Implementation of the Basic Human Right - the Right for Freedom due to the European Convention of Human Rights - Term Paper Example

LIBERTY IN QUESTION We desire a united Europe, through out whose area the free movement Of persons, ideas, and goods is restored. 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 sanctions for the Implementation of this Charter; We desire a European Assembly where the live forces of all our nations Shall be represented; And pledge ourselves in our homes and in public, in our political and religious Life, in our professional and trade union circles, to give our fullest support to all Persons and governments working for this lofty cause, which offers the last chance Of peace and the one promise of a great future for this generation and Those that will succeed it. - Sir Winston Churchill INTRODUCTION “One of the initial questions in any philosophical inquiry is what is meant by human rights” 1. Prior to this era, the idea of human rights that we hold close into our hearts as a fundamental and basic right that all human beings possess regardless of class, gender, race, education, religion, tradition and culture and other factors that make us different from one another is unknown. And that is why, more often than not, we tap our shoulders and claim that as we write our history, we have become more human and more humane because we start to see each and every man and woman as our co-equal bearers of human rights. The sublimeness of the idea of human rights is enough to capture the imagination and fancy of someone reflecting on the idea. But if one is pulled back into reality, with the grimness of the world that human beings have created for themselves, one then is thrust to the question of justice, of equality, of liberty, of rights, and of freedom. And for this very reason the European Convention for the Protection of Human Rights and Fundamental Freedom and its Eight Protocol came into inception. Europe ravaged by the atrocities of the Second Wold War had become the living witness of the extent of the possibility of the madness that could be inflicted by man to other men. Thus, the man made catastrophe – genocide - had spurred various leaders of Europe to come together and create a treaty. A convention that will have for its undertakings “the promotion or encouragement of respect for human rights and fundamental freedoms for all without distinction, and to take joint and separate action in co-operation with the Organization for the achievement of these objectives.”2 Together with this sad and horrifying experience of Europe is the fact that during the creation of the convention, Europe is “ideologically broken,” because during that time the “ideological conflict between Eastern Europe and Western Europe”3 was as real and as palpable as any concrete human experience. With these two reasons acting as the primary motivators and ethos, Europe had created the European Convention for the protection of Human Rights and Fundamental Freedoms and its eight Protocols. This convention was “signed on November 4, 1950”4 and “entered into force on September 3, 1953”5 It is in this light that this paper is being pursued - to be able to shed light into the question of liberty as it is elucidated and clarified in the “European Convention for the Protection of Human Rights and Fundamental Freedoms and Its Eight Protocols.”6 HUMAN RIGHTS DEFINED “Human beings as such had no rights under the traditional international law, which was defined as the law which governed relations between states.”7 1945, events during this time were ravage by bloody war, fear of dictatorship, and other conflicts created by man that threatens and terrorizes the very core of peaceful co-existence. Thus, the Charter of the United Nations is largely concerned with furthering peaceful relation to save succeeding generations from the scourge of war to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained to unite our strength to maintain international peace and security. An understanding of the meaning and history of human rights is essential if our way of life is to flourish. “The term human right was widely used in the period after World War II… but the concept of human rights has a long history. No where in the world are people completely secure in their civil, political, social, cultural, and economic rights have been attained, a constant struggle is necessary to avoid their erosion.”8 According to Palumbo in his book Human Rights: Meaning and History “Human rights can best be defined as those rights which human beings have simply because they are human beings.”9 He added that “they are equal and inalienable rights, held by all human beings simply because they are human and exercisable against the state and society are distinctive, historically unusual set of social values and practices. These rights are quite independent of social circumstance or the level of achievement which an individual has attained.”10 “A person’s human rights can not be relinquished, transferred. Or fortified by the actions of another individual.”11 As the development of the world continuous to propel, a landmark figure arises especially in the modern world, which gave an incredible influence remarkably in the field of recognizing the rights of an individual human