Drafting of the European Convention on Human Rights

The European concerns for the protection of human rights arose in the same decade as those of the Allied Powers at the international level and largely for the same reason.

The European efforts to improve the protection of human rights was a response to the concerns that arose as a result of World War II and by the new threats to human rights caused by new forms of totalitarianism after the War, with an aim to prevent aggravated violations of human rights¹³⁶. It is worth noting that although Germany took part in the process, its contribution to the negotiations was rather modest. The historical events of Germany had an impact on what was considered important to be included in the European Convention on Human Rights¹³⁷, but the victors of the war played a determining role in the negotiations.¹³⁸ That influence included, among others, that of the United States¹³⁹. However, one must not forget that the German constitutional traditions share some elements in common with those of France, which is explained in more detail in section 2.5 below. Thus, there can be considered to have been at least some degree of indirect influence of German constitutional traditions too, in the form of common history. It is worth underlining, however, that the constitutional traditions presented in the following section are not the only ones that affected the contents of the Convention, but it is a product of a larger group of negotiating States. As a result of the international efforts, the European Convention on Human Rights shares more in common with the Universal Declaration of Human Rights, as well as with the In-ternational Covenant on Civil and Political Rights, than with any individual national constitution. The Covenant was under negotiations partly simultaneously, deriving

135 This does not mean, however, that the legal traditions behind the English legal language would be dominating, but that they co-exist and interact with one another. The process of exchange between traditions is accelerating today. (See Glenn 2004, p. 32.)

136 Sohn and Buergenthal 1973, p. 1000-1002, Bates 2011, p. 18, and White & Ovey 2010, p. 4.

Communism was considered, in particular, to be a new form of totalitarianism.

137 Bates 2011, p. 21. In particular, the aim was to prevent the degradation of human rights from happening again, by creating an enforcement mechanism.

138 For details, see Collected Edition of the Travaux Préparatoires, particularly Vol. I.

139 See Henkin 1990, p. 13 and 14.

also some of its contents from the French constitutional traditions but also from other traditions such as the American constitutional texts, although one may note that the outcome of the international instruments is more detailed than the constitutions of France and the United States, for example. This also applies to the European Conven-tion on Human Rights, although the common constituConven-tional tradiConven-tions of European states played perhaps a bigger role. Indeed, as is pointed out by White & Ovey, the interpretation of the European Convention on Human Rights may legitimately be based on a common tradition of constitutional laws and a large measure of legal tra-dition common to the Member States of the Council of Europe.¹⁴⁰ A further reason affecting the contents of the final text of the Convention in the course of negotiations was the need to have a European mechanism of protection of human rights rather rapidly, for which reason for example economic and social rights were excluded, and some others were left to be regulated by additional protocols such as the protection of property. Instead, the Convention provides for rather detailed provisions on fair trial rights. Also, the in the original convention that has later been replaced with a revised one, the system of individual applications and the competence of the European Court of Human Rights were made optional¹⁴¹. Although a majority of states were originally against the creation of a Court, most of them finally were prepared to accept the idea of an optional court¹⁴². The aim to have a speedy decision on the draft Convention resulted in a compromise text based on the majority opinion, but was not necessary a product that would please everyone¹⁴³. The optional nature of the system of individual applications has been seen as a factor that weakened the development of the case law for a long period of time.

Some concerns were raised during the negotiations on the drafting of the European Convention on possible duplication of efforts at the United Nations and European

140 White & Ovey 2010, p. 77.

141 See the Collected Edition of the Travaux Préparatoires, Vol. I, Introduction, p. XXVI and XXVIII.

The European protection mechanism has, however, been later subject to changes through the adoption of the additional protocols. By Protocol No. 11, the Human Rights Committee was abolished and replaced with a single permanent European Court of Human Rights. The former case law of the Committee and the Court is, however, still relevant, and the former and present case law constitute a continuous development of the protection of the rights guaranteed by the Convention and its additional protocols. For details of the former and present mechanism, see e.g. Pellonpää et al. 2012, p. 141 and seq.

142 Bates 2011, p. 28. Of the States subject to the present research, only France was in favour of the idea of a Court. It is interesting to note that despite this, France finally ratified the Convention and accepted Court’s jurisdiction very late.

