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People use the word “rights” in different senses, and so we need to clarify what they mean.
“Rights” may refer to legally enforceable freedoms. Thus, when lawyers talk about the “right to vote”, they may be referring to legal rights contained in the national acts and perhaps also to the international treaty obligations which place a duty on governments to organize elections. For instance, the countries, which have ratified the First Protocol to the European Convention on Human Rights (ECHR) “undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the people in the choice of the legislature” (Art 3).
“Rights” may also be used to mean something else. Campaigners for voluntary euthanasia in the U K, for example, say that people have the right to die with dignity and with the assistance of their doctor. They are not suggesting that there is currently such a legal right; rather, they use the word “right” as a rhetorical device to add weight to their moral argument in favour of mercy killing. Many philosophers prefer to avoid using the language of rights in such contexts.
Today, the term “human rights” is often used to describe people’s residual liberties from interference by State authorities. After the Second World War many countries around the world, came to recognize that rights against State interference and coercion were no longer a question solely for national law. Since the late 1940s, many international treaties have been established under which governments of Signatory States agree with one another to respect the basic freedoms of their citizens. Under the auspices of the United Nations, the Universal Declaration of Human Rights was established in 1948. Several regional treaties were subsequently created, including the ECHR, which came into force in 1953. These treaties were new forms of international law. First, the countries, which are parties to them, agree with one another to respect the rights of people within their jurisdiction; i.e. international law had been regarded as only regulating the relations between States. Secondly, these treaties established tribunals and procedures for monitoring and enforcing the parties’ compliance with their treaty obligations.
The term “human rights” is not limited to the freedoms people have from unjustified coercion by State authorities. Several international treaties seek to protect political rights to participate in collective decision-making, such as the First Protocol to the ECHR. “Human rights” also extends to some economic and social entitlements.
There are many jurisprudential debates about the nature of rights and how they are expressed in law. There are two particular controversies: what is the source of human rights; and are they universally applicable to all times and places? For many legal theorists, human rights exist because they are “natural” or “inalienable” attributes to being a human being. Rosalyn Higgins states that:
Human rights are rights held simply by virtue of being a human person. They are part and parcel of the integrity and dignity of the human being. They are thus rights that cannot be given or withdrawn at will by any domestic legal system [Problems and Processes: International Law and How We Use It, 1994, Oxford: OUP, p 96].
In the past, there have been great philosophical debates over whether such “natural” rights existed, but with the drafting of international legal charters to human rights after the Second World War, these controversies have become less pressing for lawyers and politicians, as they are now able to see those instruments themselves as the source of human rights.
Another debate around the nature of human rights is, therefore, whether they are universal and timeless, or contingent on culture and temporary. This is often part of a more general debate about the nature of liberal democracy. Some legal scholars are anxious to stress the universal aspects of human rights, others are less certain.
The rights set out in international treaties seeking to protect liberty rights are important to the system of liberal democracy for two main reasons. One is that rights to liberty go to the core of what it means to be a human being. Without them, a person is little more than an automaton – a member of an army rather than a citizen belonging to a community. In other words, such rights provide a basis from which to argue that there are areas of personal freedom, which should not be violated by State authorities (including Parliament and the judiciary). A second reason is that many liberties are the pre-conditions for meaningful democracy. Parliamentary elections and the process of legislation are valuable ways of making collective decisions for a society only if people’s basic freedoms are respected. Suppose, for example, a government calls an election, but bans other political parties, suppresses dissenting opinion, confiscates critical literature, puts its opponents in jail without fair trial, kills them or imposes internal exile. Even if the governing party wins a majority of votes, its election and its subsequent actions would lack legitimacy.
UNDERSTANDING MAIN POINTS___________________________________
3. Answer the following questions using the information from the text:
1. What does the word “right” refer to?
2. What does “people have the right to die with dignity” mean?
3. What factors brought about the establishment of the Universal Declaration
of Human Rights?
4. What do the countries agree upon in 1950s?
5. Is the term “human rights” limited to the freedoms from unjustified coercion
by authorities?
6. What are the two controversies in jurisprudential debates about the nature
of rights?
