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The paper examines the evolution of the European human rights since 1949 by carefully analyzing the role of the Council of Europe and European Union (EU) in the development and advancement of human rights in the region. Being guided by a research question and hypothesis, the research paper is divided into seven sections. The first section provides the background information of human rights to explicate the emergence of the concept before 1949. After the delimitation of the topic, the paper presents the statement of the problem to show the importance of this research. In light of the theoretical framework as the background for better understanding of human rights, the work considers the origin of the European Convention of Human Rights (EHCR) and discusses the slow progress that it made over time. In this context, the paper outlines the role of the EU in the development of human rights by offering an analysis of the EU human rights case law and their impact on the protection of human rights. The final section provides a concluding statement that supports the hypothesis. The findings suggest that the European focus on human rights grew stronger after the World War II with the help of the Council of Europe that created a Convention for Human Rights and the EU. Finally, the work concludes that the EU itself did not advance human rights because it was initially established for the economic purposes but protects human rights through the Charter of Fundamental Rights. Development of the European Human Rights
The concept of human rights has emerged as a result of the philosophical debate that raged two thousand years ago within the European states. However, the earliest precursor to the development of fundamental human rights is found in the Babylonian laws and the notions of natural rights developed by the classical Greek philosophers. The phenomenon can also be dated back to the Magna Carta at Runnymede that was signed in June 1215 allowing British barons of Medieval England to force a reluctant King John to acknowledge the great charter. Influenced by John Locke, in 1690, the natural laws evolved into the natural rights of individuals based on human nature. For the popularization of the advantages of unwritten constitution of England, a French political philosopher Montesquieu further led to the advancement of human rights in 1748. Moreover, Jean-Jacques Rousseau proclaimed the revolutionary potential of human rights in 1762 by arguing that rights can be both restrictive and liberating (Maringele, 2015). In 1789, Europe recognized and proclaimed the French Declaration of Human Rights. Today, almost all national constitutions protect human rights.
The most radical development in the history of human right law is the Universal Declaration of Human rights (UDHR) (1948) and Nuremberg Judgment since it rapidly established the system of international law for the states and individuals (Singh, 2016). To date, more than three-quarters of all states, including the European Union (EU) countries, have ratified the UDHR treaties. This regulation has guided the development of the European human rights (Varju, 2014). One drawback of the UDHR is the lack of legal machinery to enforce rules against recalcitrant states making the United Nations (UN) slow in developing an effective international human rights legal process on a universal basis (Ritleng, 2012). Due to this limitation, it made sense for Europe to develop a regional international human rights framework to provide a realistic enforcement mechanism. The study traces the origins and history of the European human rights from both political and legal perspectives. The paper examines the contribution of the Council of Europe and EU into the development and advancement of human rights in the European countries.
The coverage of the topic in this study is limited to the development of the European human rights. The discussion highlights the origins of the Council of Europe, negotiation, and signing of the European Convention, as well as the progress of the convention over time. In terms of the EU, the paper focuses on ways in which the EU continues to advance the protection of human rights. The work neither considers the development of the key concept in other countries nor decision-making procedures and the structure of the Council of Europe.
With regard to safeguarding human rights, the Council of Europe and the EU plays a crucial role. Human right is a legal system operated by the European Court, and its study is of critical importance to lawyers, judges and law students due to three reasons. Primarily, Eckes (2013) asserts that the emergence of the European human rights law was a significant event in Europe and no one should claim to have a superficial knowledge of the world legal systems without being acquainted with the European Human rights law. For the most part, this concept provides insight into the nature of the system of law. However, controversy exists over the question whether the Council of Europe has lived up to expectation and whether the EU or the Charter has facilitated the development of human rights. The current study helps in resolving these uncertainties by discussing the role of the Council of Europe in the development of fundamental rights in Europe since 1949 to present in order to show whether it has successfully contributed to the process. The paper also investigates how the EU has facilitated the advancement of human rights through the establishment of the Charter.
The development of human rights has progressed over time, especially in the twenty-first century. Human rights have become a widely accepted global norm encoded in more than 100 national constitutions and regional agreements since the proclamation of the UDHR (Maringele, 2015). They seek to protect human dignity everywhere and at all times. However, the concept of human rights is highly controversial. Liberal and religious philosophers emphasize the need to theoretically ground human rights or achieving either a political or legal consensus.