person. That brilliant mind that has opened the doors of recognizing the rights of every person is an English philosopher in the person of John Locke (1632-1704) whose basic theme in philosophizing was on man’s inherent right to life, liberty, equality and property, especially against the incursions of arbitrary government. “Man in the state of nature is so free… be absolutelord of his own person and possessions, equal to the greatest, and subject to nobody…”12 As the concept of Human Rights evolved Palumbo clearly stated that the modern concept of human rights deals with human interest. To quote him, “Since 1945 there has been a renewed interest in the doctrine of human rights. The atrocities, which took place during World War II, convinced many people that human rights had to be established on a firm foundation, to prevent the recurrence of such horror. In 1948 the United Nations adopted the Universal declaration of Human Rights which basically states that, “All human beings are born free and equal in dignity and rights. Everyone is entitled to all the rights and freedoms….”13 Much of this document is basically a continuation of the classical definition of human rights, based on natural law: “the right to life, liberty, property, equality, justice, and pursuit of happiness…”14 But in addition, the Declaration goes on to assert rights which substantially broaden the traditional concept. That includes assertion that everyone has the right to social security, education, to equal pay for equal work, the right to an adequate standard of living, and the right to leisure, including periodic holidays with pay. Later on the economic and social rights were added. Thus, the “fundamental human rights have only recently come to play a significant role in community law.”15 It was due to the perils of war that brought Europe into a state of division and “human rights, however, remained a decidedly secondary concern…”16 The European Convention for the Protection of Human Rights and Fundamental Freedom and Its Eight Protocols was signed on November 1950 that was two years after the United Nations adopted the universal declaration of human rights. The heads of the member states of the Council of Europe met to sign the European Convention on Human Rights. With the aim of laying down “foundations for the new Europe which they hoped to build on the ruins of a continent ravaged by a fratricidal war of unparalleled atrocity.”17 Thus, the Council of Europe dreamed of the “achievement of a greater unity between members and that one of the methods by which that aim is to be pursued is the maintenance and further realization of Human Rights and Fundamental Freedoms.”18 “This concerned a community scheme to provide cheap butter for recipients of welfare benefits.”19 “In these emerging human rights norms, there was a clear consensus that the states must be made accountable…”20 for the restoration of democracy. “It would be surprising if it did not demand a change….”21 The very mantra was for the protection of the established democracy. For “democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation.”22 For without respecting the rights of every individual it would indicate a dilapidation of the establish democracy. Which will lead to the danger of dictatorship. So much so, the move to protect the rights and freedom of individuals will rescue the window and the plot of a dictatorial state. Even though many of the statesmen were still in prison during and after World War II, many of them cast the first dice of protecting the rights of every individual. In the words of Roberts & Merrills, the statesmen “were conscious of the need to prevent any recrudescence of dictatorship… democracy is secure… and a war is remote.”23 The council faced a perplexity on the implementation, how sure are they that member states will wholeheartedly accepts, respect and safeguard human rights and freedom. They come up with collective agreement which “guaranteed rights and freedoms, as well as the application of these laws, are in accordance with the general principles of the law as recognized by civilized nations referred to in Article 38(1)(c).”24 On the other hand, to warrant the implementation of the “collective guarantee of human rights”25 the European Commission for Human Rights and the European Court of Justice were established. Thus, the laying down in the advancement of defending human rights and freedom is vital and necessary in a democratic society and the establishment of the institutions as overseer on how depth member states observed it. THE EXTENT IN PROTECTING RIGHTS Our previous discussion deals in brief on the historical conception of the rise of human rights and freedom consciousness. Which leads to the promotion in guaranteeing and protecting individual rights. The basic inquiry posed on this paper is the question with regards to what extent is it true that under the convention no one can be deprived of his/ her liberty? I would imagine this very question is posed not only to the people of Europe but to all civilized countries that adhere and vowed to protect human rights to its citizenry and in general to all individuals who are citizens of the world. For violating ones right can be equated as denying ones enjoyment of life. Furthermore, human being has an