The European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter referred to as “ECHR”) sets out rights and freedoms for the members of Council of Europe and consists of 59 articles. Article 2 -The Right to Life is considered as a very important right out of all the rights. For example, in the case, Pretty v. the United Kingdom, the court stated that without life, one cannot enjoy any other rights or freedoms set out in the ECHR. The Right invokes both positive and negative obligations on the part of a member state. This essay would discuss such obligations and it’s limitations with reference to case law from the European Court of Human Rights( hereafter referred to as ECtHR).
The member states are under a duty to protect the right of life by enforcement of law but how they full fill and to what extend it is covered, is up to the member state. It is at least required to make killing illegal and abolish death penalty in accordance with protocol no. 13, which abolishes the death penalty in all circumstances. The state have the obligation to take reasonable steps to prevent over exertion of power by police and other security forces, with limits to the state’s duty. The state is required to thoroughly investigate all suspicious deaths and bring to justice any offenders. e.g. Cyprus v. Turkey (2001)  The state is also required to safeguard lives of individuals held in custody, even if they are mentally ill prisoners with suicidal risks, as well as providing protection for witnesses. e.g. In Keenan v United Kingdom,  application for breach of 2 and 3 were brought to court by the father, for the death of his son who committed suicide while service a prison sentence. the court dismissed the claim under Article 2, it stated that the prison authorities had done all that could reasonably be expected for the protection of the prisoner and kept him under close supervision. Though state is not...
We will deal with each of these in turn, with reference to international legal instruments and bodies. We will observe first of all how the rights of individuals, although falling outside the province of international law as it was conceived in the1600s, began to seep into the framework of international legal rules over the centuries, eventually coming to prominence during the 'humanrights era' that followed the end of the Second World War. We will consider secondly the various mechanisms that have been put in place by the international community in order to deal with the enforcement and observance of individual rights enshrined in international legal instruments. Lastly, we will critically assess the claim that questions about individual rights should be the sole concern of domestic legal systems.
The scholars who laid the intellectual foundations of international law in the Western world, like Hugo Grotius (1625) and John Locke (1690), all stressed in their writings that legal systems, be they domestic or international, were founded in natural law and commonly accepted standards of (Christian) morality. It may seem surprising, therefore, that for centuries the rights of individuals played no significant role in the framework of international law. International law, as the name suggests, was the body of legal rules governing the relations...
...Humanrights refer to the natural or basic rights and freedoms to which all people are entitled to. Traditionally, the rights and freedoms of citizens were protected by an Act of Parliament or by the judges in developing the common law. Prior to World War II, the convention for the protection of humanright and freedom was drafted in 1950s by the Council of Europe. It was drafted because of disgust with fascism and an anxiety to protect basic freedom. On 1953, it has developed to become an international treaty, which all 47 countries of the continent of Europe are bound by the European Convention of HumanRights and Fundamental Freedoms 1950, also known as ECHR. United Kingdom (UK) was one of the first countries to sign the Convention in November 1950. Although it entered into force in the UK on 3rd Sept 1953, UK chose not to incorporate its terms into domestic law. Therefore UK was only bound to ECHR on the matter of international law and not within the domestic legal system. During 1960s, there are few parties concerned had campaigned for the enactment for HumanRights Act in UK. These parties are the commentators and public interest groups. However, due to several criticisms and the reluctant of UK government to pass such legislation, the HRA did not enact until 1998. Though the convention did not incorporate into domestic law, UK...
...Article 6 of the European Courts of HumanRights
“The common law always contained due process principles. Article 6 of ECHR merely provides a new way of thinking about them as humanrights.” Discuss..
Article 6 of the ECHR builds up a body of principles that relate to fair trial rights in regular courts. Nevertheless, an essential question which applies to both special tribunals and courts still remains whether they operate with sufficient fair trial guarantees. The term ‘due process’ refers to the legal obligation that a state must respect and provide all of the legal rights that are owed to a person. Due process balances the power of law of the land and protects the individuals from it. For example, when a government harms a person without following the exact course of the law, this constitutes a due process violation. The common law is a law developed by judges through decisions of courts and similar tribunals as opposed to statutes adopted through the legislative process issued by the executive bench. It does contain due process principles as well as other basic humanrights but it is to a certain degree.
The European Court of HumanRight which is located in Strasburg was established by the European Conventions on Humanrights. It hears complaints that one...
...Are humanrights innate and universal?
