The Gazette 1973

The European Convention At the first debate of the Assembly of the new organ- isation, the question of a European Charter of Rights arose. It was decided to refer the question to the Com- mittee on Legal and Administrative Questions. They took the United Nations Declaration as their starting point and listed ten rights, which they felt should be guaranteed. For the next two years, drafts of a conven- tion were referred from Committee to Assembly, from Assembly to Committee of Ministers. Throughout this process can be seen the enthusiasm of the Assembly for the idea of an international guarantee of enforceable rights being checked by the political caution of the Committee of Ministers. There were many compromises, even then it was not possible to get an agreed text, and in the end it was really the Committee of Ministers' draft that was signed in Rome on 4th November 1950. The Convention was considerably weaker than many had hoped for and in particular the right of individual petition and the acceptance of the jurisdiction of the Court were optional. Sir David Maxwell-Fyfe (later to become Lord Chancellor Kilmuir) tells in his memoirs how the then President of the Consultative Assembly, Paul Henri Spaak, announced the signing of the Con- vention. "The Convention of Human Rights will be signed by fifteen countries at 3 p.m. at Palazzo Barbe- rini. It is not a very good Convention, but it is a lovely palace." Perhaps to the vision of a Spaak, a Monnet or a Schumann the Convention was but a poor step, but to us, looking back, it appears as an important and prom- ising development. The parties to the Convention pledged themselves to secure to everyone, not just citizens, the rights and freedoms defined in the Convention. These were the right to life, freedom from torture, freedom from slav- ery or servitude, the right to liberty and security of persons, to a fair trial in the determination of one's civil rights and obligations and on any criminal charge, freedom from ex post facto legislation or penalties, the right to respect for private and family life, the right to freedom of thought, conscience and religion, the right to freedom of expression, peaceful assembly, association, to marry and to found a family. Those whose rights were violated were to have an effective remedy before a national authority and the rights and freedoms guar- anteed were to be secured without discrimination on any ground. In time of war or other public emergency threatening the life of the nation, any party could derogate from its obligations, but only to the extent strictly required by the exigencies of the situation and provided the meas- ures were not inconsistent with its other obligations under International Law. There can be no derogation from the articles on torture, slavery or ex post facto legislation. It was decided in the case of Lawless v. Ireland that the derogating government must satisfy the Commission and the Court of the seriousness of the situation. It should be observed that this has brought about a restriction on the practice if not the law on internment under the Offences Against the State Acts in this jurisdiction. However, it is not in the rights guaranteed but in the measures it contains for their implementation, that the originality and value of the Convention lie. The organs of the Convention Two organs were set up, the European Commission and the European Court of Human Rights. Any State

Declaration also deals with rights such as that to nation- ality, to marry and to found a family, to take part in government, to education and to an adequate standard of living which in itself, implies freedom from hunger and the right to health. Though having no legal force even in international law, the Declaration as a common standard for all nations must be taken to have exerted a considerable influence on the world. It has been used as the justifi- cation for various international actions by the U.N. It has inspired many international agreements both inside and outside the world body and it has influenced national constitutions and laws adopted since 1948. The United Nations gives a list of countries in whose consti- tutions devotion to the ideals of the Declaration are expressed : Algeria, Burundi, Cameroun, Chad, Demo- cratic Republic of the Congo, Republic of the Congo, Dahomey, Gabon, Guinea, Ivory Coast, Malagassy Republic, Mali, Mauritania, Niger, Senegal, Togo and Upper Volta. Two things strike me about this list. First, with the exception of the Republic of the Congo which was Belgian, they were all French colonies and their constitutions would follow the French tradition of mere declarations of rights but without any enforce- ment machinery. Secondly, they are all African, and with few excep- tions, the history of Human Rights in Africa post- independence has not been happy. Nonetheless as distinguished an authority as Mr. Sean MacBride has repeatedly called the Declaration the most important document in the history of Human Rights and indeed of Man. But as the German consti- tutional lawyer, George Jellinek once observed, the political history of ideas must not be political literary history but must always be considered in relation to the history of constitutional realities. "Ubi remedium ibi jus" may not be a desirable principle on which to build a dynamic legal system but the availability of a remedy is the test of a system's effectiveness. I leave for the time being the United Nations who were to spend the next eighteen years drafting the second part of the International Bill of Rights—the Covenants, and turn to Europe. Origins of the European Movement Perhaps it was inevitable that Europeans after the war should have an immediate sense of the link between peace and the observance of human rights. Certainly the pioneers of the United Europe Movement were in no doubt that this was the basis on which a successful unity would be built. The Congress of Europe held at The Hague in May 1948 with 713 delegates from sixteen countries (includ- ing Ireland), laid the basis for the formation of the Council of Europe. In the "Message to Europeans" issued at the close of the Conference, the delegates declared. "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 sanction for the implementation of this Charter." The Statute of the Council of Europe was signed in London a year later on 5th May 1949. It came into force on August 3rd of the same year. Article 3 of the Statute laid down the conditions of membership of the Council. They include acceptance of the principles of the rule of law and enjoyment in the member's territory of human rights and fundamental freedoms.

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