inherent right be it written down and defined or nature tells us the necessity of protecting and upholding life. “Mankind’s natural conditions not as an historical condition existing before the emergence of civil society but as a logical abstraction from the essential nature of man.”26 Thus, the very foundation why society exists is basically to uphold and to bolster life. Government and laws as a product of any co-habitation were created for the main purpose of dignifying life and to protecting it from any danger that posses harm to life. From the smallest to the largest convergence abode of people they seem to fight for their rights. For none among us (humans) feel better if somebody trampled and denies us our freedom and liberties. In every corner of the globe one can hear cries of freedom and liberation from their oppressors. Every where there is war just to regain what has been denied from them or the opposite, a war on terror to subdue the freedom of others. But, the fact is people stood up to fight for their rights. Given such facts and looking at the basics that rights has been possessed and acquired since conception (or may be others would see it by birth), then, what is the intent of the written Universal Declaration of Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms and Its Eight Protocols? And how true is it that under the Convention no one can be deprived of his/ her liberty? As Parekh would claim that “All societies value life in some form as otherwise they would last a day, and they also generally seek to avoid cruelty…”27 Thus, “In the recent years there has been a worldwide-renewed concern about the suppression of human rights. In part, this has been a reaction to the alarming increase in the violation of human rights in every section of the globe.”28 “There are violations of human rights in countries of every political persuasion and of course it is impossible to describe conditions in all nations where human rights are imperiled.”29 But we can have glance on whose fingers are pointing to whom. “Those who have right wing or conservative political views are fond of pointing out human rights violations in Marxist-oriented regimes. Liberals and those left leanings criticize the human rights policies in countries ruled by reactionary military juntas, which are under the influence of Western imperialism. There is unfortunately, no lack to support the accusations of both conservatives and liberals.”30 In other words amidst the written and widely accepted Universal Declaration of Human Rights, it is very clear that, time and again it is violated for whatever reason. The written Universal Declaration of Human Rights is only a signpost that is of help in the recognition of the basic claim of every human person. That is, per individual has a claim or right on whatever it is, on whoever it is by virtue of his or her nature as human being. As Brown claims, saying, “The language of rights has facilitated the establishment of some the freest, safest, and most civilized societies known to history.”31 The European Convention for the Protection of Human Rights and Fundamental Freedoms and Its Eight Protocol, as we observe its article it is deemed to protect human life by means of law. As specified in section 1 article 2, which states, “Everyone’s life shall be protected by law.”32 In article 3 it says, “No one shall be subjected to torture or to inhuman degrading treatment or punishment.”33 In article 4 (1) it says, “No one shall be held in slavery or servitude.”34 And in article 5, “Everyone has the right to liberty and security of person.”35 These are just the few examples paraphrased and recapitulated, which shows how the convention safeguarded the rights and liberty of every individual. What have been written in the European Convention for the Protection of Human Rights and Fundamental Freedoms and Its Eight Protocols are the ideals and effective guidelines in the recognition and in observance of the rights of every individual. It is through this Convention that human persons were basically recognized and that they were assisted and guided how to respect themselves and others. It is through this Convention that every human right is specified, recognized, and respected, and being protected by law. It is through this Convention that each individual right is being harnessed and preserved. Within the bounds of this European Convention for the Protection of Human Rights and Fundamental Freedoms and Its Eight Protocols, one is truly with no doubt a human being worthy of respect, with his/ her rights, freedom, and liberty are fully accomplished, which somehow can be claimed as “a higher and wider form of existence.”36 LIBERTY IN FOCUS Though it can be claimed that the moment we start discussing the concept of rights, a necessary part of it is the discussion of liberty. Being such, the first thing that often comes to mind is the notion that perhaps there is no intrinsic difference between right and liberty. However, European Convention for Human Rights has made certain qualifications. As Article 2 pertains to ‘right to life, Article 5 refers to “liberty and security of person.”37 This present the idea that part of the right that we enjoy as human beings is the idea that “no individual shall be deprived of his/her liberty.” And