Human rights in Europe: A study of the European Convention on Human Rights

1

The origins and history of the Convention

Human rights and democratic values

On 4 November 1950 the Foreign Ministers of the Member States of the Council of Europe met to sign the European Convention on Human Rights. Their aim was ‘to lay the foundations for the new Europe which they hoped to build on the ruins of a continent ravaged by a fratricidal war of unparalleled atrocity’.¹ Today, half a century later, the success of their efforts is apparent. The Convention, although now just one among many human rights treaties, is certainly the most fully developed and the best observed. By the same token, the institutions created to supervise the Convention, originally the European Commission and Court of Human Rights, and now the new Court of Human Rights at Strasbourg, have through their work provided an inspiring model for other human rights systems. How the Convention originated and has been augmented, what its provisions mean in practice and when they can be used, and the contribution of the Strasbourg system to the ideal of a democratic Europe are what this book is about.

The preambles to treaties often make interesting reading. There is sometimes a tendency to ignore them on the ground that they have no legal effect and are little more than ‘window dressing’ for the operative clauses. However this is a mistake because they often reveal the political objectives of the Contracting Parties and are therefore useful for locating the obligations that follow in a historical context. The Covenant of the League of Nations, for example, was drafted after the First World War, and the main object of its authors was to prevent the repetition of such a catastrophe. Consequently, they were pre-eminently concerned with the maintenance of international relations on a peaceful basis and this is reflected in the intention expressed in the Preamble: ‘to promote international co-operation and to achieve international peace and security’.

In 1945 the situation was broadly similar and the Preamble to the Charter of the United Nations is thus largely concerned with furthering peaceful relations: ‘to save succeeding generations from the scourge of war . . . to establish conditions under which justice and the respect for the obligations arising from treaties and other sources of international law can be maintained . . . to unite our strength to maintain international peace and security’ – and so on. But something new is introduced in the second paragraph of the Preamble, which expresses the determination of the peoples of the United Nations ‘to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small’.

This is almost the first reference to human rights in an international treaty² and its presence is not hard to explain. The drafters of the Charter were not only repudiating the ghastly dogmas of totalitarianism, but were also looking behind the facts of war to its causes, one of which had been shown by recent experience to be aggressive despotism. An international order which can effectively secure human rights is thereby taking a major step towards the prevention of war. Accordingly, the Charter includes among the purposes of the United Nations set out in Article 1: ‘to achieve international co-operation . . . in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction’. Later Articles contain undertakings to ‘promote’ or ‘encourage’ respect for human rights and fundamental freedoms for all without distinction, and to take joint and separate action in co-operation with the Organisation for the achievement of these objectives.

The undertakings in the Charter all related to action to be taken in the future³ and it was left to regional organisations, particularly those in Europe, to carry the matter further by providing for obligations of immediate application. In the Brussels Treaty of 1948 Belgium, France, Luxembourg, the Netherlands and the United Kingdom reaffirmed their faith in the ideals proclaimed in the Charter of the United Nations and stated that they were resolved ‘To fortify and preserve the principles of democracy, personal freedom and political liberty, the constitutional traditions and the rule of law, which are their common heritage.’

The same ideas were incorporated, with a slight rearrangement, in the North Atlantic Treaty of April 1949, in which the Parties declare that they are ‘determined to safeguard their freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law’.

A further variant was set out in the Statute of the Council of Europe, which was signed at St James’s Palace in May 1949. In the Preamble the Contracting Parties declare that they are ‘Reaffirming their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy;’

This is followed by two provisions of fundamental importance The first Article of the Statute sets out the aim of the organisation which is ‘to achieve a greater unity between its Members’. It then specifies as one of the means by which this aim shall be pursued ‘the maintenance and further realisation of human rights and fundamental freedoms’. This, of course, is broadly similar to the corresponding provision in Article 1 of the Charter. However, Article 3 of the Statute goes on to provide: ‘Every Member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter 1.’

The maintenance of human rights and respect for the rule of law are therefore not just objectives of the Council of Europe; they are actually made a condition of membership. Here the Statute went much further than any earlier treaty. Moreover the violation of this condition can lead to the suspension or expulsion of a member, in accordance with Article 8 of the Statute, and so it is clear that the obligation is no mere rhetorical flourish, but is meant to be taken seriously.

Why was the cause of human rights taken up so enthusiastically by the Council of Europe? There were two main reasons. The first was the grim experience through which Europe had passed during the years immediately preceding the creation of the Council. 1949 was very close to 1945. Many statesmen of the immediate post-war epoch had been in the resistance or in prison during the Second World War and were acutely conscious of the need to prevent any recrudescence of dictatorship in Western Europe. They knew that as long as human rights are respected, democracy is secure and the danger of dictatorship and war is remote. Moreover, they were aware that the first steps towards dictatorship are the gradual suppression of individual rights – infringement of the freedom of the Press, prohibition of public meetings, and trials behind closed doors, for example – and that once this process has started it becomes increasingly difficult to stop. It is vital, therefore, to lay down in advance the rights and freedoms that must be respected in a democratic society and to create institutions to see that they are observed. If any Member State should then start on the path which leads to dictatorship, the alarm can be sounded and international machinery put in motion to restore the rule of law.