143 See, for example, the Collected Edition of the Travaux Préparatoires, Vol. IV, p. 56, for the statement of France. According to Bates, the Convention was also consistently criticised after its adoption for the inadequacy of the substantive text as a free-standing bill of rights. (Bates 2011, p. 32)

levels¹⁴⁴. Thus, a considerable part of the provisions of the Convention are directly based on those of the Universal Declaration of Human Rights¹⁴⁵. Even the drafting of the International Covenant on Human Rights was paid attention to at the European level, due to the two sets of negotiations taking place partly at the same time.¹⁴⁶ However, some elements were excluded intentionally from the European system¹⁴⁷. Differences between the legal systems of the negotiating States were also paid attention to. For example the question of civil rights, covered by the present study, was subject to dis-cussions, particularly for the reason that there is an important difference in concepts between the statutory law and common law countries¹⁴⁸. A comparison between the final texts of the three instruments reveals that the Universal Declaration of Human Rights covers a wider range of rights¹⁴⁹ than the two others, as the binding nature of those two made it necessary to exclude such rights as would have been difficult to approve for some negotiating states, which were thus left to be included in a separate instrument. The comparison of the three instruments also reveals that the European Convention on Human Rights includes considerable similarities with the United Nations instruments, but its provisions go in some respects further. Those provisions include, in particular, the provisions on the powers of the European Court of Human Rights. The final fair trial provisions of the European Convention on Human Rights and the International Covenant on Civil and Political Rights have similarities but are structured somewhat differently.

The languages used for drafting also have an impact on the exact contents of the provisions. As noted in the foregoing, the English and French language versions of

144 See the Collected Edition of the Travaux Préparatoires. For example, the definition of human rights was one of those issues that a number of negotiating States found unnecessary to deal with. (See e.g. Vol. I, p. 10 and 12)

145 For details, see the Collected Edition of the Travaux Préparatoires, Vol. I, p. 196 and 198. All the articles of the European Convention on Human Rights covered by the present study are originally based on those of the Universal Declaration of Human Rights.

146 See the Collected Edition of the Travaux Préparatoires, Vol. III, p. 26, 28, 30 and 32. The negoti-ations for the International Covenant on Human Rights had been initiated somewhat earlier than those on the European Convention on Human Rights, but the text was not adopted until in 1966. (See Pellonpää et al. 2012, p. 12.)

147 Such elements included for example due process elements existing only in the American legal system. (See the Collected Edition of the Travaux Préparatoires, Vol. III, p. 28.)

148 ”It should be noted that there was some discussion in Committee about the term ”civil”. The

“common law” countries pointed out that “civil rights and obligations”, as recognized by the administrative authorities, were not protected by an administrative tribunal. In this respect, there was an important difference from the “civil law” countries. Hence the words “in a suit at law” (“contestation” in the French text) which would enable administrative proceedings to be ex-cluded from the field of application of the Convention.” (See the Collected Edition of the Travaux Préparatoires the Collected Edition of the Travaux Préparatoires , Vol. III, p. 30.)

149 Including the right to seek asylum (Article 14), the right to nationality (Article 15), and a variety of economic, social and cultural rights (Articles 22 to 27).

the European Convention on Human Rights are authentic language versions. The Convention does not provide for the precedence of either language version. Thus, in accordance with Article 33(3) of the Vienna Convention, the terms used in both authentic language versions of the European Convention on Human Rights are pre-sumed to have the same meaning. However, this does not exclude the possibility that national courts in the English or French speaking States parties to the Convention have faced problems in the application or interpretation of its text. In principle, even those States parties where the official languages of the legal system are languages other than English or French, the authentic language versions should be resorted to in the application and interpretation of the Convention, despite that the Convention has been translated into other languages. The Finnish courts in practice use the Finnish and Swedish translations, for example, but official language versions are resorted at least in cases of doubt as to the correctness of the translation¹⁵⁰. This is necessary not only to ensure a correct interpretation of the Convention, but also because it is on the basis of the original texts that the European Court of Human Rights develops the meaning of its provisions.

2.5 Elements in common between the national constitutional