the liberty that we enjoy appertains to the notion that the provision is “to protect the individual against arbitrary arrest or detention and in most cases demonstrating its applicability is quite straightforward.”38 Accordingly, this in turn implies that nobody can be put behind bars, thrown into a jail, locked up in a mental hospital without any justification or in case it is done on an individual. What we have to establish is the justification for the action. However, the problem with this is that not all cases are as clear cut as being detained in jail with out reason. Sometimes, there are cases wherein the detention or arbitrary deprivation of liberty is entailed in the position or office held by the individual concern. Take the issue in the “Engel.” The case pertains to members of the armed forces who are being subjected to deprivation of liberty as part of punishments of military discipline. In this instance the Court has ruled that the deprivation of liberty is not to be interpreted in a similar fashion when it comes to civilians and service men invoking it as their defense. But what is upheld is the notion that: A disciplinary penalty or measure which on analysis would unquestionably be deemed deprivation of liberty were it to be applied to a civilian may not possess this characteristic when imposed on a serviceman. Nevertheless, such penalty or measure does not escape or measure does not escape the terms of Article 5 when it takes the form of restriction that clearly deviate from the normal conditions of life within the armed forces of the Contracting States. In order to establish whether this is so, account should be taken of a whole range of factors such as the nature, duration, effects and manner of execution of the penalty or measure in question.39 Thus, with this decision of the Court what appears to be the deciding factor in the analysis and interpretation of the terms “deprivation of liberty” are not the theoretical considerations but the actual circumstances of the individual. And this approach is in fact the “general feature of their interpretation of the Convention as illustrated in the Weeks case.”40 Moreover, the Court in the landmark case Guzzarde has stipulated that the difference between deprivation of liberty and restriction of liberty is one of degree and intensity rather than substance or nature. This important decision has given a clearer interpretation and parameters with regards to the application of the law. Although it may appear to be leaning towards the right of the individual over that of the government, the Court allows a certain margin or a little leeway in the application of the law. But in the end what is of paramount importance is the fact that the deprivation of liberty is to be appreciated, understood and implemented on the basis of two important elements. The circumstances of the individual and deprivation are basically different with restriction in matter of degree only and not in nature. These two elements that is more or less the key factors that enable us to know and clarify the idea of deprivation of liberty present the notion tat just like all rights, the right to liberty is not with out limitation. What do we mean? Article 5 of the European Convention provides: 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following case and in accordance with a procedure provided by law; (a) The lawful detention of a person after conviction by a competent court (b) The lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law; (c) The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offense or fleeing after having done so; (d) The detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before competent legal authority; (e) The lawful detention of persons for the prevention of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) The lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or a person the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language, which he understands, of the reasons for his arrest and of any charges against him. 3. Everyone arrested or detained in accordance with the provisions .of paragraph 1c of this article shall be brought promptly before a judge or other office authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear to trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been a victim of arrest or detention in contravention of the provision of this Article shall have an enforceable right to compensation. Article 5 (1), although it speaks of the ideal that no person shall be deprived of his/her liberty, it does not present the idea that this particular right which human beings enjoy as part of the rights entailed in us being human is not absolute. The presence of the clause “Save in the following case” affords us the opportunity to interpret the law in such a way that it tells us that there are instances and cases wherein the deprivation of liberty is deemed appropriate. The “save in the following case” clause basically sets the parameters by which we can claim that the deprivation is in fact not a deprivation. The cases that acts as parameters are basically the grounds that justifies a deprivation of liberty. And the clear setting of the instances where deprivation can be considered as justified gives us the notion that any case that may