The point was well put by M. Pierre-Henri Teitgen in a speech to the Consultative Assembly in August 1949:

Many of our colleagues have pointed out that our countries are democratic and are deeply impregnated with a sense of freedom; they believe in morality and in natural law . . . Why is it necessary to build such a system?

Democracies do not become Nazi countries in one day. Evil progresses cunningly, with a minority operating, as it were, to remove the levers of control. One by one, freedoms are suppressed, in one sphere after another. Public opinion and the entire national conscience are asphyxiated. And then, when everything is in order, the ‘Führer’ is installed and the evolution continues even to the oven of the crematorium.

It is necessary to intervene before it is too late. A conscience must exist somewhere which will sound the alarm to the minds of a nation menaced by this progressive corruption, to warn them of the peril and to show them that they are progressing down a long road which leads far, sometimes even to Buchenwald or to Dachau.

An international Court, within the Council of Europe, and a system of supervision and guarantees could be the conscience of which we all have need, and of which other countries have perhaps a special need.⁴

The second reason for the Council’s concern with human rights was the ideological conflict between East and West which surrounded its creation. The post-war movement for European unity was not only the result of a conviction that this was a desirable goal in the abstract; it was also a reaction to the threat posed by the Soviet Union, which was very real at that time. The year which elapsed between the Hague Congress in May 1948, where the Council of Europe was first mooted,⁵ and the signature of the Statute in the following spring witnessed the seizure of power by the Communists in Czechoslovakia, the civil war in Greece and the Berlin blockade. This led M. Paul-Henri Spaak to remark that the man who did most for the union of Western Europe was Josef Stalin, for it was when the European countries were acutely aware of the challenge of Communism that they felt the need to reaffirm the principles of their own political faith. It was thus the danger of dictatorship that made them conscious of the value of democracy.

The Council of Europe was therefore set up as a peaceful association of democratic States which proclaimed their faith in the rule of law and ‘their devotion to the spiritual and moral values which are the common heritage of their peoples’. These points were highlighted when the Convention on Human Rights was signed at the sixth session of the Committee of Ministers in Rome in November 1950. Mr Sean MacBride, the Irish Minister for External Affairs, said on that occasion: ‘The present struggle is one which is largely being fought in the minds and consciences of mankind. In this struggle, I have always felt that we lacked a clearly defined charter which set out unambiguously the rights which we democrats guarantee to our people. This Convention is a step in that direction.’ And M. Robert Schuman added: ‘This Convention which we are signing is not as full or as precise as many of us would have wished. However, we have thought it our duty to subscribe to it as it stands. It provides foundations on which to base the defence of human personality against all tyrannies and against all forms of totalitarianism.’

The human rights provisions in the Statute of the Council of Europe, the obligations undertaken in the European Convention and the arrangements for institutional supervision are thus designed primarily to affirm and preserve the rule of law and the principles of democracy in the Member States and, should the danger arise, forestall any moves in the direction of dictatorship.

The Convention and the First Protocol

The origins of the Convention go back to a time before the Council of Europe. The ‘Congress of Europe’, convened by the International Committee of Movements for European Unity, was held at The Hague in May 1948. It included 663 delegates from sixteen countries⁶ and observers, many of whom were refugees, from ten others.⁷ The aims of the Congress were to demonstrate the wide support for the cause of European unity, to provide fresh impetus to this movement and to make practical recommendations for the accomplishment of its objectives. The participants included a number of former Prime Ministers and Foreign Ministers, many members of parliament and individuals from various sections of the community. A good many of those present were later to become prominent members of the Consultative Assembly. The President of Honour was Sir Winston Churchill. In the Message to Europeans adopted at the final plenary session the delegates proclaimed:

We desire a United Europe, throughout whose area the free movement of persons, ideas and goods is restored;

We desire a Charter of Human Rights guaranteeing liberty of thought, assembly and expression as well as the right to form a political opposition;

We desire a Court of Justice with adequate sanctions for the implementation of this Charter;

We desire a European Assembly where the live forces of all our nations shall be represented;

And pledge ourselves in our homes and in public, in our political and religious life, in our professional and trade union circles, to give our fullest support to all persons and governments working for this lofty cause, which offers the last chance of peace and the one promise of a great future for this generation and those that will succeed it.

