由歐洲人權公約第八條案例論個別人權和集體人權的關係 - 政大學術集成

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(1)國立政治大學外交研究所碩士論文 Department of Diplomacy National Chengchi University Master Thesis. 治. 政由歐洲人權公約第八條案例論個別人權和集體人權的關係大. 立立. •‧ 國. ㈻㊫學. THE RELATIONSHIP BETWEEN INDIVIDUAL AND COLLECTIVE. •‧. HUMAN RIGHTS IN LIGHT OF CASES REGARDING ARTICLE 8 OF. n. al. er. io. sit. y. Nat. THE EUROPEAN CONVENTION OF HUMAN RIGHTS. Ch. engchi. i Un. v. 研究生：梁思城 Student: Martin Lavicka 指導教授：陳純一教授 Advisor: Professor Chen Chun-i 中華民國 102 年 7 月 July 2013.

(2) 立立. 政治大. •‧. •‧ 國. ㈻㊫學 Thesis Declaration. sit. y. Nat. al. er. io. I hereby declare that the whole of this diploma thesis is my own work, except where. v. n. explicitly stated otherwise in the text or in the bibliography. I also declare that all. Ch. engchi. i Un. information in this document has been obtained and presented in accordance with academic rules and ethical conduct and that I have fully cited and referenced all material and results that are not original to this work.. In Taipei, July 2013. Bc. Martin Lavicka ................................. i.

(3) Abstract This thesis focuses on the relationship between individual and collective human rights in light of the Article 8: Right to respect for private and family life of the European Convention on Human Rights (ECHR). The main argument is that there is a specific relationship between these two groups of rights, which could possibly contest the consistency of the ECHR. This thesis looks for possible explanations and patterns, which would explain the decisive argument for either individual or collective human rights, to prevail at the European Court of Human Rights. The analysis is based on. 政治大 predominantly covered by the Article 8, where individual and collective human rights 立立. various judgments from the European Court of Human Rights, dealing with rights. •‧ 國. ㈻㊫學. are contested. The focus on the Article 8 of the ECHR is mainly because it covers a broad spectrum of issues such as ethnic, sexual, and religion minority rights, anti-. •‧. terrorism measurements, and environmental protection issues. This could illustrate. sit. y. Nat. that the specific relationship between individual and collective human rights can be. al. n. human rights systems.. er. io. identified in completely different issue areas and settings, and analogically in other. Ch. engchi. i Un. v. Key words: Human rights, human rights law, European Convention on Human Rights, European Court of Human Rights, individual human rights, collective human rights. ii.

(4) Acknowledgments: I would like to thank Professor Chen Chun-i from the National Chengchi University for his valuable opinions and comments during the process of writing my master’s thesis, and other committee members, Professor Chang Wen-Chen from the National Taiwan University, and Professor Titus Chih-Chieh Chen from the National Chengchi University, for their helpful suggestions and comments. I would also like to thank Professor Ingvill Thorson Plesner from the University of Oslo for introducing me to the topic of human rights, and my parents for their great support and encouragement.. 立立. 政治大. •‧. •‧ 國. ㈻㊫學. n. er. io. sit. y. Nat al. Ch. engchi. i Un. v. iii.

(5) Content Thesis declaration……………………………………………………………...………i Abstract....…..………………………………………………..………………………..ii Acknowledgments…...………………………………………………….…………….iii 1 Introduction .............................................................................................................. 1 1.1 Motivation ......................................................................................................... 1 1.2 Identification of the Problem ............................................................................ 3 . 政治大. 1.3 Research Questions ........................................................................................... 5 . 立立. 1.4 Literature Review.............................................................................................. 6 . •‧ 國. ㈻㊫學. 1.5 Methodology ..................................................................................................... 8 . •‧. 2 Article 8 Background ............................................................................................. 12 . y. Nat. er. io. sit. 2.1 Introduction ..................................................................................................... 12 2.2 Basic Understandings and Justification of Human Rights .............................. 13 . al. n. iv n C hen Basic Human Rights Documents .................................................................... 21 gchi U. 2.3 . 2.4 European Convention of Human Rights – Characteristics and Structure ....... 28 2.5 European Court of Human Rights – Admissibility Criteria and Procedures .. 30 2.6 Article 8 – The Right to Respect for Private and Family Life ........................ 33 2.7 Individual and Collective Human Rights ........................................................ 37 2.8 Conclusion to Chapter 2.................................................................................. 38 3 Case studies............................................................................................................ 40 3.1 Article 8 Cases ................................................................................................ 40 iv.

(6) 3.1.1 Chapman v. the United Kingdom ............................................................ 41 3.1.2 Dudgeon v. the United Kingdom ............................................................. 43 3.1.3 Gillan and Quinton v. the United Kingdom ............................................. 46 3.1.4 V.C. v. Slovakia ....................................................................................... 49 3.1.5 Von Hannover v. Germany (no. 2) .......................................................... 52 3.2 Other Relevant Cases ...................................................................................... 56 3.2.1 K v. Germany ........................................................................................... 57 . 政治大. 3.2.2 Lautsi and Others v. Italy ......................................................................... 59 . 立立. 3.3 Similar Concerns in Other Covenants............................................................. 63 . •‧ 國. ㈻㊫學. 3.4 Conclusion to Chapter 3.................................................................................. 66 . •‧. 4 Conclusion ............................................................................................................. 68 . sit. y. Nat. 4.1 Findings and Explanations .............................................................................. 69 . n. al. er. io. 4.2 Future of Human Rights Not Only in Europe ................................................. 78 . Ch. i Un. v. 5 References And Literature ..................................................................................... 81 . engchi. 6 Appendices............................................................................................................. 86 6.1 Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols No. 11 and 14 .................................................................. 86 6.2 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms .......................................................................................... 104 . v.

(7) List of Abbreviations CEDAW. Convention on the Elimination of All Forms of Discrimination against Women. CRC. Convention on the Rights of the Child. ECHR. European Convention on Human Rights. ECOSOC. United Nations Economic and Social Council. ECRI. European Commission against Racism and Intolerance. ERRC. European Roma Rights Centre. ICESCR. International Covenant on Economic, Social and Cultural Rights. ICERD. International Convention on the Elimination of All Forms of. 立立. 政治大. Racial Discrimination. United Nations Human Rights Committee. •‧ y. io. sit. Universal Declaration of Human Rights. n. al. er. UDHR. Nongovernmental organizations. Nat. HRC. •‧ 國. NGO. International Covenant on Civil and Political Rights. ㈻㊫學. ICCPR. Ch. engchi. i Un. v. vi.

(8) 1 INTRODUCTION. 1.1 Motivation During my studies at the National Chengchi University, in the Department of Diplomacy, I have gradually become interested in topics dealing with issues of international law. Especially fascinating and appealing, I found reading through the inexhaustible amount of case studies from around the world, which have contributed. 政治大 where the question of human 立立rights was involved. However, I often felt that the. to the current state of international law. I have frequently come across several cases. •‧ 國. ㈻㊫學. subject of human rights in particular, was somehow on the second track, receiving less attention than other issues. The possible reason of this situation could be. •‧. understood under the light of historical evolution of international law. Whereas the. Nat. sit. y. public international law has a history dating back of hundreds years, human rights law,. n. al. er. io. as we understand it nowadays, can be tracked back only to the creation of the United. i Un. v. Nations and the signing of the Universal Declaration of Human Rights in 1948. This. Ch. engchi. relatively young age, or even immaturity, has triggered many debates and criticisms, mainly contesting the justification and universality of human rights and human rights law. Other discussions include questioning of the current status, effectiveness, and the existent enforcement of human rights law under the current practice. As James Nickel comments “The human rights regime within international law is still under construction.”1 These concerns attracted my curiosity even more, and motivated me to learn more about the international human rights law, its current situation as well as its 1. James Nickel, Making Sense of Human Rights (Blackwell Publishing, 2007) at p. 20.. 1.