7. Do all legal scholars are certain about the universal aspects of human rights?
8. What are the two main reasons of the importance of protection liberty rights
to the system of liberal democracy?
4. Give the word families of the following words. Mark the meaning in
which the following words are used in the text:
right
a) title to or an interest in any property
b) freedom to exercise any power conferred by law
c) any other interest or privilege recognized and protected by law
authority
a) power delegated to a person or body to act in a particular way
b) a governing body
c) a judicial decision or other source of law used as a ground for a
legal preposition
state
a) the condition of a person or thong with respect to circumstances
b) a nation or a government, a country
c) a part of the USA
term
a) the time or period, usually fixed
b) a word defining something in a particular field
c) pl. conditions and stipulations
d) pl. words expressed in a specified way
5. Write down the plan for this text in the form of questions. Ask your partners to answer them.
6. On December 10, 1948 the Declaration of Human Rights was issued, defining the civil, political, economic, social and cultural rights of human beings. Below are extracts from the first 10 articles (there are 30 in all).
A) Complete the text by choosing the correct word from the box.
B) Give the information of each article in your own words and comment on each.
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Article 1. All human beings are born … and equal in dignity and rights.
Article 2. Everyone is entitled to all the rights and … set forth in this
Declaration, without distinction of any kind, such as …,
colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.
Article 3. Everyone has the right to life, … and security of person.
Article 4. No one shall be held in … or servitude (рабство); slavery and
the slave trade shall be prohibited in all their forms.
Article 5. No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or ….
Article 6. Everyone has the right to recognition everywhere as a person
before the ….
Article 7. All are equal before the law and are entitled without any
discrimination to equal protection of the law.
Article 8. Everyone has the right to an effective … by the competent
national tribunals for acts violating the fundamental rights
granted him by the constitution or by law.
Article 9. No one shall be subjected to arbitrary arrest, …or ….
Article 10. Everyone is entitled in full equality to a fair and public hearing
by an independent and impartial …, in the determination of his
… and obligations and of any criminal … against him.
7. Express your thoughts on the subject.
· What is your understanding of the term “human rights”?
· How can your liberty be interfered?
· How can your rights be violated?
· What system of protection of human rights violations does your country have? If you were President which system would you suggest?
Pre-reading tasks ____________________________________________________
8. What do you understand under the term human rights? Predict the list of words which to your mind could be used in the text.
9. Match the following English words and expressions with their Ukrainian equivalents:
1. key objective
2. supra-national judicial tribunal
3. alleged violations
4. degrading treatment
5. prohibition of torture
6. invasions of privacy
7. economic well-being
8. libertarian values
i. втручання в приватне життя
j. основне завдання
k. поводження, що принижує
гідність
l. економічний добробут
m. наднаціональний, міждержавний суд
n. лібертаріанські цінності
o. припустимі порушення
p. заборона катування
Reading tasks _______________________________________________________
Scan the text and note all the works and phrases that you think are terms closely connected with the European Convention on Human Rights. Compare them with the words which you have predicted.
THE EUROPEAN CONVENTION ON HUMAN RIGHTS.
HUMAN RIGHTS AND EU LAW
For people living in Europe today, one international human rights treaty has special importance – the European Convention on Human Rights and Fundamental Freedoms (ECHR). This treaty was created under the auspices of the Council of Europe, a key objective of which was to secure democracy in Europe after the Second World War. A supra-national judicial tribunals exist to adjudicate on alleged violations of the rights set out in the ECHR and enforce them against signatory States.
Among the rights set out in the ECHR are: the right to life (Art 2); prohibition of torture, inhumane and degrading treatment (Art 3); prohibition of slavery and forced labour (Art 4); rights to liberty and security of the person (Art 5); right to a fair trial to determine civil obligations and criminal charges (Art 6); no punishment without law (Art 7); right to respect for a person’s private and family life, his home and his correspondence (Art 8); freedom of thought, conscience and religion (Art 9); freedom of expression (Art 10); freedom of assembly and association, including the right to form and join trade unions (Art 11); and the right to marry (Art 12). There are a number of Protocols to the ECHR, not all of which the parties have yet agreed to be bound by. The First Protocol provides that “every natural and legal person is entitled to the peaceful enjoyment of his possessions” (Art 1), that “no person shall be denied the right to education” (Art 2) and that the parties to the Protocol “undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature” (Art 3).