The idea of a Charter of Human Rights and a Court of Justice to supervise its implementation was soon given more attention. Early in 1949 the International Juridical Section of the European Movement was formed under the chairmanship of M. Pierre-Henri Teitgen, a former French Minister of Justice, with Sir David Maxwell Fyfe and Professor Fernand Dehousse of Belgium as joint rapporteurs. This group began work on a draft Convention in which the Contracting Parties would undertake to uphold the fundamental liberties of their citizens and establish a European Court to adjudicate in cases of alleged violation. When the draft was finished it was submitted in July 1949 to the Committee of Ministers of the Council of Europe, with a recommendation that it be considered at the first session of the Consultative Assembly, which was about to take place.⁸

Another source for the European Convention was the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations in December 1948. The Declaration does not contain legally binding obligations, but its authors intended it to have a ‘moral value and authority which is without precedent in the history of the world’.⁹ Once the Declaration had been passed, the General Assembly lost no time in instructing the Commission on Human Rights to give priority to the drafting of the two other parts of the proposed Bill of Rights: a Covenant containing legal obligations to be assumed by States, and appropriate measures for its implementation. In 1952 the General Assembly decided that there should be two separate Covenants, to be concluded simultaneously, relating to economic, social and cultural rights, on the one hand, and to civil and political rights, on the other. The Commission on Human Rights submitted its draft texts to the Economic and Social Council (ECOSOC) and the General Assembly in 1954. In December 1966 the two Covenants and the Optional Protocol to the Covenant on Civil and Political Rights were approved by the General Assembly and ten years later came into force.¹⁰ As a result of this early interest at the United Nations in the subject of human rights, when the Council of Europe took up the subject in 1949 it was able to refer to the statement of rights contained in the Universal Declaration, together with the first draft of the projected UN Covenant.

In spite of the recommendation of the European Movement, the Committee of Ministers of the Council of Europe did not include the question of human rights on the draft agenda which it drew up for the first session of the Assembly in 1949.¹¹ Consequently three separate proposals relating to human rights were tabled by different groups of representatives. The Assembly itself then proposed to include on its agenda the study of ‘measures for the fulfilment of the declared aim of the Council of Europe in accordance with Article 1 of the Statute in regard to the maintenance and further realisation of human rights and fundamental freedoms’.¹² However, the consent of the Committee of Ministers was at that time required for the inclusion of an item on the Assembly’s agenda. At first the Ministers would not agree, arguing that there was a danger of duplicating the work of the United Nations, and that confusion might result if the two organisations set about drafting two separate treaties relating to the same matter at the same time. This led Sir Winston Churchill to remark that ‘a European Assembly forbidden to discuss human rights would indeed have been a ludicrous proposition to put to the world’.¹³ Finally, when the Assembly insisted, the Ministers gave way, but asked the Assembly to devote particular attention to the problem of definition.

The Assembly held a general debate on the subject in August 1949, and a formal proposal was made for the creation of ‘an organisation within the Council of Europe to ensure the collective guarantee of human rights’.¹⁴ This issue was referred to the Committee on Legal and Administrative Questions, presided over by Sir David Maxwell Fyfe, with M. Antonio Azara (ltaly) as vice-chairman and M. Teitgen (France) as rapporteur. The committee’s discussions resulted in the famous Teitgen Report of September 1949,¹⁵ which was considered in depth by the Assembly in the same month, and was adopted by the Assembly as Recommendation 38 on 8 September.¹⁶

The first question considered by the committee was the scope of the rights to be protected. Should they be limited to the civil and political rights and freedoms set out in historic texts such as the English and American Bills of Rights and the French Declaration of 1789? Or should they extend to cover rights of an economic and social character which had been incorporated into several of the new constitutions drawn up after the Second World War, including the French constitution of 1946, the Italian constitution of 1947 and the Basic Law of the Federal Republic of Germany of May 1949? M. Teitgen answered this question as follows:

The Committee on Legal and Administrative Questions had first to draw up a list of freedoms which are to be guaranteed. It considered that, for the moment, it is preferable to limit the collective guarantee to those rights and essential freedoms which are practised after long usage and experience in all the democratic countries. While they are the first triumph of democratic regimes, they are also the necessary condition under which they operate.

Certainly, professional freedoms and social rights, which have themselves an intrinsic value, must also, in the future, be defined and protected. Everyone will, however, understand that it is necessary to begin at the beginning and to guarantee political democracy in the European Union and then to co-ordinate our economies, before undertaking the generalisation of social democracy.¹⁷

The committee therefore ‘began at the beginning’ and listed twelve basic civil and political rights which it proposed should be the subject of a collective guarantee. Notwithstanding the Ministers’ recommendation, the committee did not attempt to define the rights in great detail. The rights which it proposed were the following, with the corresponding Articles of the Universal Declaration indicated in brackets:

1Security of person (Arts 3, 5 and 8).

2Freedom from slavery and servitude (Art. 4).

3Freedom from arbitrary arrest, detention or exile (Arts 9, 10 and 11).

4Freedom from arbitrary interference in private and family life, home and correspondence (Art. 12).

5Freedom of thought, conscience and religion (Art. 18).

6Freedom of opinion and expression (Art. 19).

7Freedom of assembly (Art. 20).

8Freedom of association (Art. 20).

9Freedom to unite in trade unions (Art. 23, para. 4).