(9) implementation. In order to gain more knowledge and experience in the field of human rights, I decided to attend the Human Rights Graduate Course, organized by the University of Oslo’s International Summer School in 2012. Studying about human rights from various perspectives, not only legal, but also sociological and psychological, helped me to get a more complex image and deeper understanding of this complicated issue. Moreover, I had a great opportunity to meet with experts from various NGOs, dealing with concrete human rights issues, such as right to food, rights of children, women rights, rights of disabled people etc. In my research, I would like to predominantly focus on the European Convention. 治政大 Europe and therefore I am of Human Rights (ECHR), not only because I come from 立立 2. in my opinion more familiar with some of the case law backgrounds as well as the. •‧ 國. ㈻㊫學. political situation and historical context of the states, which are party to the ECHR.. •‧. The most important motivation for narrowing my focus is that the ECHR is. sit. y. Nat. considered to be the most advanced and effective system protecting human rights at. io. al. er. the international level, which is currently in practice.3 I am especially interested in discovering more about the convention, how coherent it is, or whether there are some. n. iv n C h eeventually less harmonious aspects, which could the consistency of the i U n g c hcompromise ECHR, or even the whole system. In order to get more first hand information, I have successfully obtained the trainee position at the European Economic and Trade Office in Taipei. This office is directly representing the European Union, which is the main supporter and advocate of the human rights and values encompassed in the ECHR. Therefore not only for me personally, but also for my thesis research this experience should be highly beneficial.. 2 3. Formally known as the Convention for the Protection of Human Rights and Fundamental Freedoms. James Nickel, Making Sense of Human Rights (Blackwell Publishing, 2007) at p. 18.. 2.

(10) 1.2 Identification of the Problem The main purpose of this thesis is to discuss the situation when different human rights might contradict each other, which could logically lead to the debate about the human rights law consistency and its real effectiveness. I find this problem especially significant when looking at the cases involving the struggle between individual and collective human rights; therefore I have decided to focus mostly on this specific issue area. In this thesis, I am examining and analyzing the relationship between individual and collective human rights, with focus on cases from the European Court of Human Rights. In cases I have chosen, these two different rights are contested, but only one. 政治大 of them can actually prevail. I am principally interested in how these issues can be 立立. •‧ 國. ㈻㊫學. resolved and what are the decisive arguments, which can decide whether the right of. the individual, or the right of the collective is more important. In my opinion there can. •‧. be identified a tension or disharmony between individual and collective human rights. sit. y. Nat. in many aspects, which I am describing in third chapter, by analyzing selected cases. al. er. io. of the European Court of Human Rights. However, I would argue that there is a. v. n. consistent way of solving such cases, without jeopardizing the consistency of the. Ch. engchi. i Un. European Convention of Human Rights, and the human rights law in general. My understanding of the collective human rights is not burdened by historical context, particularly the situation before the World War II, when this term represented rights of various national minorities fighting for their right of self-determination. My understanding of this term always includes context of each case I am analyzing. In some of them the “collective” can carry the meaning of the majority, public interest, or just the surrounding environment of the individual. However, the individual does not have to be necessary out of the collective. In other words, while contesting its individual rights, it can still be part of the collective. 3.

(11) Even though one might argue that the majority4 of states is party to the Universal Declaration of Human Rights (UDHR) as well as the most important conventions dealing with human rights issues, namely the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic Cultural and Social Rights (ICECSR), Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Convention on the Rights of the Child (CRC), European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and other regional systems,5 there should be settled rules and. 政治大. jurisprudence in order to avoid any misinterpretation or uncertainty. But, as examined. 立立. in my thesis, such presumption is rather idealistic, and far from the reality.. •‧ 國. ㈻㊫學. Nowadays, recently emerged concerns have been challenging the consistency of. •‧. human rights law. These include for example the threat of terrorism and its. sit. y. Nat. consequences, represented by various anti-terrorism measurements and laws,. io. al. er. implemented by states in order to protect their citizens. Another existing challenge is the divergence in the implementation of the human rights law in different countries,. n. iv n C which is often being contradictory htoethe implementation ng c h i U of the majority of states. This problem is connected to the relatively broad margin of appreciation of the human rights law, which is on the other hand one of its basic characteristics, necessary for its general acceptance. If we exclude the UDHR as a legally non-binding document, being rather a manifesto of moral aspirations of the mankind, and look at the various conventions,. 4. At the moment (February 2013) there are 167 signatories to the ICCPR, 160 to the ICESCR, 175 parties to the ICCERD, 187 to the CEDAW, 193 to the CRC and 47 to the ECHR, which means all Council of Europe members, and all European countries except of Belarus. 5 Inter-American and African Systems, such as the Organization of American States, Organization of African Unity. 4.

(12) we can observe that not only certain articles of one convention can collide significantly with articles from the other one, but even some articles within one convention can be interpreted as being in contradiction with one another. This ambiguous situation illustrates the difficulties and uncertainty not only for lawyers, but also for states as the main addressees of human rights.. 1.3 Research Questions In my thesis, I will try to answer the question, whether there is any disharmony or even disagreement between the individual and collective human rights within the. 政治大. European Convention of Human Rights. If there can be identified such relationship,. 立立. then I am especially interested in how such situation can be solved. Does such finding. •‧ 國. ㈻㊫學. indicate that some category of human rights is more important than the others under the ECHR? For example that one individual can be deprived from his/her human. •‧. rights in order to ensure rights of the majority? Is there any middle course of. y. Nat. er. io. sit. interpretation and solution to such dilemma?. My main ambition is to clearly identify this problem and try to find possible. n. al. Ch. i Un. v. answers to my questions. In the conclusion, I am discussing the possible solutions and. engchi. alternatives to the dilemmas emerging from tensions between individual and collective concerns within the human rights law issue area. Taking into account the limited length of this work and the complexity of the issue, I have decided to primarily focus on the potential inconsistencies within the ECHR, more specifically on cases regarding the Article 8: “Right to respect for private and family life.” I have focused on this Article mostly because of its wide applicability on different issue areas. I have encountered case studies referring to this Article, which are dealing with minority rights (religious, cultural, sexual), anti-terrorism measurements, environment. 5.

