organisation, called the Council of Europe, was formed. The Council drafted the European Convention on Human Rights1. It was signed in 1950 and entered into force in 1953.

Intentionally as a means of preventing the kind of violation of human rights seen in Europe during and before the war. Another reason was the wish to protect Western Europe against communism, which had spread into the states in Central and Eastern Europe. The Convention provided both a symbolic statement of the principles for which Western European states stood and "a remedy that might protect those states from communist subversion2".

The Convention transformed the abstract human rights ideals into a concrete legal framework. Although the concerns over 'sovereignty' and the reluctance on the concept of a state's accountability in the early days, more than 303 state's signed and ratified the Convention. Nowadays, the Convention has evolved into a European bill of rights, with the European Court of Human Rights having a role akin to that of a constitutional court in a federal legal system.

The Convention in short

The term 'human rights', in the usual sense, covers everything which in the language of the Convention is a 'freedom'. Under Article 1, these Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the Convention. Articles 2 to 18 of Section I list and define these rights (and freedoms).

Articles 2 to 5 and 7 to 11 all concern protection of live, respect for the human being and personal freedom. These so-called 'classical' human rights entail that the individual shall be safeguarded against state interference of one kind of another.

They are 'negative' rights (i.e. designed to prohibit certain actions), while another, smaller group are called 'positive' rights. They impose upon the states a duty to take positive action, for instance Article 6 (right to a 'fair hearing' by the courts) and Article 13 (the right to an effective remedy to any one whose 'rights or freedoms' under the Convention have been violated).

Some particularly important provisions are those who apply to all rights and freedoms covered by the Convention. Except for one4 all of these Articles are about limitations and restrictions on the Convention. Article 15 entitles Member States to derogate from a number of provisions of the Convention during time of war or other (real) public emergency. Article 16 gives the state the right to impose restrictions on the political activity of aliens5. Article 17 stipulates that none of the provisions of the Convention implies any justification for actions aimed at the destruction of any rights or freedoms recognised in the Convention. Article 18 lays down an important principle, which states that although certain restrictions are permitted, they may only be applied for purposes for which they have been prescribed.
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Furthermore, general restrictions are possible in the Articles 8 to 11. These Articles have a second paragraph enumerating certain restrictions on the primary right stated in the first paragraph. In short, the second paragraph allows restrictions on these rights when they are 'prescribed by law' and 'necessary in a democratic society'.

The problem to balance

On occasion, the rights of the individual and those of the state may conflict. A state is, and should be, in a more superior position than the citizen. The Convention is there -among other reasons seen above- to make sure the ...

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