10 The right to marry and found a family (Art. 16).

11 The right of parents to choose the kind of education to be given to their children (Art. 26, para. 3).

12 The right to own property (Art. 17).

When this list of rights was considered by the Assembly, an amendment was tabled to delete the last three on the list on the ground that there would be difficulties of drafting and interpretation and because it was suggested that these rights were not fundamental requirements of a democratic society. After a lively debate in which twenty-six speakers participated, the Assembly decided to retain the right to marry and to found a family but chose to refer for further consideration the right to education and the right to own property.

The Assembly then considered how the collective guarantee should be provided. It proposed first that all Member States should bind themselves to respect the fundamental principles of democracy and to hold free elections at reasonable intervals with universal suffrage and by secret ballot. It was then to be left to each signatory State, subject to certain safeguards, to determine the rules by which the guaranteed rights and freedoms should be established and protected within its territory. The object of the collective guarantee was ‘to ensure that the laws of each State in which are embodied the guaranteed rights and freedoms, as well as the application of these laws, are in accordance with the general principles of law as recognised by civilised nations referred to in Article 38(1)(c) of the Statute of the International Court of Justice’. Secondly, in order to implement the collective guarantee of human rights, the establishment of a European Commission for Human Rights and a European Court of Justice was suggested.

The committee proposed – and the proposal was accepted by the Assembly – that Member States might bring any alleged breach of the Convention before the Commission, which would endeavour to settle the matter by conciliation. A similar right was to be granted to private individuals or associations after the exhaustion of domestic remedies. If conciliation failed, the Commission itself, or a Member State, might refer the matter to the Court of Justice, although this right was not to be granted to private parties. The Court would decide whether a violation had occurred. These decisions would then be transmitted to the Committee of Ministers of the Council of Europe, which would be responsible for any further action. This was the first proposal to provide an international remedy for an individual whose rights had been infringed by a sovereign State. A person would, in his or her individual capacity, have direct recourse to an international organ (the Commission) and, although an individual could not personally appeal to the European Court, a State could be brought before the Court if a case was taken up by the Commission or by another signatory State. As an alternative, a Member State might, if it preferred, submit the case to the International Court of Justice.

Under the Statute of the Council of Europe the Consultative (now Parliamentary) Assembly is a deliberative organ which has no powers of decision but makes recommendations to the Committee of Ministers. The latter, as the executive organ of the Council, then acts on the recommendations as it thinks fit.¹⁸ Accordingly, the Assembly’s Recommendation 38 was submitted to the Committee of Ministers¹⁹ and at their meeting in November 1949 the Ministers decided to appoint a committee of governmental experts to prepare a draft Convention, ‘due attention being paid to the progress achieved in this matter by the competent organs of the United Nations’. The new committee met in Strasbourg in February and March 1950 and prepared a draft Convention, taking as the basis of its work the proposals made by the Assembly. It made considerable progress and had no difficulty in accepting the list of rights proposed by the Assembly, with some rearrangement. However, it was unable to agree on certain questions, such as whether the rights to be protected should merely be enumerated or defined in detail. Moreover, it did not attempt to reach agreement on certain other questions, including the right of individual petition and the creation of a European Court, which it considered to be political rather than legal matters. It therefore submitted a report to the Committee of Ministers which set out a number of alternative texts.

The Ministers considered this report in April 1950 and decided to convene a meeting of senior officials to take the political decisions called for by the report of the Committee of Experts. The Conference of Senior Officials met in June 1950, under the chairmanship of Mr Sture Petrén, Legal Adviser in the Swedish Foreign Office.²⁰ That conference prepared a draft Convention incorporating the greater part of the texts submitted by the Experts. It accepted the view that the rights to be protected should be defined in detail and not merely enumerated in the Convention. As might have been expected, in the majority of cases the definitions closely followed those already worked out by the United Nations Commission when preparing the early drafts of the Covenants.

The decision to supply detailed definitions of the rights to be protected was a wise one, because otherwise it would have been difficult for governments to know whether their internal law was in conformity with the Convention and impossible for the Commission and the Court to answer the same question. As regards the creation of a European Court, the Senior Officials took a positive view, subject to the qualification that the Court should have jurisdiction only in relation to States which had expressly accepted this in a separate declaration. As a corollary, the Court would only be set up when nine States had made such declarations. When it came to the Assembly’s proposal for a right of individual petition to the Commission, opinions were sharply divided. Some delegations considered that this procedure was essential if the guarantees offered by the Convention were to be effective, while others took the view that this would be a revolutionary legal development which could be dangerous for States and was open to abuse. This matter was therefore referred to the Ministers.