The notion that idea of human rights is secular has created a huge debate in theological, philosophical and scholarly circles. The UDHR and subsequent human rights laws exclude religious explanations that raise serious concerns on whether it is possible to justify that all human beings have fundamental rights theoretically (Eckes, 2013). Religious and philosophical theories of human rights have failed due to the lack of inclusiveness. Religion-based theories argue that human rights are based on the religious doctrines. Secular human rights theories, such as those of Ronald Dworkin, Michael Perry and John Rawl, failed to support the position that equals inherent human worth by excluding some religions and individuals who are not the same (Little, 2015). To illustrate, Dworkin’s theory of secular sacredness argues that there is a religious interpretation of human rights and human life has intrinsic value. In addition, Perry’s theory provides religious justification of human rights by arguing that the notion of human rights is religious. The scholar agrees that there is no intelligible religious version of human rights. In contrast, Rawls views human rights as conceptually and political non-reliant upon any metaphysical, philosophical or religious doctrines. The model omits political and civil rights, such as political participation and freedom of expression, creating room for human oppression. According to Little (2015), Rawls’ model also neglects the fact that violation of human rights mostly occurs in sovereign states and excludes individuals who live outside the society.
The philosophical doctrines ascertain that the religious theory does not meet the inclusion criteria. They also hold that protection of human rights is inclusive and possible. In particular, the theory of principle of generic consistency emphasizes that all human beings have rights to well-being and freedom. It also claims that human should accept that all other people have the same rights to well-being and freedom (Eckes, 2013). On the other hand, political theories hold that a shift is needed from the foundationalism embedded in religion and philosophical rights to achieve equality on human rights. However, both philosophical and religious doctrines enriched the theoretical dimension of human dignity and universal rights. Through these theories, the natural law that deals with human rights has entered into the positive rights that became effective through legal systems.
In this regard, the origin of the human right discourse took a form of resistance with the aim of liberating people from oppression. Drawing upon Nanopoulos (2015), the American Declaration of Independence in 1776 and French Revolution in 1789 have positively enshrined the human rights. Both revolutions evidenced that human rights should be universal and inalienable, which means that human rights are independent of government. Eckes (2013) asserts that the above two events bound individuals to the government through privatization of rights which reinforced the legitimacy of the state oppression. At the same time, since the establishment of the UDHR, the evolution of human rights has grown rapidly. Numerous international treaties human rights that define the rights that should be protected across categories of civil, political and economic rights succeeded the UDHR. Maringele (2015) claims that the UDHR ushered a new era in the evolution of human rights by being recognized as a legal framework for human rights mechanisms at national, regional and international level. Therefore, this declaration served as a source of the European human rights law.
In what ways has the Council of Europe and the EU contributed to the development and establishment of the European human rights from their founding to present day?
Both the Council of Europe and the EU has played a central role in the series of international treaties through which EU member states have undertaken to promote civil rights and fundamental freedoms within their jurisdiction.
The Council of Europe contributed to the development of the European human rights through the European Convention for the Protection of Human Rights (ECHR), the most successful and advanced international law system worldwide. The Council of Europe was drafted on 5th May 1949 after the World War II, and currently, it unifies 47 member states (Singh, 2016). Following the World War II, many Europeans established pro-movements to push the formation of an organization that would prevent human rights abuses experienced during the two world wars by supporting the fundamental democracy, peace, and freedom.
Human rights became a priority for the Europeans pressing the political union in May 1948 (Varju, 2014). The European government advocated for a treaty that would establish a Council of Europe as a formal institution to achieve the European unity. On May 5, ten nations signed the act creating the Council of Europe. There was an agreement that the role of the agency would be to design and implement a convention for human rights. The delegates suggested that it would be advisable to establish not only the European Court but also the European Commission of Human Rights. Initially, the role of the commission was to protect the judicial function. The commission stood as an intermediary between individuals and court and between individuals and government. On July 12, 1949, Professor Fernand Dehousse, Sir David Maxwell-Fyfe, and Pierre-Henri Teitgen prepared a draft statute for the European Court and the ECHR (Varju, 2014). On August 9, delegates from Sweden, France, and Norway opposed the human rights agenda claiming that the issue was already discussed extensively at the UN in the debate that led to the UDHR. However, the delegates drafted a special human rights convention for Europe.
On August 13, 1949, the Danish representative, Rasmussen, opposed the view that the efforts on human rights in Europe would not duplicate the UN work. On August 19, the Teitgen of France linked the development of a new legal system to the infringement of basis in the Nazi Europe (Eckes, 2013). The commission agreed that only those essential and fundamental freedoms could be guaranteed which are today defined and widely accepted by the democratic regimes (Singh, 2016). It prepared a draft convention that stated the rights which would lead to the formation of the European Court, the Human Rights Commission and provides individuals and European countries with a right to petition the commission. Ungoed-Thomas of the United Kingdom and Rolin of France opposed the proposals for the commission and court, but eventually, all the countries accepted the enumerated human rights while disagreed on the role of the rights of individual petition and court. The council signed the ECHR on November 4, 1950 and enforced it after almost three years on September 3, 1953 (Maringele (2015). Today, the ECHR continues to safeguard human rights.
