Nature and Protection of Human Rights
Nature and Protection of Human Rights
Human rights are fundamental rights and freedoms to which every person is entitled. Understanding the nature, sources, and protection of human rights is essential for A-Level Law, forming part of the broader constitutional framework of the United Kingdom.
What Are Human Rights?
Human rights are universal, inalienable, and inherent rights — they belong to every person by virtue of their humanity, regardless of nationality, sex, ethnicity, religion, or any other status.
Categories of Rights
Human rights are often categorised as:
- Civil and political rights ("first generation") — rights to liberty, fair trial, privacy, freedom of expression, and freedom from torture. These require the state to refrain from interference (negative obligations)
- Economic, social, and cultural rights ("second generation") — rights to education, healthcare, housing, and an adequate standard of living. These require the state to take positive action (positive obligations)
- Collective/solidarity rights ("third generation") — rights to development, self-determination, and a healthy environment. These are more aspirational and less well-established in law
Absolute, Limited, and Qualified Rights
| Type | Definition | Examples |
|---|---|---|
| Absolute | Cannot be restricted or interfered with under any circumstances | Right to life (prohibition of death penalty — Protocol 13); prohibition of torture (Art. 3); prohibition of slavery (Art. 4) |
| Limited | Can be restricted in specific, defined circumstances set out in the right itself | Right to liberty (Art. 5) — lawful arrest and detention |
| Qualified | Can be restricted where necessary, proportionate, and in pursuit of a legitimate aim | Right to private life (Art. 8); freedom of expression (Art. 10); freedom of assembly (Art. 11) |
Sources and Protection of Human Rights
The Universal Declaration of Human Rights (UDHR) 1948
The UDHR was adopted by the United Nations General Assembly on 10 December 1948, in the aftermath of World War II and the Holocaust. It was drafted by a committee chaired by Eleanor Roosevelt.
Key features:
- 30 articles covering civil, political, economic, social, and cultural rights
- It is a declaration, not a treaty — it is not legally binding in international law
- However, it has enormous moral and political authority and has influenced virtually every subsequent human rights instrument
- Many of its provisions are now considered customary international law (binding on all states through state practice and opinio juris)
Key articles:
- Article 1 — all human beings are born free and equal in dignity and rights
- Article 3 — right to life, liberty, and security of person
- Article 5 — prohibition of torture and cruel, inhuman, or degrading treatment
- Article 18 — freedom of thought, conscience, and religion
- Article 19 — freedom of opinion and expression
- Article 26 — right to education
Limitations:
- No enforcement mechanism — the UDHR has no court or complaints procedure
- It is aspirational — many states that voted for it routinely violated its provisions
- Cultural relativism — critics argue that the UDHR reflects Western liberal values and may not be universal
The European Convention on Human Rights (ECHR) 1950
The ECHR was drafted by the Council of Europe (not the EU) and opened for signature in Rome on 4 November 1950. The UK was one of the first signatories and ratified the Convention in 1951. It came into force in 1953.