At the request of the Assembly the report of the Conference of Senior Officials was communicated to the Assembly’s Committee on Legal and Administrative Questions. The comments of this committee were then submitted to the Committee of Ministers at the same time as the report itself. On behalf of his committee Sir David Maxwell Fyfe urgently requested that the right to free elections, which the draft omitted, should be put back into the Convention. He reminded the Ministers that his committee was continuing to study the right to own property and the right of parents to choose the kind of education to be given to their children. Finally, he emphasised the importance that the committee attached to the right of individual petition, which he preferred to describe as ‘the right of individuals to seek a remedy directly’.²¹

At its fifth session, in August 1950, the Committee of Ministers considered the report of the Senior Officials, together with the comments of the Assembly’s Legal Committee. On 7 August it adopted a revised text of the draft Convention which accepted the definition of the rights proposed by the Senior Officials and the proposal to create a Court with optional jurisdiction. Confronted with the Assembly’s insistence on the importance of the right of individual petition, it resorted to a compromise similar to that already adopted for the Court. It was thus agreed that the competence of the Commission to examine individual petitions should have a place in the Convention, but that it should apply only in relation to States which expressly accepted it in a separate declaration.

The new draft was submitted to the Assembly at its second session, also held in August, and again considered by the Committee on Legal and Administrative Questions, whose report was approved by the Assembly on 25 August.²² On this occasion the Assembly accepted the Ministers’ draft Convention in substance, but made several suggestions to improve it. The first was for the insertion of a Preamble, a draft for which was prepared. The second was that the Court should be set up when eight Contracting Parties had accepted its jurisdiction as compulsory, rather than the nine originally suggested. Thirdly, the Assembly proposed an amendment of the ‘colonial clause’ (Art. 63), which permitted a metropolitan country to extend the application of the Convention to its overseas territories.²³ Lastly, the Assembly called for the addition of three further Articles to protect the three rights which it had discussed the year before but which had not been included. These, it will be recalled, were the right of property, the right of parents to choose the kind of education to be given to their children, and the right to free elections.

These proposals were considered by the Committee of Ministers at its sixth session in Rome in November of the same year. Once more a number of the Ministers brought with them their legal advisers, who reviewed the amendments proposed by the Assembly and undertook a final revision of the text.²⁴ They added a Preamble to the Convention based on the Assembly’s draft and agreed with the suggestion to reduce the required number of acceptances of the Court’s jurisdiction. However, they were unable to reach agreement on the majority of the amendments proposed, with the result that the Convention was finally signed on 4 November 1950, essentially in the form which had been approved by the Ministers in August.

Later in November Count Sforza, the chairman of the Committee of Ministers, came to Strasbourg to report on the results achieved by the Committee since the adjournment of the Assembly’s session in August.²⁵ His report was concerned mainly with the signature of the Convention, but the satisfaction of the parliamentarians with that achievement was tempered by disappointment at, and in some quarters strong criticism of, the fact that the Ministers had not accepted the Assembly’s proposal to add the three additional rights. Nonetheless, a leading member of the Assembly probably spoke for many when he said that ‘in spite of its defects . . . I regard the Convention, watered down as it is, as a most important landmark in European history’.²⁶

The criticism of the Committee of Ministers for failing to include the three additional rights was really rather exaggerated. The Ministers had not rejected the proposal; they simply wanted more time to study it. Indeed, it was obvious that any clause designed to guarantee the enjoyment of possessions would not be acceptable to Socialist governments unless it was made quite clear that this would not prevent the State from nationalising private property. The right to education also skirted treacherous ground. The Assembly, as we have seen, wanted the Convention to recognise the right of parents to choose the kind of education to be given to their children. In many European countries, however, this immediately brought to mind the long and bitter dispute between Church and State over education and the support of Church schools. The text on free elections also presented difficulties. Clearly, all members of the Council of Europe are committed to political liberties and democracy. It is, however, another matter entirely to draft a short treaty Article to provide a guarantee of the right to free elections.

In view of these difficulties it is not altogether surprising that when the Committee of Ministers came to consider the proposals of the Assembly on the three rights of property, education and free elections in November 1950, it decided to refer them to its legal experts for further study. It was then faced with the choice of deferring signature of the Convention until these proposals had been examined more carefully or, alternatively, signing the Convention without them. Having regard to the extended negotiations which had already been necessary to produce the text of the Convention as it then was, there was unanimous agreement among the Foreign Ministers that it was better to sign it immediately, without additional Articles, and to conclude a Protocol later, if agreement could be reached.

A series of meetings of the legal experts took place during 1951, and the Assembly’s Legal Committee was consulted in August and November about the drafts which had been prepared.²⁷ Protocol No. 1, covering the three further rights of property, education and free elections, was eventually concluded and was opened for signature on 22 March 1952.

