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THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Over half a century ago, 12 European states, all members of the European Council, signed an international treaty that would put the spotlight on human rights in Europe. This year the European Convention on Human Rights (ECHR) will have been in force for 60 years which - in spite of recent criticisms - is reason enough to make it our 19th Top European. Happy birthday!

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Illustration: Laura Hempel
The ECHR, 60 years old this year!

A political and social arbiter

When the European Council drafted the ECHR in 1950, the aim of the member states was clear: to establish a set of shared values for all of Europe which would heal the trauma of the Second World War. In Articles 1 through 18 together with the ECHR protocols, the European Council set forth these common values, addressing human rights ranging from the prohibition of torture (article 3) to freedom of expression (article 10) and the right to a fair trial (article 6).

However, for any instrument of international law, the crucial issue is its enforceability. After all, what good is the best intention if it cannot be enforced, and what good is a law if your rights cannot be upheld? The ECHR is an international treaty and is therefore - unlike the Universal Declaration of Human Rights - legally binding for all 47 states who have ratified it. In addition to that, the ECHR is enforced by the European Court of Human Rights in Strasbourg, which allows individual citizens to address human rights violations.

The fact that the ECHR has created its own court makes it unique in its structure and thus the only international human rights agreement providing such high level of individual protection. The achievement of the ECHR thus goes hand in hand with the success of the Court. In the past year alone, the Court, which is now responsible for over 800 million people, has dealt with 64 500 legal actions - just imagine that stack of files!

By deciding on the ECHR, the European Court deals with highly contentious political and social issues.

By deciding on the ECHR, the European Court deals with highly contentious political and social issues in its cases. In Schalk and Kopf v. Austriafor example, the Court acknowledged that same-sex couples enjoy the same rights that are afforded to traditional families under article 8. And only a couple of months ago, the court had to consider whether Koch v. Germany fell under Article 2 (the right to life) to decide on a case concerning euthanasia and assisted suicide. Addressing these current controversies in front of a wide-reaching audience gives the Court and the ECHR a huge responsibility. In this context, the ECHR is especially important for those countries that do not have a human rights catalogue in their domestic law. Turkey for example ratified protocol 13 of the ECHR in 2006, abolishing the death penalty from national law, as part of its harmonisation process to join the European Union. It is here, even more than in Western European countries, that the Convention truly makes a difference.

A Treaty for all countries

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Illustration: Katherine Maire
A Top European we'd like to see less of?

For those states that do have their own national human rights law, such as Germany's "Basic Law" or the English "Bill of Rights", the ECHR does create problems. These countries consider their national system of human rights protection superior to that of the ECHR and find it difficult to reconcile the two systems or even subordinate themselves to a new set of European standards.

As with all areas of European law, the Convention and Court have to strike a fine balance between effective European harmonisation and legal paternalism, trying not to encroach unnecessarily on national sovereignty. But here the Court has succeeded in implementing the so called margin of appreciation for domestic courts. This means that the Court acknowledges that the Convention will be interpreted differently in different member states and that cultural, historical, legal and philosophical specifics should be taken into account.

Where the Convention is the first set of human rights norms that a country adopts, it presents a real opportunity for introducing effective legal protection of human rights. For others, it offers a healthy opportunity to review existing national standards in the light of the Convention and the values of the Court in order to stand on comparable ground with the rest of Europe. Either way, the Convention has the potential to draw Europe closer together by offering a common and comparable legal standard when it comes to fundamental human rights.

Less of this top European

We would usually like to see more Top Europeans, but in this case I'd be quite happy to see less of the ECHR. After all, it would be nice if one day the Convention and the controlling eye of the Court were no longer necessary. The ongoing reforms of the Court aim to decrease its workload (and thus its power!) and allow national courts more freedom, effectively returning certain human rights issues to national discretion. But unless the kind of protection that the Convention grants can be ensured in every European member state on a national level, the ECHR will continue to play an important - if not central - role in European human rights protection in the years to come. And so for now we should be hoping that the ECHR does not grow weaker with age, but stronger. 



Cover illustration: Laura Hempel

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