The UDHR inspired the ECHR that deals largely with political and civil rights. The convention offered little that was exceptional in the international context. However, the Strasbourg’s enforcement machinery was extraordinary due to its efficacy for almost 50 years by two crucial optional clauses that remained relevant until November 1998, namely, old article 25 and article 46, which are now mandatory (Varju, 2014). The most crucial aspect in the early days of the Convention was whether or not a European state would accept judicial jurisdiction and individual petition. Another debate revolved around the willingness of Europeans to empower the court and international commission to safeguard human rights. At first, the governments of the European states were reluctant to accept the optional clauses. Over time, the Council of Europe members consented to the two optional clauses. By 1995, all the 30 European states involved in the Council of Europe had accepted the two clauses (Maringele, 2015).
The system underwent development and challenges from the1960s through the1990s. for instance, Greece quitted the Council of Europe and rejected the ECHR in 1959. However, the number of states approving the individual petition and jurisdiction of the court had increased. In 1974, Greece rejoined the Council of Europe, and by the end of the decade, 17 states consented to the jurisdiction of the court and 14 accepted individual petition. Nanopoulos (2015) asserts that the 1980s experienced an increase in the activities under the Convention. By the end of the decade, 222 states supported the jurisdiction of the court and the right to individual petition. The court received 169 judgments, and the commission deems 455 applications admissible (Eckes, 2013).
In the 1990s, the legal system grew in terms of both caseload and membership. Non-conforming Eastern and Central Europeans states joined the system. From only 22 states in 1989, the participation of the states almost doubled in a duration of ten years. 41 states were convention members in 1999, and the court delivered 809 judgments, nearly four times the number of cases that had handled in the first four decades of the Convection (Ziemele, 2013). The increase in membership and caseload persuaded the Council of Europe to reform the Strasbourg’s legal system that led to the merger of the court and commission in 1999.
The sixth decade of the European Convention, which began in 2000, experienced the challenges in ensuring that the international human rights legal system maintains its responsibilities. By 2007, six more European states ratified the convention making a total of 47 member states. From 2000 to 2005, the Court opened 220,254 provisional files, declared 5,022 applications admissible, and delivered 4,954 judgments (Varju, 2014).
Currently, the Council of Europe offers a strong legal protection for political and civil rights through the ECHR. It regulates the activities of member countries in the areas related to human rights and uses the monitoring bodies to provide the recommendations for improvement. The Convention has either a direct effect through incorporation in a national court or indirect effect through its application on domestic legislation in all the European states. Citizens, whose human rights have been violated, have a right to apply to the European Court in Strasbourg. According to Maringele (2015), the Convention elaborates a sophisticated jurisprudence on different human rights through a large number of the ECHR-based decisions and reports as well as case law encompassing more than 2,000 court judgments. In the international context, the ECHR is used in the development of legal tests, techniques, and criteria.
The margin of appreciation doctrine is the main component of the EHCR that helps to perform its function. The role of the margin of appreciation doctrines includes the expression of judicial restraint, a tool for interpretation of human rights and a means of expressing European Convention subsidiary to the legislation of member states. The international system of human rights protection applies the doctrine as a strategy to balance uniformity and diversity. A margin of appreciation is granted if the court wants to create room for diversity. The court does not mention the margin of appreciation when it wants to impose uniformity (Maringele, 2015). The Strasbourg court refers to the concept extensively, particularly in cases related to limitations of the fundamental rights.
The EU has been active in promoting universal recognition of human rights. The EU has been initiated by the states concerned with coal and steel industries as well as enhancement of trade in Europe. The European Coal and Steel Community (ECSC), created in the wake of the World War II, brought together the German and French coal and steel producers within the cooperation framework that later opened to other European states. The role of the ECSC was to harmonize the activities in these sectors in the Western Europe. The first member states of the ECSC, such as Netherlands, Luxembourg, Italy, Germany, France, and Belgium, signed the Treaty of Paris on July 23, 1953 (Singh, 2016). The ECSC contributed to the rapid economic growth by removing the barriers to trade. Another role of the ECSC was to close the uneconomical and inefficient coal and steel mines and elimination of the excess production. Thus, the ECSC contributed to the economic expansion and improved the living standards.