The history of the Convention and Protocol No. 1 has been described at some length because, as we shall see, a knowledge of the origins of these instruments can help in understanding their contents. Moreover, the preparation of the Convention involved a new technique in the drafting of treaties, stemming from the dual nature of the Council of Europe. It was the parliamentary organ of the Council, the Consultative Assembly, which proposed the conclusion of the Convention and it was the governmental organ, the Committee of Ministers, which acted on that proposal. Each organ was assisted by a specialised committee which was responsible for the detailed work and a dialogue took place between them. As we have seen, the aim was to co-ordinate the views of the two sides and produce a final text which would be acceptable both to the governments and to the national parliaments. The Council of Europe’s technique of treaty-making, which the Convention exemplifies, has been one of its great successes and has resulted in the conclusion of many other conventions and agreements.²⁸

The need for the governments to consult, and take account of the views of, the Consultative Assembly and its Committee on Legal and Administrative Questions protracted the negotiations but brought into play a more forward-looking attitude than is generally found among government officials. It is doubtful whether the right of individual petition, which is often described as the cornerstone of the Convention, would ever have been included had it not been for the insistence of the Consultative Assembly. And if the negotiations seemed slow and protracted at the time, continuing as they did from August 1949 to November 1950, in retrospect that period of fifteen months seems astonishingly short by comparison with the eighteen years that was required to prepare the United Nations Covenants.

The first country to ratify the Convention was the United Kingdom which did so in March 1951. Its ratification of Protocol No. 1 followed in November 1952. In other countries, where positive action by the legislature was required for ratification, the procedure was slower. Three further ratifications were received in the course of 1952 (Norway, Sweden and the Federal Republic of Germany) and the Convention entered into force on 3 September 1953, when the necessary ten ratifications had been made. Protocol No. 1 entered into force a little later, in May 1954, when the tenth instrument of ratification was deposited and, like the Convention itself, has now been very widely accepted.

Once the Convention and Protocol No. 1 had entered into force the next task was to secure acceptance of the optional provisions: the right of individual petition to the Commission and the compulsory jurisdiction of the Court.

Sweden was the first country to accept the right of individual petition, in February 1952, followed by Ireland and Denmark a year later. Six acceptances were needed for this procedure to become operative, but there was some delay. In September 1953 the Consultative Assembly adopted a Recommendation urging all Member States to ratify the Convention and Protocol No. 1 and to make the various optional declarations. Iceland accepted the right of individual petition in March 1955, followed by the Federal Republic of Germany and Belgium four months later. The Commission was then competent to receive individual applications against the six States which had accepted this procedure. Gradually other countries followed suit, with the result that, by 1998, when Protocol No. 11 removed the need for separate acceptances, this right was available to more than 800 million people.

Acceptance of the compulsory jurisdiction of the Court took longer. Those acceptances were, of course, vital because the Court could not actually be set up until eight Contracting Parties had accepted its jurisdiction. Ireland led the way in February 1953, followed by Denmark two months later and the Netherlands in August 1954. It took until September 1958 to obtain eight acceptances and so the Court was inaugurated in January 1959. As with the right of individual petition, despite the initial hesitation, the jurisdiction of the Court was extended progressively and when the control machinery was reconstructed in 1998 had been accepted by all the parties to the Convention.

The Second to Fifth Protocols

The next development related to ‘the generalisation of social democracy’, in other words, to what are now known as economic and social rights. In 1954 the Committee of Ministers informed the Assembly that it would ‘endeavour to elaborate a European Social Charter which would define the social objectives aimed at by Members and would guide the policy of the Council in the social field, in which it would be complementary to the European Convention on Human Rights and Fundamental Freedoms’.

Owing to the complexity of the issues and to the different levels of economic and social development in the Member States, the negotiations were more difficult and progress was slower than with the Convention on Human Rights. Eventually, however, on 18 October 1961 the European Social Charter was signed in Turin. The Charter lists nineteen economic and social rights and principles which the Contracting Parties ‘accept as the aim of their policy, to be pursued by all appropriate means, both national and international in character’. Part II of the Charter then follows with more precise commitments which the Parties accept in order to ensure the effective exercise of these rights. The Charter also contains an elaborate system of international control, based on the submission of reports by governments and the examination of these reports by a Committee of Independent Experts, the governmental Social Committee, the Parliamentary Assembly and finally the Committee of Ministers.

While the negotiations for the Social Charter were still in progress the Assembly and its Legal Committee returned to the issue of civil and political rights. This was a predictable development because the Preamble to the Convention had stated that the Contracting Parties were resolved ‘to take the first steps for the collective enforcement of certain of the Rights stated in Universal Declaration’. It was therefore entirely appropriate that further steps should be taken, when circumstances permitted, for the recognition and enforcement of additional rights.

In 1959 the Legal Committee presented a report to the Assembly which proposed the conclusion of a further Protocol to guarantee a number of rights not included in the Convention and Protocol No. 1. As a result of the adoption of Recommendation 234 (1960), the Committee of Ministers appointed a Committee of Experts on Human Rights with a broad remit to study problems relating to the European Convention. This committee, meeting under the chairmanship of M. Ugo Caldarera (Italy), undertook the necessary drafting work, and the result was Protocol No. 4, signed in September 1963. It protects four additional rights and freedoms: freedom from imprisonment for civil debt; freedom of movement and choice of residence; the right to enter one’s own country and freedom from expulsion; and prohibition of the collective expulsion of aliens. Protocol No. 4 entered into force in May 1968, and has now been ratified by the majority of Member States.