(13) protection and many other subjects. My primary focus on the Article 8, should not be limiting the main purpose of this thesis, to clearly identify and interpret the problematic and often contradictory nature of human rights.. 1.4 Literature Review In my opinion, there is not a satisfactory amount of literature dealing exactly with relations between individual and collective human rights in general. However, there are scholarly articles and publications focusing on particular issue areas of the ECHR, which are relevant to my research interest. These may include questions of minority. 政治大. rights in broad sense,6 rights of religious groups, or relations between the positive and. 立立. negative obligations. There is a great selection of books, discussing and analyzing the. •‧ 國. ㈻㊫學. background and evolution of human rights law, and there is also relatively sufficient amount of publications dealing specifically with the ECHR, as well as with the. •‧. European Court of Human Rights.. y. Nat. er. io. sit. The increasing amount of case law concerning positive obligations is well elaborated in Mowbray’s book “The Development of Positive Obligations under the. n. al. Ch. i Un. v. European Convention on Human Rights by the European Court of Human Rights.”7. engchi. Anagnostou and Psychogiopoulou’s publication “The European Court of Human Rights and the Rights of Marginalized Individuals and Minorities in National Context8,” examines litigations on behalf of marginalized individuals and minorities, including jurisprudence in selected European countries. In Macken’s book “Counterterrorism and the Detention of Suspected Terrorist,” 9 we can find an interesting discussion about the necessity of preventing terrorism, but also cautioning the danger 6. Including rights of cultural, sexual and social minorities Mowbray, Alastair. The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights. Oxford: Hart Publishing, 2004. 8 Anagnostou, Dia, and Evangelia Psychogiopoulou. The European Court of Human Rights and the Rights of Marginalised Individuals and Minorities in National Context. Leiden: Martinus Nijhoff Publishers, 2010. 9 Macken, Claire. Counter-terrorism and the Detention of Suspected Terrorists. New York: Routledge, 2011. 7. 6.

(14) of provisions such as arbitrary detention. For a detailed human rights law overview, from the positivist point of view, I particularly base on the Rehman’s “International Human Rights Law,”10 and for more sociological perspective I use Nickel’s “Making Sense of Human Rights.”11 Regarding the European Convention on Human Rights and the European Court of Human Rights, I use Reid’s “A Practitioner’s Guide to the European Convention on Human Rights,” 12 and Dijk and Hoof’s “Theory and Practice of the European Convention on Human Rights,” 13 which offers a full description of the procedural practice and case-law. The question whether the European Court of Human Rights has been adopting a coherent and comprehensive. 政治大. approach to the interpretation and evaluation of international law, is analyzed in. 立立. Magdalena Forowicz’s book “The Reception of International Law in the European. •‧ 國. ㈻㊫學. Court of Human Rights.”14 In George Letsas’s book “A Theory of Interpretation of. •‧. the European Convention on Human Rights,” 15 author discusses the problematic characteristic of the margin of appreciation, which may result in different. y. Nat. er. io. sit. understanding and implementation of the ECHR. In Loucaides’s “The European Convention on Human Rights Collected Essays,”16 author offers a compendium of. al. n. iv n C articles describing various aspects ofhthe ECHR as well e n g c h i Uas some important judgments of the European Court of Human Rights. The other publications and documents I am. using as a reference for my thesis, can be found in the section “References and Literature” at the end of this proposal.. 10. Rehman, Javaid. International Human Rights Law, Pearson Education Limited, Essex, 2010. Nickel, James. Making Sense of Human Rights, Blackwell Publishing, 2007. 1212 Reid, Karen. A Practitioner's Guide to the European Convention on Human Rights. London: Sweet & Maxwell Ltd, 2007. 13 Dijk, P. van, G. J. H. van Hoof, and A. W. Heringa. Theory and Practice of the European Convention on Human Rights. 3rd ed. The Hague ; Boston: Kluwer Law International, 1998. 14 Forowicz, Magdalena. "The Reception of International Law in the European Court of Human Rights." Universität Zürich, 2010. 15 Letsas, George. A Theory of Interpretation of the European Convention on Human Rights. Oxford: Oxford University Press, 2007. 16 Loucaides, Loukis G. The European Convention on Human Rights, Collected Essays. Leiden: Martinus Nijhoff Publishers, 2007. 11. 7.

(15) 1.5 Methodology The Chapter 2 analyses the background of the Article 8 of the ECHR. For this purpose I am discussing various aspects and documents relevant to the overall understanding of this article, its meaning and position in the context of the ECHR. Therefore, it is necessary to give a basic overview about the human rights law and also discuss its status and justification. I am also clarifying some of the basic terms, often encountered in human rights studies, such as the universality, margin of appreciation, necessity in democratic society or the overlapping consensus. In the second chapter, I am also further elaborating my understanding of the individual and. 政治大 collective human rights concept in order to avoid any misunderstanding regarding the 立立. •‧ 國. ㈻㊫學. usage of these two terms.. In the Chapter 2, I also touch upon the background of basic human rights. •‧. documents. However, for purpose of this thesis, it is not necessary to extensively. Nat. sit. y. review the evolution of human rights and its basic bills, treaties and declarations,. n. al. er. io. which preceded the current understanding and state of affairs. Therefore, I am. i Un. v. omitting detailed analysis of such documents.17 For my work, the crucial period of the. Ch. engchi. human rights movement can be linked to the time right after the World War II, and the following human rights movement in the second half of the twentieth century onwards. This movement is associated with the creation and adoption of the most important human rights conventions, such as ECHR, ICCPR, and ICESCR etc. For this thesis, I would introduce the European Convention of Human Rights and the European Court of Human Rights. The ECHR, signed on 4 November 1950 and operating since 3 September 1953 with the establishment of the European Court of Human Rights, is regarded as the most procedurally developed and effective judicial 17. For example see various national bills of rights and constitutions (the United States Declaration of Independence, the French Declaration of Rights of Man and of the Citizen etc.).. 8.

(16) structure protecting human rights. 18 19 In this chapter I would analyze some characteristics of the ECHR such as that it practically focus only on civil and political rights, ignoring the questions regarding economic, cultural rights. I will also elaborate on the assertion, which indicates that the ECHR is too brief on the subject of the minority rights.20 I will also discuss the scope and effectiveness of the European Court of Human Rights as well as the admissibility criteria for cases to be admitted. The Chapter 3 of my thesis will be the analysis of cases from the European Court of Human Rights. In certain cases, if it is necessary or interesting for my studies, there are references to cases from the ICCPR, ICECSR and CEDAW. In all the selected cases I want to. 治政大 highlight the linkage of the complicated 立立. relationship between. individual and collective human rights, most of them are referring to the Article 8. •‧ 國. ㈻㊫學. from the ECHR. However, I will also introduce two cases, regarding to other articles,. •‧. which are highly relevant and especially noteworthy, to the issues I concerned. My. sit. y. Nat. decision to include these two cases can also illustrate that the relatively complicated. io. n. al. er. relationship between different human rights can be identified also in other articles.. i Un. v. In addition to review the Article 8 “Right to respect for private and family life,” I. Ch. engchi. will also view the Article 5 “Right to Liberty and Security,” Article 7 “No Punishment without Trial,” and the Article 9 “Freedom thought, conscience and religion.” These articles can be understood in very different ways, resulting in quite opposite and contradictory implementations by States. In order to narrow the scope of my thesis, I decided to focus particularly on the Article 8, and analyze relevant cases from the European Court of Human Rights, where we can identify the conflict between individual and collective human rights. Article 8 is dealing with the private. 18. James Nickel, Making Sense of Human Rights (Blackwell Publishing, 2007) at p. 18. Javaid Rehman, International Human Rights Law (Pearson Education Limited, 2010) at p. 184. 20 Ibid p. 185 19. 9.

