3B.1.1 - Rules and Theory of Human Rights

Question 1

What are Human Rights?

Answer 1

Legally enforceable freedoms that everyone is entitled to because they are human.

Question 2

What are the key characteristics of human rights?

Answer 2

• universal
• inalienable
• indivisible
• owed by the state to the people
• interdependent

Question 3

Dignity

Answer 3

The idea that there is a certain way that human being ought to be treated. All citizens should be respected whenever states and governments create legislation.

Question 4

Pluralism

Answer 4

The idea that the constitution recognises the rights of all groups in society. It requires the state does not impose a particular belief system or ideology on society as a whole. It means that people should be allowed to express their behaviour through associations and groups.

Question 5

Article 5

Answer 5

The right to liberty and security

Question 6

Article 6

Answer 6

The right to a fair trial

Question 7

Article 8

Answer 7

The right to respect for family and private life

Question 8

Article 10

Answer 8

The right to freedom of expression

Question 9

Article 11

Answer 9

Freedom of assembly and association

Question 10

Democracy

Answer 10

Democracy is a system of representative government which requires validation by the people through elections. It is built on the premise of involvement by the people in the business of the state.

There is a strong link between Article 10 (freedom of expression), Article 11 (freedom of assembly and association) and democracy as these rights are seen to underpin the functioning of a healthy democracy.

Question 11

Separation of powers

Answer 11

The separation of powers theory explains how power should be divided and limited so that no single body is allowed to take too much power into their own hands.

Power should be divided between the three branches of the state:
- The executive
- The legislature
- The judiciary

Question 12

Approaches to interpretation

Answer 12

The ECtHR uses different approaches towards the interpretation of the Articles of the Convention than the rules of interpretation seen in national courts. It has developed certain themes and approaches, including the:
- Balancing of rights
- Margin of appreciation
- Proportionality

Question 13

Balancing of rights

Answer 13

In human rights cases. judges are often trying to balance competing rights. For example, it may be that the right to freedom of expression is balanced against the right to private life. Or the right to protest might be balanced against the threat of public order disturbances.

The balance is most often between protecting the individual’s right and that of the community in general.

Question 14

Proportionality

Answer 14

A method of interpretation developed by the ECtHR when applying the Convention rights. A range of factors will be taken into account when deciding proportionality:
- Were there less restrictive alternative measures which could have been taken instead?
- Are the reasons appropriate? In Stafford v UK (2002), the reasons given did not justify the action taken.
- Were the safeguards inadequate?

Question 15

Subsidiarity

Answer 15

The idea that legal issues should be dealt with effectively by Member States at a central, regional or local level rather than in the ECtHR wherever possible.

Question 16

Margin of appreciation

Answer 16

The idea that when the convention is applied, there is a certain amount of leeway that can be given to individual states to reflect their national priorities and cultural values.

It is most often used in the interpretation of Articles 8-11 but can apply to other articles too.

The doctrine was developed in early cases such as Handyside v UK (1976).

• An example of the margin of appreciation in action is the case of Otto-Preminger Institute v Austria (1994) where a film was banned by the Austrian authorities for its offensive content.

Question 17

Who owes human rights?

Answer 17

Human rights are owed by the state to the people.