When the European Court of Human Rights was set up in 1959, the Legal Committee decided to consider whether further steps could be taken to make use of this new institution and enhance its standing. An obvious way of doing this would be to grant the Court the competence to give advisory opinions. The International Court of Justice already had such power, as did the Court of Justice of the European Communities. However the Court of Human Rights did not. Accordingly, in November 1959 the committee submitted a report on this subject to the Assembly. That led to the adoption of Recommendation 232 (1960) and to the drafting of the instrument which, when it was signed in May 1963, became Protocol No. 2. As we shall see, however, the Protocol was drafted so narrowly that the advisory jurisdiction of the Court has never had much practical significance.²⁹

Protocol No. 3 was also concluded in 1963. Its origin was a proposal of the European Commission of Human Rights, and it related to the procedure of that body. Article 29 of the Convention, as drafted in 1950, provided that the functions of establishing the facts in any particular case and of attempting to reach a friendly settlement should be discharged by a sub-commission of seven members. Subsequently, if no friendly settlement was reached, the Commission as a whole was required to draw up a report setting out the facts and expressing an opinion on the question of violation (Art. 31). The Commission found this two-tier system inconvenient and time-wasting, and so proposed that all these functions should be discharged by the Commission in plenary session. Protocol No. 3 therefore abolished the system of sub-commissions.³⁰

Protocol No. 5 was concluded three years later, in 1966. It concerned the election of members of the Commission and the Court. The original Convention provided for the partial renewal of each body every three years. However, experience showed that the admission of new Member States to the Council of Europe and the deposit of new instruments of ratification required elections to be held outside the triennial system. The problem here had actually been foreseen by the Legal Experts who met in Rome on the eve of signature of the Convention. The purpose of Protocol No. 5 was to bring these ‘occasional’ elections into the triennial pattern laid down by Articles 22 and 40 of the Convention.³¹

The Sixth to Eighth Protocols

After the successful negotiation of the above innovations, attention could return to the extension of the rights protected by means of further Protocols. Here the first issue to be dealt with was capital punishment. This is a highly specific, and in one sense a narrow, topic. On the other hand, its importance, both to those who may be exposed to it and as a matter of general principle, hardly needs emphasis. Since Article 2 of the Convention guarantees the right to life, but at the same time explicitly permits retention of the death penalty, it was to be expected that sooner or later this issue would be reconsidered.

In September 1981 the Committee of Ministers asked the Committee of Experts, now known as the Steering Committee for Human Rights, to prepare a draft Protocol abolishing the death penalty in time of peace. This decision was the culmination of a long campaign to secure the abolition of capital punishment in the Member States of the Council of Europe. In 1957, for example, the European Committee on Crime Problems included ‘the problem of capital punishment’ in its initial programme of work, while in 1980 the Parliamentary Assembly passed two resolutions on the subject. In the first, Resolution 727, it appealed to the parliaments of those Member States which retained the death penalty to abolish it; and in the second, Recommendation 891, it sought the amendment of Article 2 of the Convention in order to bring it into line with Resolution 727.

When the draft Protocol was ready, it was transmitted to the Committee of Ministers which adopted the text in December 1982. Protocol No. 6 is quite short and commits the States which are parties to abolishing the death penalty in time of peace, while permitting its retention in respect of acts committed in time of war or imminent threat of war. The Protocol was opened for signature in April 1983 and came into force in March 1985. It has now been ratified by more than half the Member States.³²

The story behind Protocol No. 7 is rather different. When the International Covenants on Human Rights were adopted by the United Nations in 1966 it was immediately apparent that difficulties might arise for parties to the European Convention which wished to sign the Covenants. This was partly because the Covenants have their own supervisory arrangements which are quite different from those of the European Convention, and partly because the rights guaranteed in the Covenants are not identical in all respects to those contained in the Convention. Harmonising the procedural position was not something which could conveniently be dealt with by means of a new Protocol, and so need not detain us. The substantive question, on the other hand, could be addressed most easily by extending the obligations of the parties to the Convention until they corresponded as nearly as possible to their obligations under the Covenants. Accordingly, with the support and encouragement of the Parliamentary Assembly, the preparation of a Protocol with this objective was put in hand.

The work was again entrusted to the Steering Committee on Human Rights which, when devising the new Protocol, was concerned to include only such rights as could be stated in sufficiently specific terms to be guaranteed within the framework of the system of control set up by the European Convention. This ruled out a provision on the right of self-determination, which is guaranteed in both United Nations Covenants, and several other rights, but left the Committee with five new rights which it considered suitable for inclusion, either because they were already to be found in the Covenants, or because they were regarded as desirable generally. The five new rights are: the right of an alien not to be expelled from a State without due process of law; the right to appeal in criminal cases; the right to compensation for a miscarriage of justice; immunity from being prosecuted twice for the same offence; and equality of rights and responsibilities of spouses as regards matters of a private law character between them and in their relations with their children.