(17) and family life in a very broad sense; therefore we can come across various cases dealing not only with privacy, but also environmental protection, anti-terrorism measurements, minority rights etc. My attempt is not to elaborate each aspect or field in detail and find all relevant cases dealing with them; instead, my decision to select different cases is to illustrate the fact that the ambiguous relationship between individual and collective human rights can be found in all different types of cases dealing with various issues. Article 8 says that everyone's private and family life should be respected, without any interference by public authority unless “it is in accordance with the law and is. 治政大 security, public safety or necessary in a democratic society in the interests of national 立立 the economic well-being of the country, for the prevention of disorder or crime, for. •‧ 國. ㈻㊫學. the protection of health or morals, or for the protection of the rights and freedoms of. •‧. others.”21 In order to show the possible variance of interpretation of this Article, I. sit. y. Nat. have selected several cases for studying, namely the Dudgeon v. United Kingdom,22. io. al. er. and Gillan and Quinton v. the United Kingdom.23 Other cases I want to analyze in my thesis, discuss different issues such as the special obligation regarding vulnerable and. n. iv n C h e nv.gThe minority groups. In the case of Chapman i UKingdom,24 there is a conflict c hUnited between the Romani family, with a different style of living, and the majority of population. Other cases are discussing positive and negative obligations of state. In K v Germany,25 the German state is trying to protect its citizens, but breaches the rights of individuals. In the Lautsi and Others v. Italy,26 the plaintiff is accusing Italy of not protecting the rights of other than Christian citizens, because of the crucifixes in the. 21. ECHR, Article 8(2). ECHR, Dudgeon v the United Kingdom, Application No. 7525/76 (1981). 23 ECHR, Gillan and Quinton v. the United Kingdom, Application No. 4158/05 (2010). 24 ECHR, Chapman v. the United Kingdom, Application No. 27238/95 (2001). 25 ECHR, K v Germany, Application No. 61827/09 (2012). 26 ECHR, Lautsi and Others v. Italy, Application No. 30814/06 (2011). 22. 10.

(18) classrooms. The case of V.C. v. Slovakia,27 is dealing with the enforced sterilization of Romani women, in order to ensure “healthy population” for the majority. The case Von Hannover v. Germany,28 is discussing the freedom of the press and the right of the individual for privacy.. 立立. 政治大. •‧. •‧ 國. ㈻㊫學. n. er. io. sit. y. Nat al. 27 28. Ch. engchi. i Un. v. ECHR, V.C. v. Slovakia, Application No. 18968/07 (2011). ECHR, Von Hannover v. Germany (No. 2) [GC] - 40660/08 (2012).. 11.

(19) 2 ARTICLE 8 BACKGROUND. 2.1 Introduction This chapter gives an introduction to the general understanding of the Article 8 of the European Convention of Human Rights (ECHR). It is focusing on a number of aspects, of which relatively vague wording could raise possible uncertainties regarding their exact meaning as well as their concrete scope and applicability. For. 政治大 Court of Human Rights, to 立立 at least partially clarify such uncertainties. However, this. that reason, this Chapter uses references to different judgments made by the European. •‧ 國. ㈻㊫學. chapter is not meant to only to look at the Article 8 itself, but also to describe its actual position within the human rights regime. Therefore, in order to start with the. •‧. broadest and end with the narrowest, this chapter begins with quite general. Nat. sit. y. introduction to human rights. It talks not only about the principles and meanings of. n. al. er. io. human rights, but also about their justification and universality.. Ch. i Un. v. Nowadays, human rights are not only abstract ideas and unattainable dreams; on. engchi. the contrary they are imbedded in the international law system. Most of the states are parties to various international human rights conventions, and the questions of human rights are often included in their national laws and constitutions. For the better understanding of human rights status, there is a brief introduction and description of some of the basic human rights documents. This section briefly mentions and characterizes the so-called Bill of Rights, which consists of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and International Covenant on Social, Economic, and Culture Rights. The introduction to. 12.

(20) the European Convention on Human Rights and the European Court of Human Rights is in a separate subchapter, because of the high relevancy to the content of this thesis. At the end of this Chapter, there is a detailed analysis of the Article 8 of the ECHR as well as a concrete formulation of the understanding of the term of individual and collective human rights used in this thesis. This chapter is not meant to give an exhaustive amount of information about the human rights background, human rights theories, or all the relevant human rights documents. The intention is to give sufficient background information, which would allow reader with no particular educational experience in international law and human. 治政大make it easier to understand rights, to understand the complexity of this topic, and to 立立 the case studies later analyzed in the Chapter 3.. •‧ 國. ㈻㊫學. 2.2 Basic Understandings and Justification of Human Rights. •‧. Human rights, as we understand them nowadays, are rather a new phenomenon,. y. Nat. er. io. sit. dating back for only few decades. Despite this relatively young age, the notion of human rights has to be taken seriously by all states. With the enactment of various. n. al. Ch. i Un. v. international conventions and creation of international organizations, human rights. engchi. have gained a legal basis and a relatively stable position within the international law regime. Indeed, there have been numerous notions of human rights movements during the long history of mankind, however usually discriminating certain groups of people, either because of the nationality, ethnicity, religion, or sex. Therefore, these movements, even though important for the evolution of human rights, are incomparable with the movement after the World War II. Before the War, the idea of human rights usually did not extend beyond borders of sovereign states. In other words, the sovereign state was the final authority to decide on its citizens' rights,. 13.

(21) accepting no interference in domestic affairs by other states. Any kind of international and "beyond the sovereign state" entity, enforcing human rights or constraining states' action, was something unimaginable for a long period of time. However, in the response to Holocaust and other horrors of the World War II, the Universal Declaration of Human Rights, which unanimously adopted by the UN General Assembly in 1948, gave a crucial blueprint for creation of following human rights documents. “The acknowledgment of human right as an issue by the international community has led to the creation of a vast network of laws, treaties, and international organizations. Moreover, most states today recognize some limits to their sovereignty. 政治大. and, at least ostensibly, acquiesce to treaties and covenants designed to protect those. 立立. rights.”29. •‧ 國. ㈻㊫學. But how can we explain the existence of human rights? Who is entitled to have. •‧. them? Are they justifiable and universally applicable, or it is the West that is trying to. sit. y. Nat. export its ideas and principles to countries with completely different values and. io. al. er. traditions? These are several questions, to which this section is trying to find some possible answers. The aim of this Chapter is not to give a list of all existing theories. n. iv n C h e n gofchuman and views on the existence and justification h i Urights, which would be in any case impossible, instead it is trying to include those theories and ideas, which are interesting and meaningful for my research. As a starting point, we should define the actual meaning of human rights. Nickel’s definition offers a relatively complex and understandable description; therefore some of his basic characteristics and explanations have been included in this part. According to him, human rights are high priority and mandatory norms with. 29. Julie Harrelson-Stephens and Rhonda L. Callaway, "What Are Human Rights? Definitions and Typologies of Today's Human Rights Discourse," in Exploring International Human Rights, ed. Rhonda L. Callaway and Julie Harrelson-Stephens (London: Lynne Rienner Publishers, 2007), at p.4.. 14.