Some rights, such as the protection against slavery (Art 4), the prohibition on torture and inhuman treatment (Art 3) and the prohibition on retrospective criminal legislation (Art 7) are unqualified; there are no permissible limitations. Many of the other rights are, however, qualified. Article 5 (right to liberty and security), for example, sets out specific situations where limitations by the State may be permissible. In others, Arts 8, 9, 10 and 11, competing interests, which may countervail over the right in question, are set out. These include:
(a) the interests of national security or public safety;
(b) the prevention of disorder or crime;
(c) the protection of health or morals; and
(d) the protection of the rights of others.
Articles 8(2) and 11(2) also include the protection of the freedoms of others, and Art 8(2) allows invasions of privacy, which are in the interests of “the economic well-being of the country”. These qualifications must be “prescribed by law”, in pursuit of a “legitimate aim” and “necessary in a democratic society”. The ECHR is, therefore, not a charter of libertarian values, which upholds individual liberty against the State in all situations.
The European Union and European Community law is a legal system quite distinct from that of the Council of Europe and the ECHR. There are, however, important interconnections between them. First, all Member States of the European Union are parties to the ECHR.
Secondly, the European Court of Justice in Luxembourg (ECJ) regards the rights protected by the ECHR as forming part of the “general principles” of Community case law.
The European Union itself is not a party to the ECHR. (To be accurate, it would be the European Community, which would become a party, as it has legal personality, whereas the European Union does not). This means that a person or business claiming that an institution of the European Union (for instance, the Commission) has breached human rights cannot take a case to the Court of Human Rights. There are several reasons why the European Union has not become a party to the ECHR. In 1996 the Court of Justice stressed that the EC Treaty contained no express or implied powers enabling the Community to become a party to the ECHR. In any event, some Member States take the view that, because the European Community is not a “State”, it ought not, itself, to participate in treaty organisations such as that of the ECHR. It is also far from certain that parties to the ECHR, which are not Member States of the European Union, would welcome it joining.
The question therefore arises whether one or more Member States of the European Union, which are parties to the ECHR, maybe liable before the Court of Human Rights for a violation of the ECHR following a decision reached by the European Union’s institutions. The Court of Human Rights has answered this in the affirmative. In Matthews v UK (1999), a resident of Gibraltar complained that people living there had no vote in elections for the European Parliament contrary to Protocol No 1 of the ECHR, Art 3. Gibraltar is not part of the UK, but people living there are British nationals. The provisions of the EC Treaty apply there, though Gibraltar is excluded from the operation of some of its provisions, notably on free movement of goods. In 1976, the Member States of the European Community concluded a treaty agreement between themselves on direct elections to the European Parliament; the Council subsequently made a Decision under EC Treaty, Art 249 setting out in more detail the voting arrangements; Gibraltar was not included in the franchise. The Court of Human Rights accepted that the European Community as such could not be challenged because it was not a contracting party to the ECHR; but it held that the UK, by its actions in participating in making the Council Decision, was responsible for the violation of the ECHR.
UNDERSTANDING MAIN POINTS___________________________________
10. Check your understanding of the main points, read the whole text carefully and:
A. Complete the tables below:
· Articles in the ECHR
| Articles | Contents |
| Article 1 | |
| Article 2 | |
| Article 3 | |
| Etc. | |
· Over time, new rights have been added to the Convention through
additional Protocols. Those included in the Human Rights Act at
present are:
| Protocols | Contents |
| Protocol 1 | |
| Etc. | |
B. Complete each sentence below:
1. The European Union and European Community law is a legal system
distinct from...
2. The European Union itself is not a party to the ECHR. This means...
3. There are several reasons why The European Union has not become
a party of the ECHR, they are:
4. The Court of Human Rights deals with a range of questions connected with...
UNIT 10___________________________________________________________
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