Therefore, the initial focus of the EU was economic. Gradually, the union implemented the political initiatives by evolving from the ESCS to the European Economic Community (ECC), and then the EU that was established by the Treaty of Rome and Treaty on the European Union. At its inception, the EU did not intent to be involved in the human rights issues. The Union was also not willing to give up the significant power to an international organization due to the disorientation of the founding states after the Word War II (Ritleng, 2012). Nonetheless, human rights became a topical concern after the enactment of the UDHR.
The court ruling in several cases held that the principles of the EU law enshrine the fundamental human rights. To illustrate, in 1963 and 1964, the court established the supremacy of the EU law over the national laws, which made it apparent that the European court must take actions to prevent the human rights abuses. In 1969, the Court acknowledged its responsibility to protect human rights based on the decisions made in Stauder v City of Ulm that made the union formally recognized human rights (Maringele, 2015). The ruling recognized the advanced human rights by acknowledging that human rights were the principles of the EU law.
Furthermore, in 1970, Internationale Handelsgesellschaft case challenged the supremacy of the EU law. The Court ruling forced the EU to develop its doctrine of fundamental rights so that the Union can protect these rights to prevent the conflict with national laws. In 1974, in the case of Nold, the Court made it clear that the international human rights are another source of the EU fundamental rights and the Union measures in conflict with the fundamental rights have to be declared invalid (Ritleng, 2012). Following the ruling of these cases among others, the European Court of Justice formed the Human Rights Doctrine leading to the development of a coherent statement of the human rights protected by the EU.
The EU has contributed to the advancement of human rights through the creation of a Charter of Fundamental Rights in June 1999. The Charter helps the EU to galvanize and extend the human rights. In 2000, the European countries adopted the Charter to make human rights more visible to citizens. The Charter brings citizens closer to the EU and covers almost all the fundamental rights written in the ECHR (Ritleng, 2012). Apart from the political and civil rights protected by the Convention, the Charter includes social and economic rights. This means that compared to the ECHR, the Charter makes cultural, social and economic rights visible for the EU enabling a more systematic interpretation of the fundamental rights. The most important aspect of the Charter is that it takes into account human rights introduced by the technological and scientific development ensuring that the EU protects human rights in the light of the social progress and changes (Nanopoulos, 2015). The introduction and incorporation of the charter into the treaties provide the Court with the guideline in making decisions of what constitute the EU fundamental rights.
Despite the positive aspects of the Charter, there are several limitations. In particular, the document does not provide a clear definition of rights, and its scope of application is not clear. Additionally, the Charter cannot guarantee the consistent use of fundamental rights by human rights and justice courts (Ziemele, 2013). Thus, it may widen the discrepancies between these institutions (Maringele, 2015). The divergences in the case law of these courts can be reduced by providing the court of human rights more power and status than the court of justice.
At the same time, the amendment of the ECHR through the Treaty of Lisbon has ensured that EU adheres to the European human rights law. The Treaty complements the EU policy of human rights. Ritleng (2012) asserts that until the EU becomes a party to the ECHR, it will incur responsibility for violation of the human rights and will not be under ECHR jurisdiction. The elimination of discrepancies in the human rights interpretation by courts and making the rights more visible to people can be achieved through the accession of the EU to the Convention (Eckes, 2013). The approach will ensure that citizens enjoy equal protection of their rights. Furthermore, accession will provide the court of Human rights with more power to ensure compatibility of EU institutions’ acts with the ECHR and enhancement of the EU responsibility in the protection of human rights. The EU should support with the development of human rights and monitor the records related to these issues in the member states to continue advancing the human rights.
The paper has succinctly examined the development of the European Human rights since 1949 to present. It has revealed that the European focus on human rights grew stronger after the World War II through the Council of Europe and the EU. Primarily, the initiators of the European human rights were motivated by the facts of human rights abuses associated with the World War II. In this respect, the hypothesis was supported by proving that both the Council of Europe and the EU have played a central role in the development of human rights. The signing of the EHCR was viewed by many with disappointment and skepticism, which made it take many years to get established. It is also clear that the UDHR shaped the development of the European Human rights. The Charter of Fundamental Rights created by the EU rather than the EU itself continues to reinforce the advancement of human rights. The Charter makes human rights more visible to citizens and connects people with the EU. The accession of the EU to the ECHR has a potential to further enhance human rights by taking into account the historical values, guaranteeing human rights more universally, and eliminating the differences in the interpretation of fundamental rights in courts.
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