(22) strong justification, because they are dealing with serious issues of human life. People are the right-holders and states are the principal addressees of human rights. This however does not mean that states are giving these rights by themselves, they are only addressing them. Human rights should be viewed rather as minimal standards, which constrain states, the main addressees, from different types of threats and acts, which could deprive people of their dignity. Nickel comments that: “human rights aim at avoiding terrible rather than achieving the best.” 30 This is a very important observation, because if human rights would be dealing with some marginal issues, their general. 治政大 could be undermined as acceptance would be endangered globally, and their status 立立 well. To be more specific, there are many differences between countries around the. •‧ 國. ㈻㊫學. globe regarding their resources and capabilities to ensure certain level of services.. •‧. This means that not every country can provide the same standards to its citizens.. sit. y. Nat. Currently, there have been debates in many developed countries whether for example. io. al. er. the right to free education should also cover the higher education, including universities. At the same time, in many developing countries even the elementary. n. iv n C education is often considered to behtoo luxurious i Usome families to provide their en g c h for children with.. Thus, if we keep human rights as minimal standards, they could remain not only achievable in general, but also more attractive for all types of states, regardless their economic situation and capabilities. Indeed, we still should keep on mind that these are only the minimum standards, which must be secured, but states should try to go beyond these, if they have such opportunities. We should stay realistic and try to secure the most basic rights first, no matter how great ideas of broad spectrum of 30. James Nickel, Making Sense of Human Rights (Blackwell Publishing, 2007) at p. 36.. 15.

(23) human rights we might have. If such broad spectrum of rights was required from all countries at the same time and regardless their current capabilities, the whole notion of human rights could lead to the totally opposite conclusion, because many States would simply view these rights as unattainable and too expensive dreams. Shue defines the basic rights as “minimum reasonable demands upon the rest of humanity.”31 He argues that this set of rights must be secured first; otherwise the other rights cannot be enjoyed. Among these basic rights belong security rights as well as subsistence rights. Without enjoying the right to physical security, we could hardly enjoy any other rights, because of the threat of murder, rape, or physical punishment.. 治政 The so-called subsistence rights are essential as well大 because “deficiencies in the 立立 means of subsistence can be just as fatal, incapacitating, or painful as violations of. •‧ 國. ㈻㊫學. physical security.”32 Under the term subsistence, we could find issues of sufficient. •‧. nourishment, proper health care, access to drinking water etc. According to Shue’s. sit. y. Nat. understanding, security rights and subsistence rights are rather parallel in their. io. n. al. er. existence, and should be fulfilled simultaneously.. i Un. v. The question about who has human rights could be answered relatively easily,. Ch. engchi. just by looking at the term “human rights” itself. We can assume that simply by being a human being, we have human rights. Since all human beings have these rights, regardless the place they live or their race or religion, they are universal, which means that they protect all people without exception. The Universal Declaration of Human Rights in its first Article states that: “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act. 31. Henry Shue, "Basic Rights," in Exploring International Human Rights, ed. Rhonda L. Callaway and Julie Harrelson-Stephens (London: Lynne Rienner Publishers, 2007), at p.16. 32 Ibid. at p.18.. 16.

(24) towards one another in a spirit of brotherhood.”33 We can argue that human rights are egalitarian, which means that all people are equal and there are no differences between them. However, from the historical perspective, this stance is relatively new, at least on the global scale, coming into actual practice in the second half of the twentieth century. It would be wrong to assume that there was no substance of human dignity and human rights until the twentieth century; on the contrary, we can find many of these conceptions rooted in Buddhism, Christianity, Hinduism, or Islam. However, as James comments, “the universalist potential was not realized due to intolerance,. 治政 racism, sexism, and so on,” therefore we could not 大 really talk about the universal 立立 34. human rights. Indeed, if we critically look at the actual implementation of the. •‧ 國. ㈻㊫學. egalitarian understanding of human rights in the last century, we can observe that it. •‧. has been facing many problems as well. Issues such as racial segregation in the. sit. y. Nat. United States, problem of self-determination of the formal colonies after the World. io. al. er. War II, apartheid in the South Africa, or the unequal position of women in Muslim countries, are only few of many setbacks and complications contesting the actual. n. iv n C U century, there is still large universality of human rights. Evenhin e the n gtwenty c h i first. number of countries, where the conditions regarding human rights are far from the ideal situation and need to be improved.35 If we accept that every living person has equal human rights, then we come to an important finding. Human rights are independent on national boundaries or recognition by governments. Although the state is the main addressee of human rights, it is not necessarily the positive protagonist. In some countries the administration is 33. The Universal Declaration of Human Rights (UDHR), 1948. Article 1. Stephen James, Universal Human Rights (LLFB Scholarly Publishing, 2007), at p. 8. 35 More information about the situation can be found in the annual Human Development Report, published by the United Nations Development Programme. 34. 17.

(25) not capable to maintain the human rights standards, and in some cases it is actually the administration itself that is mistreating its citizens, restricting their human rights, or treating them unequally. However, also for this reason, human rights can very well serve as international standard of evaluation. Simply by looking at the position of basic human rights in one concrete country, we can relatively well estimate the situation regarding the relationship between the government and citizens. The Office of the United Nations High Commissioner for Human Rights publishes the Human Rights Index36, which comprehensively describes the human rights situation around the world. This existence of human rights regardless governments and boundaries. 政治大. supports another characteristic of human rights, the inalienability. In other words,. 立立. governments do not give human rights to us, for this same reason they also cannot. •‧ 國. ㈻㊫學. take them from us. However, the issue of inalienability can be viewed as relatively. •‧. controversial, because under many circumstances human rights can be actually limited and temporarily constrained. Moreover, in some circumstances people can. y. Nat. specific position requiring special working regime.. al. er. io. sit. give up some of their rights, for example when entering the army or taking some. n. iv n C h ehuman On what grounds can we justify There are various theories and hi U n g crights?. debates trying to answer this question. They would include linkages to natural law, role of religion, anthropology, psychology etc. However, all these attempts to find a single and fully accepted theory that would give us a sufficient answer regarding the justification of human rights have not been successful. The non-existence of single grounded theory might be perceived as disadvantage or shortcoming, however in my opinion it merely shows the importance of human rights question. The more scholars. 36. For more information see the United Nations Human Rights Office of High Commissioner, Human Rights Index webpage: http://uhri.ohchr.org/en. 18.

(26) and academics are being involved in researches and discussions, the more are human rights perceived as a living issue that is also more visible to general public. In order to illustrate this difficult situation, it is appropriate to briefly describe some of the interesting positions we can take, to justify the existence and universality of human rights. For this purpose, this Chapter includes a brief look at the prudential and utilitarian justification of human rights, explaining differences between relativist and universalist understandings, and also giving a glimpse at the so-called four secure claims elaborated by Nickel.. 政治大 who accepts and supports human rights, simply because it is in his/her interest to do 立立. The prudential understanding can be simply illustrated by an example of person,. •‧ 國. ㈻㊫學. so. This person realizes that in order to live in more safer and harmonious society, where the observance of human rights by the higher authorities makes life more. •‧. secure and flourishing, it is in his/her interest to support human rights. Because “if. sit. y. Nat. human rights generally serve people’s most basic prudential interests, and generate. n. al. er. io. widely available secondary benefits as well, this helps explain why people have good. i Un. v. reasons to respect them and to demand that their governments respect and protect. Ch. engchi. them.”37 The Utilitarian justification can be explained by presuming that “what is best for the general welfare should be promoted.” In other words, the main determination is achieving happiness and diminishing suffering. Under this understanding, the basic human rights, such as protection of life and other liberties, would be profitable for the general welfare, maximizing the happiness, and therefore justifiable. Especially interesting is Nickel’s idea that all human beings have four secure and moral claims. These so-called “claims” can be simply understood as set of basic human rights. They include a claim (right) to have a life and to lead one’s life. These 37. James Nickel, Making Sense of Human Rights (Blackwell Publishing, 2007), at p. 57.. 19.