Post WWII on the 10 December 1948, the Universal Declaration of HumanRights (UDHR) was espoused by the General Assembly of the United Nations in order to agree on the notion that such atrocities that occurred throughout the Great War and the Second World War would not ever be reciprocated. The document that was drawn up in less than two years by the UN and Western states, and although ambitious it would guarantee a premise for life and living for every individual all over the world. The UDHR are founded on nobility, equality and reverence, and are said to be aimed at all cultures and religions within the West and East of the globe. However there is great discrepancy regarding the justification and practicality of humanrights all over the world due to political, economic and cultural differences and limitations. Universal means that ‘something’ affects, applies or is completed by everyone all over the world – there is no distinctive bias shown and equal policies are applied. Innate, in relation to humanrights, means that people are given natural rights purely based on the fact that he/she is human and alive. Therefore, are humanrights universal and innate or is the Universal Declaration of Human...
...In measuring the extent to which the European regional approach to humanrights protection offers advantages over the United Nations international approach, the various mechanisms contained within both systems must be compared and analysed. An explanation of the various international treaties and the drafting of the European Convention will require some consideration in order to assess the overall effectiveness of the machinery’s established under both systems for the protection of humanrights. Particular reference will be made to the right not to be subjected to ‘torture or to inhuman or degrading treatment or punishment’ who’s universal condemnation stems back to the impunity for horrific crimes against humanity committed during the First and Second World War thus prompting in 1945, the first formal recognition of the importance of protecting humanrights in the international order through the United Nations Charter and the Nuremberg Charter.
The United Nations Charter sets out its purposes as “promoting and encouraging respect for all humanrights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”’ and although the declarations are no more than aspirational, they support principles of liberty and individual freedoms that have subsequently formed the content of specific rights treaties....
...The incorporation of The European Convention of HumanRights (ECHR) into the domestic law under The HumanRights Act 1998 (HRA) as a first step towards a better protection of rights, Finally, the ultimate question, whether to incorporate or not? The judiciary was ill equipped to assume the mantle of guardian of individual rights in the face of executive power and the concept of parliamentary sovereignty. It concerns over the matter in which ‘incorporation’ will affect the conventional balance power between the judges and the Parliament.
Professor Dicey stated that the Rule of Law(1) required judicial protection of Humanrights and he placed a responsibility on the administration of the country to ensure arbitrariness and inequality was not procured during the governing process. Whether or not UK could submit to this Rule of Law depends on whether judges have been able to protect rights when they faced government’s arbitrariness.
In the absence of a written constitution, the protection of HumanRights had been given little emphasis. The doctrine of Parliamentary Supremacy compels judges to construe and comply with Acts of Parliament when interpreting statutes and there is no rule of construction that requires judges to imply the sanctity of HumanRights into the ambiguously worded...
...torture is an unacceptable practice.
The aim of this essay is to critically analyse how the Committee against Torture and the HumanRight Committee have both generated a rich jurisprudence on the extent of state obligations related to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment beyond the traditional view of or preventing the use of torture in interrogations.
Torture has received so many international recognition due to its wide use in the Second World War. Torture is clarly defined in section 1 (1) of the Convention against Torture as ‘…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession’. Other explanation of torture is that it ‘…is intended to humiliate, offend and degrade a human being and turn him or her into a thing’.1
There is a wide record of the use of torture since the history of mankind. For example, in the Roman law, it was customary to apply torture as a way of uncovering the commission of a crime.2 Also, there were reports of torture being permitted in situations where a confession was needed for a punishment in Japanese and Chinese criminal code.3. Also, the United Nations in its Special Rapporteur on torture in 1987 to the United Nations HumanRights Commission, indicated that...
...that support the fulfilment of rights and choices of individuals with dementia while minimising risk of harm
RIGHTSHumanrights; independence; respect; freedom to do what I want; to protect myself and my property; to be heard; to vote; to express my sexuality; right to an education/work.
RISK Danger; part of life; unacceptable or acceptable; who’s risk? risky activities; risk of harm; injury; protection.
CHOICE Independence; ‘my life’; variety of; priorities; making the right choice; making the wrong choice; what to eat; what to wear; relationships; place to live.
HARM Danger; pain; intentional or unintentional; long lasting or short lasting; reputation; sense of identity/safety.
ABUSE Physical; emotional; ﬁnancial; sexual; neglect; law; vulnerable; prison; shocking.
TRUST Friendship; feeling – safe, secure, positive; enabling; back up; care; love. Money in Trust
DIGNITY Free from embarrassment; acknowledged as a human being; a way of being/carrying oneself; sense of self; lack of dignity – abuse, damage, pain, fear
1.1 Explain the impact of key legislation that relates to fulfilment of rights and choices and the minimising of risk of harm for an individual with dementia
HumanRights Act of 1998 - This Act became law on the 9th November 1998 and mostly came into force on 2 October 2000....