Protocol No. 7 was accepted by the Committee of Ministers and opened for signature in November 1984. It came into force on receiving its seventh ratification in November 1988.³³

Protocol No. 8 was not concerned with extending the rights protected by the Convention, but with organisation and procedure. Like Protocols Nos 2, 3 and 5, its conclusion reflected the need to modify certain of the Convention’s arrangements in the light of experience with their operation. A particular concern was that the supervisory organs should be in a position to cope with an ever-increasing workload. The number of individual applications grew appreciably in the Convention’s third decade as more States made declarations under Article 25 and as knowledge of the Convention became widespread. In addition, the importance, complexity and diversity of the cases brought to Strasbourg all increased. If the Convention institutions were to function effectively in this situation, and in particular if unreasonable delays were to be avoided, modifications in the procedure for handling applications were essential. The new Protocol was intended as a first step in this direction.³⁴

The above considerations led the Steering Committee to examine as a matter of priority ways of accelerating the procedure before the Convention organs. The Committee of Experts for the Improvement of the Procedure under the European Convention on Human Rights, a subordinate body of the Steering Committee, identified a number of possible measures, but decided to concentrate on the procedure of the Commission because it was here that the need for changes was most urgent. At the same time the Convention’s supervisory arrangements were being reviewed by the Parliamentary Assembly and in September 1983, on the basis of a report by its Legal Affairs Committee, the Assembly adopted Resolution 970 on cases brought under the Convention. In its resolution the Assembly recommended various improvements to the Commission’s procedure, which were then taken into account by the Experts in their deliberations.

The Experts’ draft received further consideration from the Steering Committee and was then submitted to the Committee of Ministers, which adopted the text in January 1985. The most important innovation in Protocol No. 8 was that it gave the Commission authority to establish chambers with all the powers of the full Commission. The Commission was also empowered to set up committees with the competence to reject individual petitions which were manifestly inadmissible. Various other matters concerning organisation and procedure were dealt with in the Protocol, which also introduced some relatively minor changes relating to the Court. Details of these matters, and of the arrangements relating to chambers and committees, will be found in Chapter 9.

Protocol No. 8 was opened for signature in March 1985 and came into force on 1 January 1990 when it had been ratified by all the Member States.³⁵

The Ninth Protocol

This Protocol to the Convention, like its immediate predecessor, was concerned with procedure. Unlike Protocol No. 8, however, it was not concerned with matters of internal organisation, but with a procedural issue of fundamental importance, namely the individual’s right to bring a case before the Court. Under the original Convention, while an individual could bring a case to the Commission if the respondent had made a declaration under Article 25, only a State, or the Commission itself, could refer a case from the Commission to the Court. The purpose of Protocol No. 9 was to change this and to allow an individual to bring a case before the Court.

The idea of allowing individuals to refer cases to the Court was not a new one. It was actually included in the draft of the European Convention drawn up by the European Movement in 1949. However the idea was rejected in the course of the negotiations and was revived only in 1974 when the Commission and the Court, having been consulted on the individual’s locus standi, went beyond this question and called for the individual to be granted the right to seise the Court. Their views, which were passed to the Committee of Experts, had no immediate consequences. The Court, however, returned to the point in 1977 and by 1981 the Steering Committee for Human Rights, as successor to the Committee of Experts, had the matter on its annual agenda.

The question was considered further at a Ministerial Conference on Human Rights held at Vienna in 1985 and in the following year the Committee of Ministers listed ‘the right of the individual to seise the Court of admissible cases’ among the reforms which should be studied in the context of improving the Convention’s procedures. In March 1987 the Committee of Experts for the Improvement of Procedures for the Protection of Human Rights submitted alternative texts of a draft Protocol to the Steering Committee on Human Rights. After further consultations, the latter chose one of these and the final text of the Protocol was prepared by the Experts in September 1990, finalised by the Steering Committee and adopted by the Committee of Ministers in October.³⁶

The main effect of the Protocol, which is further considered in Chapter 9, was to amend those Articles of the Convention concerned with the jurisdiction of the Court so as to enable individuals to bring cases before the Court, using a preliminary screening procedure.

Protocol No. 9 was opened for signature in November 1990 and came into force in 1994 when it had received ten ratifications. However, when Protocol No. 11 came into force in November 1998 individuals acquired an automatic right to take cases to the new European Court of Human Rights. Consequently, Protocol No. 9, having been overtaken by developments in the Convention system, is no longer operative.

The Tenth Protocol

The next Protocol concerned the Committee of Ministers, a part of the Strasbourg system which until recently had not received much attention. Under the Convention in its original form the Committee, as the executive organ of the Council of Europe, performed a number of functions in relation to human rights, perhaps the most important of which was to receive the Commission’s report in cases which were not referred to the Court and to decide whether there had been a violation of the Convention. The relevant power was set out in Article 32(1) which provided for the Committee to decide ‘by a majority of two-thirds of the members entitled to sit on the Committee’. As we shall see in Chapter