(27) two are followed by a secure claim against severely cruel or degrading treatment, and against severely unfair treatment.38 There are both positive and negative obligations encompassed in these rights. For example the secure claim to have a life can be understood from both aspects: someone has a right to live and not to be murdered, but also the government should make positive actions to prevent murders from happening. It is also important to look at this claim from much broader perspective. It is not only question of letting somebody live and prevent others to kill him, this right to live includes many other things, we might not see at the first sight. We cannot live without proper nourishment, without sufficient healthcare or shelter. The secure claim to lead. 政治大. one’s life encompasses the freedom and independency of human beings to decide. 立立. their life path freely. Under this claim we would find not only strong argument against. •‧ 國. ㈻㊫學. slavery, but also to right to free movement, marriage or belief.. •‧. Again, this claim includes both positive and negative obligations, where the. sit. y. Nat. positive would include for example the legal framework to ensure these rights, but. io. al. er. also to provide favorable conditions as well as protection. The third and fourth claim. n. could be included into the first two claims; nevertheless it is useful to briefly describe Nickel’s own understanding. iv n C h escope. of their focus might hi U n g cTheir. look similar and. overlapping; however after closer examination, we can find some distinctive differences. The secure claim against severely cruel or degrading treatment basically condemns any caused suffering and inhumane treatment. The secure claim against severely unfair treatment on the other hand focuses on cases of especially intense injustice. This would cover right to fair trial as well as protecting innocent people against imprisonment. These four areas of rights should be obligations to everyone, therefore respected and protected. When fulfilled, these claims would allow every. 38. James Nickel, Making Sense of Human Rights (Blackwell Publishing, 2007), at p. 62.. 20.

(28) person to live a good and decent life. Nickel concludes that: “because these principles prescribe a secure floor of respect, protection, and provision for each person, they hold a prospect of grounding the universality of specific human rights.”39 Donnelly is suggesting the term "relative universality," as a middle course between radical relativism and radical universalism. Whereas radical realism considers culture as a source of all values, universalist's approach sees all values as well as human rights to be entirely universal without any cultural influence.40. 2.3 Basic Human Rights Documents. 政治大. The necessity to create an international framework, which would protect human. 立立. rights of the individual human beings, regardless their nationality, race, or religion,. •‧ 國. ㈻㊫學. began to gain a significant support after the end of the World War II. The gradually. •‧. revealed atrocities of Holocaust mobilized the general public as well as politicians to face this new situation by establishing fundamentally different and internationally. y. Nat. er. io. sit. recognized human rights frameworks. During the Wartime period, many states failed to ensure even basic rights of their citizens. Moreover, in some cases it was the State. n. al. Ch. i Un. v. that was actually supportive to diverse atrocities committed against either concrete. engchi. ethnic groups or various minorities in broader sense. These were not only Jews, but also Roma people, disabled people, homosexuals etc. The experience from the World War II clearly revealed that mechanisms at the domestic level could not effectively ensure sufficient human rights enforcement, and for that reason it was necessary to create international mechanism, which would provide sufficient safeguards. The notion of human rights after the World War II was indeed something unique, especially because the world powers agreed to sit together and discuss the creation of 39 40. James Nickel, Making Sense of Human Rights (Blackwell Publishing, 2007), at p. 62. Jack Donnelly, International Human Rights (Westview Press, 2007), at p. 37.. 21.

(29) the United Nations. Mark Mazover is describing two most common explanations of this human rights success after the World War II in the article “The Strange Triumph of Human Rights.”41 He titles these explanations the “Eleanor Roosevelt version” and the “Adolph Hitler version.” President Harry S. Truman appointed Eleanor Roosevelt as a delegate to the UN General Assembly, where she chaired the committee that drafted the Universal Declaration of Human Rights. Her “version” symbolizes the visionary individuals who determinedly advocated and fought for the human rights.42 “Hitler version,” on the other hand symbolizes the action, people took to avoid similar situation to Holocaust and the horrors of the War, to ever happen again.. 治政 However, both explanations do not really clarify大 the difference from previous 立立. attempts. There were many tyrants as well as human rights advocates in the history,. •‧ 國. ㈻㊫學. but they did not have the analogous effect to the post war situation. What was then the. •‧. key difference and main reason that contributed to the human rights triumph in the. sit. y. Nat. post war period? To better understand the development, which led to this “triumph,”. io. al. er. we have to understand the changes in the perception of human rights during the first. n. half of the twentieth century. In addition to that, we should also focus on the evolution. i n C U h e ncontext. of United Nations in the light of historical gchi. v. The UN predecessor, the League of Nations, was founded after the World War I. with its main purpose to serve as a forum, which could maintain the peace and solve disputes between states through peaceful dialogue. During this time, human rights issues focused particularly on the minority rights and on the right to selfdetermination.43 This concrete focus was reflecting the situation on the European continent in the first half of the twentieth century. After the collapse of the Austro-. 41. Mark Mazower, The Strange Triumph of Human Rights, 1930-1950. Ibid. at p. 380. 43 Stephen James. Universal Human Rights. New York, LFB Scholarly Publishing LLC, 2007, at p. 31-32. 42. 22.

(30) Hungarian Empire, by using the right to self-determination, some nations were allowed to found their own states. This consequently led to the establishment of numerous new countries on the European continent. However, the problem was that not all the nations were allowed to claim the right to self-determination in order to create their own country, or simply to decide their own fate. This situation was a tickling bomb, which eventually exploded in 1938. The Nazi Germany seized the opportunity to proceed with its revisionist policy toward its neighbors, Czechoslovakia and Poland, in the name of the right to the self-determination for the German minorities living on the territory of these countries.. 治政大a new international regime, After the end of War, it was necessary to establish 立立. which could protect basic human rights even “against the encroachment by the. •‧ 國. ㈻㊫學. national States’.” 44 Such approach would allow creating an effective institution,. •‧. which would have more powers to solve the human rights issues by an active. sit. y. Nat. involvement. However, the feasibility of such plan is questionable, because the big. io. al. er. powers would never join the organization if it could intervene in their internal affairs.. n. As Mazower concludes, “so far as the superpowers were concerned, human rights were strictly for export.”45. Ch. engchi. i Un. v. The need to defend the individual rights instead of the minority rights was there from the beginning of the talks during the wartime period. This is understandable if we take the collective rights as one of the causes, or pretexts for the World War II. Nowadays we know that the Hitler’s interest in the German minority in Sudetenland was not really because of the people’s welfare. Ironically, Hitler who was eagerly. 44 45. Mark Mazower, The Strange Triumph of Human Rights, 1930-1950, at p. 385. Ibid. at p. 397.. 23.

