The European Convention on Human Rights as a Living InstrumentHuman rights law (Essay Sample)

THE EUROPEAN CONVENTION ON HUMAN RIGHTS AS A LIVING INSTRUMENT
TABLE OF CONTENTS
TABLE OF CONTENTS……………………………………..………………………….……2
1. DEFINITION OF TERMS…………………………….….………….……………………...3
1.1 INTRODUCTION…………………………………………..………..………………….…3
2 .0 DISCUSSION…………………………………………………………..…………………4
2.1THE EUROPEAN COURT OF HUMAN RIGHTS AS A LIVING INSTRUMENT………………………………………………………………….………….…5
3.0 SUMMARY…………………………………………………………….………………….6
3.1 CONCLUSTION………………………………………………………….………………..7
3.2 REFERENCES……………………………………………………………………………..8
DEFINITION OF TERMS
Living instrument has been described as human right treaties that establishes an implementation system.[Philip Leach, Taking a Case to the European Court of Human Rights: Article 2: Right to life (3rdEdn, OUP, 2011) 184,]
Human rights on the other hand are basically moral principles and norms with a description of standards of human behavior and have guaranteed legal protection of in both the municipal and the international law. The rights are applied regardless of where you come from, what you believe in or how you choose to live your life.
The European Court of Human Rights (ECtHR) is an international court set up in 1959 revolving around rules on individual or state applications alleging violation of the civil and political rights set out in the European convention for human rights[Alastair R. Mowbray 2007, European Convention on Human Rights: Right to Life (2ndEdn, OUP 2007) 113]
Introduction
The European Court of Human Rights (ECtHR) was established to protect the Human Rights and the fundamental freedoms in Europe as well is an important treaty as it protects the fundamental rights of humans and balances the lives of people and societies. Article 2 of The European Cοnventiοn on Human Rights (ECHR) states: “Everyοne’s right tο life shall be protected by law and no one shall be deprived of his life intentionally”. This provision, is absolute in respect of the right to life as it may never be limited or restricted, whatever the circumstances.
The ECtHR interprets living instruments as human treaties that establish an implementation system, this approach has allowed ECtHR to criminalize homosexuality regarding it as a violation of human rights in the contemporary period despite the fact that it was the norm when the treaty when the treaty itself was signed.[Alastair R. Mowbray 2007, European Convention on Human Rights: Right to Life (2ndEdn, OUP 2007) 113]
THE EUROPEAN COURT OF HUMAN RIGHTS AS A LIVING INSTRUMENT
In the hands of European Court of Human Rights, the idea of a living instrument has three main features; the present- day standards is an important factor in interpreting of the convention because it will very rarely inquire into what was thought to be acceptable state of conduct when the convention was drafted. The second feature is that the present – day standards that the court takes into consideration must be common or shared among contracting states. Third, the Court will not assign decisive importance to what the respondent say be it (authorities or public opinion) if at all the respondents practice is out of line with the commonly accepted standards in the council of Europe.
The idea of living instrument has been figured in the following cases; Tyrer vUnited Kingdom the punishment having the form of bare-skin birching was carried out by a policeman at a police station , was prescribed by law and practiced Isle of Man, dependent territory of the United Kingdom. The court had to decide whether judicial corporal punishment of juveniles amount to degrading punishment within the meaning of article 3of the convention. The attorney General in his submissions to the court, argued that “judicial corporal punishment could not be considered degrading because it did not outrage public opinion in the Isle of Man.” The court rejected this argument. The court went on to decide the case on purely substantive consideration. “The very nature of judicial corporal is that it involves one human being inflicting physical violence on another man and it is an institutionalized assault on a person’s dignity and physical integrity , which is precisely what article 3 of the Convention aims to protect. It further added that institutionalized character of the punishment , the fact that it is inflicted by total strangers to the offender , and the fact that it is administered over the bare posterior, all add up to the punishment being degrading.” The court concluded that article 3 of the convention had been breached. For the Court to deliver such a ruling, it recalled that the convention is a ‘living instrument’ and must be interpreted to in the light of present-day conditions.[Tyrer v. United Kingdom, (Appl No. 5856/72) Judgment of 25 April 1978, Series A no. 26.]
Merckx v Belgium, a child born out of wedlock and his unmarried mother, complained that Belgian legislation violated their right to family under article 8 of the convention, and discriminated against them, contrary to article 14 of the convention. Belgian law at time did not follow the maxim ‘mater semper certa Est’, denying maternal affiliation between children born out of wedlock (‘illegitimate children’). The court noted that, “article 8 ECHR makes no distinction between ‘legitimate’ and ‘illegitimate’ family and that such distinction would anyway contract article 14 of the convention.” The Court concluded that article 8 of the convention had been breached.[Marckx v Belgium, (Appl No. 6833/74) Judgment of 13 June 1979, Series A no.31.]
In the case of Dudgeon v United Kingdom, ,decided in 1981, the main issue was whether penalization of homosexuality in Northern Ireland violated the right to respect for private life guaranteed by article 8(1). The respondent state drew the attention of the Court’s attention to the particulars of Northern Ireland: “It’s a conserva