be encountered that is not under the purview of six cases wherein deprivation is justified shall be perceived as a deprivation. The clarity of the law as it pertains to the parameters for the application of Article 5 (1) clearly presents the idea that the entire article is geared towards the protection of the individual against arbitrary detention. Thus, the “save in the following clause” are the only instances wherein detention is not to be seen and appreciated as a deprivation of liberty. CONCLUSION Indeed, the European Convention of Human Rights just like all declarations regarding human rights affirm the basic right that nobody shall be deprived of his /her liberty. It is a clear-cut guide that assists an individual on how to respect and uphold its and everyone’s rights. It is true to the extent that article 5 (1) secures and protects the individual form arbitrary and whimsical detention. This protection, the Article provides affirmations and asserts that the human beings are not animals or plants that can be caged and kept at whim. The definitive phrases that gives the possible instances wherein the detention is not to be seen and appreciated as a deprivation are the only cases that allows detention. These precessions in the definiteness in the choice of terms is a sure manifestation that law is intended to be applied in its clear and definite definition without any vagueness or ambiguity. The position that it is true in an absolute sense is highly mistaken. For the simple reason that there is no such thing as absolute right, absolute liberty. The claim that it is true with certain exceptions is the more viable answer. This I hold on the basis that the right to liberty, the right not to be subjected to arbitrary arrest, is in lieu with the whole intentions, purposes and reasons why the European Convention was embarked and established. To negatively appreciate the parameters set in Article 5 (1) is to miss comprehend the spirit of the law thus, misinterpreting the true and real sense of human rights, of human liberty and of human dignity. “The discourse of human rights is potentially crucial to human history because it is part of the language of the human species’ self-creating emancipation from natural and societal threats.”41 And, “If, therefore, one is entitled to seek one’s own rights, must be equally ready to fulfill one’s duties towards others.”42 Lastly, “fifty years ago there was no body of international human rights law to speak of… today, through the United Nations and its half-century of enactment, an impressive body of human rights doctrine is embodied in international law.”43 And as Robertson & Merrills assess the extent of the effect of the Convention some forty years after its conception they concluded, saying: “Today, more than forty years on, the success of their efforts is apparent. The Convention, although now just one among many human rights treaties, is certainly the most fully developed and the best observed… the institutions which the Convention creates, the European Commission and the Court of Human Rights... have through their work provided an inspiring model for other human rights systems.”44 BIBLIOGRAPHY: Booth, K. (1999). Three Tyrannies. In Dunne, T., Whuler, N. Ed. Human Rights in Global Politics. New York: Cambridge University Press. Brown, C. (1999). Universal Rights: A Critique. In Dunne, T., Whuler, N. Ed. Human Rights in Global Politics. New York: Cambridge University Press. Buergenthal, T. (2002). International Human Rights in an Historical Perspective. In J. Symonides, Ed. Human Rights: Concept and Standard. Darth Mouth: England: Unesco Publishing. Donnelly, J. (1999). The Social Construction of International Human Rights. In Dunne, T., Whuler, N. Ed. Human Rights in Global Politics. New York: Cambridge University Press. Dunne, T., Whuler, N. Ed. (1999). Human Rights in Global Politics. New York: Cambridge University Press. Hartley, T.C. (3rd Ed). Foundation of European Community Law. Oxford: Aarendon Law Sines. Ishay, M. R., Ed. (1997). The Human Rights Reader: Major Political Essays, Speeches and Document from the Bible to the Present. London: Routledge. Locke, J. (1964). Of Civil Government, a Gateway Edition .75. Chicago: Henry Renery Company. Locke, J. (1980). Second Treatise of Government (originally published in 1690). Cambridge: Hackett Publishing Company, Inc. Midgley, M. (1999). Towards an Ethic Responsibility. In Dunne, T., Whuler, N. Ed. Human Rights in Global Politics. New York: Cambridge University Press. Newman, J. (1964). The Principles of Peace. Oxford: Catholic Social Guild. Palumbo, M. (1982). Human Rights: Meaning and History. Malabar, Florida: Robert E. Krieger Publishing Company. Parekh, B. (1999). Non-Ethnocentric Universalism. In Dunne, T., Whuler, N. Ed. Human Rights in Global Politics. New York: Cambridge University Press. Robertson, A. H., Merrills, J.G. (1993). Human Rights in Europe: A Study of the European Convention on Human Rights. Manchester: Manchester University Press. Shestack, J. (2002). The Philosophical Foundations of Human Rights. In J. Symonides, Ed. Human Rights: Concept and Standard. Darth Mouth: England: Unesco Publishing. White, M. (1957). The Age of Analysis: 20th Century Philosophers. New York: The Mentor Book, New American Library. Read More