Key features:
- The ECHR is a legally binding international treaty
- It primarily protects civil and political rights
- It is enforced by the European Court of Human Rights (ECtHR) in Strasbourg
- The ECHR has been supplemented by Protocols adding further rights (e.g. Protocol 1 — right to property, right to education, right to free elections; Protocol 6 — abolition of the death penalty in peacetime; Protocol 13 — abolition of the death penalty in all circumstances)
Key ECHR Articles:
| Article | Right |
|---|---|
| Art. 2 | Right to life |
| Art. 3 | Prohibition of torture and inhuman or degrading treatment or punishment |
| Art. 4 | Prohibition of slavery and forced labour |
| Art. 5 | Right to liberty and security |
| Art. 6 | Right to a fair trial |
| Art. 7 | No punishment without law (prohibition of retroactive criminal law) |
| Art. 8 | Right to respect for private and family life |
| Art. 9 | Freedom of thought, conscience, and religion |
| Art. 10 | Freedom of expression |
| Art. 11 | Freedom of assembly and association |
| Art. 12 | Right to marry |
| Art. 14 | Prohibition of discrimination (in enjoyment of Convention rights) |
| Protocol 1, Art. 1 | Protection of property |
| Protocol 1, Art. 2 | Right to education |
| Protocol 1, Art. 3 | Right to free elections |
The European Court of Human Rights (ECtHR)
The ECtHR sits in Strasbourg and hears cases brought by:
- Individuals against states ("individual petition" — Art. 34) — the most common type
- States against other states ("inter-state" applications — Art. 33) — rare
Procedure:
1. The applicant must exhaust domestic remedies before applying to the ECtHR (Art. 35(1))
2. The application must be made within 4 months of the final domestic decision (previously 6 months; reduced by Protocol 15)
3. Cases are initially assessed for admissibility by a single judge or committee
4. If admissible, the case proceeds to a Chamber (7 judges) or, in exceptional cases, a Grand Chamber (17 judges)
5. The court issues a judgment — if a violation is found, the court may award just satisfaction (compensation) under Art. 41
Enforcement:
- Judgments are supervised by the Committee of Ministers of the Council of Europe
- States are expected to comply, but the ECtHR cannot directly enforce its judgments within national legal systems
- Non-compliance may result in political pressure or, ultimately, suspension from the Council of Europe (as occurred with Russia in 2022)
Key ECtHR cases involving the UK:
- Golder v UK [1975] — prisoners' right of access to a lawyer (Art. 6)
- Malone v UK [1984] — telephone tapping violated Art. 8; led to the Interception of Communications Act 1985
- Smith and Grady v UK [1999] — the ban on homosexuals in the armed forces violated Art. 8
- Hirst v UK (No. 2) [2005] — the blanket ban on prisoners voting violated Protocol 1, Art. 3 — the UK was slow to comply, causing significant political controversy
- Al-Skeini v UK [2011] — the ECHR applied extraterritorially to UK forces in Iraq
Other International Instruments
- International Covenant on Civil and Political Rights (ICCPR) 1966 — legally binding UN treaty; monitored by the Human Rights Committee
- International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 — legally binding UN treaty
- Convention on the Rights of the Child (CRC) 1989 — ratified by the UK; protects children's rights
- Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979
- European Social Charter — protects economic and social rights at the Council of Europe level
Domestic Protection Before the HRA 1998
Before the Human Rights Act 1998, the ECHR was not directly enforceable in UK courts. The UK relied on:
- Common law rights — developed by the courts over centuries (e.g. Entick v Carrington [1765] — "no general warrants"; freedom from arbitrary search and seizure)
- Statute — individual Acts of Parliament protected specific rights (e.g. the Habeas Corpus Act 1679, the Bill of Rights 1689, the Representation of the People Acts)
- Constitutional conventions — unwritten rules of political practice (e.g. the convention that the government should not interfere with judicial independence)
Limitations of the pre-HRA position:
- Rights could be overridden by ordinary legislation (no entrenchment — parliamentary sovereignty)
- Individuals had to go to Strasbourg to enforce Convention rights — slow (average 5 years) and expensive
- Judges had limited tools to protect rights — they could interpret statutes in light of international obligations but could not strike down incompatible legislation
This "rights gap" was the primary motivation for the Human Rights Act 1998, which "brought rights home" by incorporating the ECHR into domestic law.
Evaluation
- The UDHR was a landmark achievement but lacks enforcement
- The ECHR provides legally enforceable rights with a dedicated court
- The ECtHR gives individuals standing to challenge their own government — a powerful accountability mechanism
- However, compliance depends on political will — the Hirst prisoner voting saga shows the limits
- Parliamentary sovereignty means UK rights are not constitutionally entrenched — they can be repealed by ordinary legislation
- Debate continues about whether the UK should replace the HRA with a Bill of Rights — successive governments have proposed this since 2010
Exam approach:
- Compare the UDHR and ECHR in terms of legal status, enforcement, and scope
- Discuss the strengths and weaknesses of the ECtHR as a protection mechanism
- Evaluate whether rights were adequately protected in the UK before the HRA 1998
- Consider the relationship between international human rights instruments and UK domestic law