H418/03 - The Convention and its institutions

Post-war origins

The Second World War and the Holocaust exposed the danger of state power used against individuals and entire groups. National law alone had failed to prevent grave abuses. Post-war cooperation therefore sought shared standards and external accountability, while supporting democratic government and the rule of law.

The United Nations adopted the Universal Declaration of Human Rights in 1948. It expressed a broad international statement of rights. The Council of Europe, founded in 1949, developed a regional treaty that made certain rights legally binding on participating states. A declaration and a treaty differ: the Convention creates treaty obligations and a legal enforcement system, rather than merely expressing a political aspiration.

The European Convention on Human Rights, formally the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature in Rome on 4 November 1950. The UK ratified it on 8 March 1951. Ratification is the state's formal consent to be bound by the treaty; it is not the same as immediately creating an identical domestic cause of action. The Convention entered into force on 3 September 1953, after the required ratifications.

The rights were intended to control governments that could otherwise rely on their own legislation as justification. However, many provisions contain carefully defined restrictions. The post-war aim is accountable public power within law, not a promise that government may never interfere with an individual.

Development of the Court

The original Convention system divided enforcement between a Commission, a Court and the Council of Europe's Committee of Ministers. The European Commission of Human Rights screened applications and sought settlement; admissible complaints could move towards a Court decision. Individual access was more restricted than today's direct application procedure.

The European Court of Human Rights, or ECtHR, was established in 1959 in Strasbourg. The UK accepted the right of individual petition and the Court's compulsory jurisdiction in 1966. These steps mattered because individuals could seek international scrutiny of the UK's treatment of them; ratifying a treaty and accepting an individual enforcement route were separate historical stages.

Protocol 11, effective on 1 November 1998, replaced the old Commission/Court structure with a permanent Court and direct individual applications. A protocol is an additional treaty instrument that may amend the system or add rights. States' acceptance of additional rights must be checked; not every protocol is automatically binding on every state.

The Human Rights Act was enacted in the same year, 1998, but its main provisions came into force on 2 October 2000. These are different reforms: Protocol 11 changed international enforcement, while the HRA made specified Convention rights enforceable through domestic legal mechanisms. A UK claimant today should ordinarily use available domestic remedies before Strasbourg.

Institutional relationships

The Convention is the legal treaty, the Council of Europe is the international organisation, and the ECtHR is the court created by the Convention to supervise compliance. The Court's judges sit independently; they do not act as delegates instructed to defend their national government. The Council of Europe's Committee of Ministers supervises execution of final judgments, such as payment of compensation and measures needed to prevent further violations.