Updated: Nov 7, 2020
"On its 70th anniversary we call upon the Governments and the people of Europe to celebrate its achievements and preserve its crucial potential, not just for our present fellow citizens but also for future generations. We owe it to them."
4 November 2020 marked the 70th anniversary of the signing of the European Convention on Human Rights (“ECHR”). Signed on 4 November 1950, the ECHR emerged as the answer to the desire to prevent the recurrence of the atrocities of World War II. This was to be achieved through a system that would ensure the protection of the most basic human rights and the respect for the rule of law, as well as through a closer political union between European states. In this context, the signing of the Universal Declaration of Human Rights (“UNDHR”, 1948), fuelled the motivation to achieve a more effective protection at a European level with the signing of the ECHR. The means of being more effective was through making the ECHR the first legal instrument to give human rights and fundamental freedoms legally-binding force.
Inspired by the UNDHR but proving that the ECHR is a “living legal instrument” which evolves together with society, shortly after the signing of the Convention negotiations re-opened to debate the rights which had been omitted from the original text. This was the origin of the so-called Protocols to the ECHR –i.e. additions to the initial text of the ECHR. They supplemented the rights contained in the Convention and provided for additional procedural rules, which the Member States had the choice whether to ratify, or not. Thereafter, further Protocols have been supplemented and elaborated, providing for the guarantee of additional rights.
Initially signed by twelve countries, the ECHR is now enforceable by all 47 European States that form part of the Council of Europe (“CoE”). The reliability of the rights and fundamental freedoms enshrined in this legally-binding treaty is ensured by the oversight of the European Court of Human Rights (“ECtHR”, 1959), an independent and international court which forms an integral part of the Council of Europe. In this sense, the ECtHR has jurisdiction to rule as the ultimate court above any other –national or supra-national. The ECtHR can make a determination on any claim brought by individuals or by the Member States of the CoE themselves, on a potential violation of the ECHR committed by any of those 47 Member States. However, while the Court has the power to issue final judgments on such cases, it does not have the power to enforce them. This is one of the most critizised shortcomings of the Convention system, as it relies heavily on the willingness of the Member States to implement the judgments.