(31) fighting for the rights of the one minority in Czechoslovakia and Poland before the World War II basically annihilated another European minority in the next few years.46 This stance of switching the human rights focus was also strongly supported by the Czechoslovak exile President Edvard Beneš, who wanted to see Germans out of Czechoslovakia immediately after the end of the World War II. However, nowadays the expulsion of Germans out of the Czechoslovakia could be seen as revenge more than anything else, which caused deaths of thousands of people.47 Evidently, right after the World War II, neither collective, nor individual human rights were available for the members of the German minority. Quite ironically, we could say that one of. 治政大 was the timing and the the reasons for the “strange triumph of the human rights” 立立 intensity of human rights’ abuses during the wartime period. The Revealing of. •‧ 國. ㈻㊫學. Holocaust horrors activated the whole spectrum of population around the globe and. •‧. put the human rights issues in the front of everybody’s attention.. sit. y. Nat. As a consequence, the Universal Declaration of Human Rights (UDHR) was. n. al. er. io. adopted by the General Assembly on 10 December 1948. The Declaration. i Un. v. encompasses 30 articles, which cover the most fundamental human rights. The. Ch. engchi. Declaration contains both types of rights, civil and political as well as social and cultural rights. It condemns discrimination, 48 slavery and servitude, 49 torture and inhumane treatment.50 It also contains right to freedom of thought, conscience and religion, 51 opinion and expression, 52 and association. 53 The social, economic and. 46. Systematic state-sponsored killing of approximately six million of Jews during the World War II. Mark Mazower, The Strange Triumph of Human Rights, 1930-1950, at p. 388. 48 UDHR, Art. 1-2. 49 Ibid. Art. 4. 50 Ibid. Art. 5. 51 Ibid. Art. 18. 52 Ibid. Art. 19. 53 Ibid. Art. 20. 47. 24.

(32) cultural rights are represented for example by the right to have a cultural life,54 right to rest,55 or by the right to work.56 The Declaration itself is not legally binding, and we can understand it rather as a proposal or manifesto of moral aspirations. The Preamble proclaims the Universal Declaration of Human Rights “as a common standard of achievement for all peoples and all nations.” Although lacking the legally binding power, the Declaration is giving an important guidance to States, but also a blueprint to following international human rights conventions. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights came into existence in the same. 治政大 different sets of rights year (1976). The existence of two separate covenants covering 立立 clearly illustrates the situation during the Cold War Era, and the inability of the two. •‧ 國. ㈻㊫學. rivals, the United States and the Soviet Union, to find a common language. Whereas. •‧. the “Capitalist West” perceived the civil and political rights as the most important, the. sit. y. Nat. “Communist East” favored the economic, social and cultural rights to be achieved. io. al. er. before the actual realization of the civil and political rights. This situation also brought a vivid discussion regarding the importance of each group of rights and their. n. iv n C U perceived as negative rights, h e nrights possible hierarchy. The civil and political h ioften g care. whereas the economic, social and cultural rights are considered to be positive rights, requiring costly actions by governments.57 However, this stance has been often criticized for being oversimplifying the relatively complex situation. We can illustrate this problem on the issue of the law enforcement, concretely on the right to have access to legal remedies, which is encompassed in the Article 2 of the ICCPR. This right is among the civil and political 54. UDHR. Art. 27. Ibid. Art. 24. 56 Ibid. Art. 23. 57 Jack Donnelly. International Human Rights (Westview Press, 2007), at p. 5-6. 55. 25.

(33) rights, but in the reality, the access to legal remedies would not be possible without the existence of courts, without proper education of judges, establishment of prisons etc. One of the critiques Jack Donnelly comments that: “the moral basis of the positive-negative distinction is also questionable. Does it really make a moral difference if one kills someone through neglect or by positive action?”58 Currently, the number of signatories to both Conventions is similar (167 ICCPR, 160 ICESCR). All three documents (UDHR, ICCPR, and ICESCR) follow the similar structure. Both the ICCPR and ICESCR begin with the right to self-determination, which is identically worded. The ICCPR is divided into six parts, consisting of fifty-three. 政治大. articles, and the ICESCR is divided into five parts, which consist of thirty-one articles.. 立立. The ICCPR is monitored by the Human Rights Committee (HRC), whereas the. •‧ 國. ㈻㊫學. ICESCR by the UN Committee on Economic Social and Cultural Rights.. •‧. The following table is transformed from Donnelly’s chart,59 which was originally. sit. y. Nat. only referring to the so-called International Bill of Rights (UDHR, ICCPR, ICESCR),. io. er. omitting the ECHR. There is added column referring to the ECHR in order to make. al. n. an interesting comparison of the four important human rights documents, and also to. i n C U h e they illustrate their scope, and range of rights n gencompass. chi. v. Table 1 Rights included in basic human rights documents UDHR. ICCPR. ICESCR. ECHR. Rights. 1, 2. 2, 3. 2, 3. 1, 14. Life. 3. 6. 2. Liberty of security of person. 3. 9. 5. Protection against slavery. 4. 8. 4. Protection against torture and cruel and inhuman punishment. 5. 7. 3. Recognition as a person before the law. 6. 16. 2. Human Rights Document. Equality of rights without discrimination. 58 59. Jack Donnelly, International Human Rights (Westview Press, 2007), at p. 27. Ibid. at p. 7.. 26.

(34) Equal protection of the law. 7. 14, 26. 6. Access to legal remedies for rights violations. 8. 2. 13. Protection against arbitrary arrest or detention. 9. 9. 5. Hearing before an independent and impartial judiciary. 10. 14. 6. Presumption of innocence. 11. 14. 6. Protection against ex post facto laws. 11. 15. 7. Protection of privacy, family, and home. 12. 17. 8. Freedom of movement and residence. 16. 12. Seek asylum from persecution. 14. Nationality. 15. Marry and found a family. 16. Own property. 17. 23. 18 治政 Freedom of opinion, expression, and the press 大 19 立立 20 Freedom of assembly and association. Freedom of thought, conscience, and religion. 10. 18. 9. 19. 10. 21, 22. 11. 21. Social security. 22. 9. Work, under favorable conditions. 23. 6, 7. Free trade unions. 23. 22. 8 7. y. Nat. 24. 25. •‧. •‧ 國. ㈻㊫學. Political participation. Rest and leisure. 6, 7. Health care and social services. 25. 12. er. n. al. sit. 25. io. Food, clothing and housing. Special protection for children Education Participation in cultural life. Ch. engchi. A social and international order needed to realize rights. i25v n U 26. 12. 24. 10 13, 14. 27. 15. 28. Self-determination. 1. Humane treatment when detained or imprisoned. 10. Protection against debtor's prison. 11. Protection against arbitrary expulsion of aliens. 13. Protection against advocacy of racial or religious hatred. 20. Protection of minority culture. 27. 1. *Modified: Jack Donnelly, International Human Rights (Westview Press, 2007), at p. 7 **Numbers represent concrete Articles dealing with these rights. 27.

(35) 2.4 European Convention of Human Rights – Characteristics and Structure The ECHR was drafted by the Council of Europe, opened for the signature on 4 November 195060, and entered into force on 3 September 1953. It also established the European Court of Human Rights. Although it is a regional system, it is considered to be the most procedurally developed and effective judicial structure protecting human rights currently in practice. 61 The ECHR has been also largely influencing the development of norms in the public international law, including due process standards, environment questions, and state responsibility.62 Currently, there are 47 member. 政治大 states to the Convention covering about 800 million people. According to the Article 立立. •‧ 國. ㈻㊫學. 1 of the Convention: Obligation to respect human rights "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms. •‧. defined in Section I of this Convention."63. Nat. sit. y. The ECHR is divided into three parts. Articles 2-18 constitute the Section I, which. n. al. er. io. is giving a description of the rights as well as fundamental freedoms provided in the. i Un. v. Convention. Articles 19-51 constitute the Section II: European Court of Human. Ch. engchi. Rights, which sets up the rules and explains the procedures of the European Court of Human Rights. In this section there can be also found the admissibility criteria64, which are discussed in more detail later in this chapter (see 2.5). The Section III: Miscellaneous Provisions describes various issues such as territorial application of the Convention,. 65. reservations,. 66. denunciation,. 67. the question of signature and. 60. The United Kingdom was the first country to ratify the ECHR on March 8, 1951. Javaid Rehman, International Human Rights Law (Pearson Education Limited, 2010), at p. 184. 62 Ibid. at p.186. 63 ECHR, Article 1: Obligation to respect human rights. 64 Ibid, Article 35: Admissibility criteria. 65 ECHR, Article 56: Territorial application. 66 Ibid. Article 57: Reservations. 67 Ibid. Article 58: Denunciation. 61. 28.

(36) ratification.68 There are currently 14 Protocols open to signature, which are expanding guarantees provided in the ECHR,69 or amending its system.70 When interpreting the ECHR, there are several considerations, which should be taken into consideration. Louciades71 identifies nine in total, including: a) the context of Convention, including its Preamble, where the text and the wording of an article serve as a point of departure72 b) the general rules of international law, in particular those expressed in the Vienna Convention on the Law of Treaties (VCLT)73 c) special features of the ECHR d) the pragmatic interpretation of the text e) in case of ambiguity the extended meaning of the relevant obligations should be preferred to. 治政大 that which would restrict such obligation f) travaux préparatoires 立立. 74. can be taken into. account as supplementary means of interpretation g) similar provisions from other. •‧ 國. ㈻㊫學. international instruments may be taken into account h) national law practice can be. •‧. taken into consideration, however it does not have a decisive power for the. y. sit. io. n. al. er. affairs.75. Nat. interpretation i) the Convention must be interpreted in the light of current state of. i Un. v. The ECHR, including its Protocols, has been criticized for omitting several. Ch. engchi. important rights. Compared to the ICCPR, ECHR does not provide the right to selfdetermination, which is generally considered to be one of the principal rights in the 68. ECHR. Article 59: Signature and ratification. Protocol 1, Protocol 4 (securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto), Protocol 6 (concerning the abolition of the death penalty), Protocol 7 (concerning crime and family), Protocol 12 (concerning discrimination) and Protocol 13 (concerning the abolition of the death penalty in all circumstances) 70 Protocol 11 (restructuring the control machinery established thereby) and Protocol 14 (amending the control system of the Convention) 71 Loukis G. Loucaides. The European Convention on Human Rights, Collected Essays. Leiden: Martinus Nijhoff Publishers, 2007. 72 See the Belgian Linguistic Case (No 2) from 1968, which is addressing the question of languages regarding the right to education, under the ECHR. 73 Convention signed on 23 May 1969 and effective since 27 January1980, codifying important basis of international law 74 Used for the clarification of intentions of treaty. According to the Articles 31 and 32, the VCLT places this form of interpretation as secondary and less important. 75 Loukis G. Loucaides. The European Convention on Human Rights, Collected Essays. Leiden: Martinus Nijhoff Publishers, 2007. At p. 15-16. 69. 29.

(37) international human rights law. Many other rights described in the ICCPR are relatively limited in the ECHR, e.g. family rights and rights of aliens. The question of minority rights is also relatively neglected. Moreover, the ECHR is only focusing on civil and political rights, ignoring the question of economic, social and cultural rights. Despite the absence of various rights, the actual application and implementation of the ECHR has been successful in terms of protecting individual human rights in the member states to this Convention.. 2.5 European Court of Human Rights – Admissibility Criteria and. 立立. 治政Procedures 大. Important characteristic of the ECHR is that individuals have right to raise a. •‧ 國. ㈻㊫學. complaint to the European Court of Human Rights. According to Article 34 "The Court may receive applications from any person, non-governmental organization or. •‧. group of individuals claiming to be the victim of a violation by one of the High. y. Nat. io. sit. Contracting Parties of the rights set forth in the Convention or the protocols thereto.. n. al. er. The High contracting Parties undertake not to hinder in any way the effective exercise. Ch. i Un. v. of this right."76 This article includes the ratione personae condition, meaning that. engchi. only the person, or other subjects mentioned in the Article 34, claiming to be victims of the violation of the ECHR, can bring the complaint. Individuals or other subjects can bring complaints against States, either for violating some rights under the Convention, or for not effectively protecting them. However, only States, which are parties to the Convention, can be brought to the Court. Similarly, complaints against rights not included in the Convention, would necessarily cause the inadmissibility of the case. This situation is coined by the term ratione materiae.. 76. ECHR, Article 34.. 30.

(38) There is a specific Article 35 in the ECHR,77 which is dealing with admissibility criteria. These criteria include the exhaustion of local remedies, which means that unless the claimant goes through the whole legal system in his country (and lose); his/her case would be inadmissible. After losing the case at the highest instance, the application to the Court must be submitted within six months. However there is an exception to this condition, relating to "instances of continuing violations through the existence of offending legislation and administrative practices." 78 The Article 35 states that: "the Court may only deal with the matter after all domestic remedies have been exhausted, according to generally recognized rules of international law, and. 政治大. within a period of six months from the date on which the final decision was taken."79. 立立. In order to prevent duplication of examination by various international bodies,. •‧ 國. ㈻㊫學. "the Court shall not deal with any application submitted under Article 34 that: a) is. •‧. anonymous; or b) is substantially the same as a matter that has already been examined. sit. y. Nat. by the Court or has already been submitted to another procedure of international. io. al. er. investigation or settlement and contains no relevant new information."80 Although the. n. identity of claimant is required, it can be disclosed to public under the Rules of Court.. Ch. engchi. i Un. v. According to the third paragraph of this Article: "the Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; or b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case 77. ECHR, Article 35. Javaid Rehman, International Human Rights Law (Pearson Education Limited, 2010), at p. 226. 79 ECHR, Article 35(1). 80 ECHR, Article 35(2b). 78. 31.

(39) may be rejected on this ground which has not been duly considered by a domestic tribunal. 81 The section with the "significant disadvantage" was added relatively recently by the additional Protocol 14 in order to relieve the workload of the Court, which could not work effectively and was loaded with unresolved cases. However there is still ongoing discussion about how to measure the significance of disadvantage. According to the Research Report issued by the ECHR: "the severity of a violation should be assessed by taking into account both the applicant's subjective perception and what is objectively at stake in a particular case."82 One of the main. 治政大 of cases of which the reasons for amending this Article was the growing number 立立 majority was found inadmissible. Because of the large amount of cases the Court has. •‧ 國. ㈻㊫學. been working very slowly and delivering judgments after long time. The situation can. •‧. be clearly illustrated by Figure 1, which shows that majority of cases are ill founded. al. y. er. io. Figure 1. sit. Nat. and only a small percentage of all cases receive a judgment.. n. Major procedural steps in processing of applications 60000 56000 52000 48000 44000 40000 36000 32000 28000 24000 20000 16000 12000 8000 4000 0. Ch. engchi. i Un. v. 1511 5359 2607 2393. 1880 1200 2956. 1719 3232. 1734. 6674. 6203. 4416. 3456 50677. 800 900. 750. 1686. 1717. 17850. 18250. 2002. 2003. 2447 38575 27600. 28160. 27059. 2005. 2006. 2007. 30163. 33067. 20350. 2004. Application inadmissible or struck out. 2008. 2009. 2010. 2011. Applications communicated. Applications - judgement delivered. Source: ECHR, Analysis of statistics 2011, published in 2012. 81 82. ECHR, Article 35(3), Revised under Article 12, Protocol 14. Research Report “The new admissibility criterion under Article 35 § 3 (b) of the Convention: case-law principles two years on,” European Court of Human Rights (2012), at p. 5.. 32.