This chapter examines the right to an adequate standard of living and its components, namely, the rights to food, housing, and health. The chapter analyses the meaning and key features of the right to an adequate standard of living and examines the normative content of that right and its components, namely, the rights to food, housing, and health. The chapter then explores the difficulties and special obligations in ensuring the right to an adequate standard of living for particular groups of people, addresses the relationship between the right to an adequate standard of living and other human rights, examines the question of progressive implementation of the right, and, finally, addresses the justiciability of the right to an adequate standard of living and the need for international action in its implementation.
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10. Adequate Standard of Living
Asbjørn Eide and Wenche Barth Eide
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2. Admissibility of applications
David Harris, Michael O’Boyle, Ed Bates, Carla Buckley, and Paul Harvey
This chapter focuses on admissibility requirements. It discusses the general approach to admissibility; the application of admissibility requirements to individual and inter-state cases; the exhaustion of domestic remedies; the six-month rule; other grounds of inadmissibility; and the competence of the Court.
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2. Admissibility of Applications
David Harris, Michael O’boyle, Ed Bates, Carla M. Buckley, KreŠimir Kamber, ZoË Bryanston-Cross, Peter Cumper, and Heather Green
This chapter focuses on admissibility requirements. It discusses the general approach to admissibility; the application of admissibility requirements to individual and inter-state cases; the exhaustion of domestic remedies; the four-month rule; other grounds of inadmissibility; and the competence of the Court.
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23. Africa
Christof Heyns and Magnus Killander
This chapter examines the role of the African Union in the realization of human rights. It focuses on the principal human rights treaty adopted by the African Union—the African Charter on Human and Peoples’ Rights—and the main organs—the African Commission and the African Court on Human and Peoples’ Rights—that have been established to ensure its implementation. The chapter also considers the complementary African Peer Review Mechanism.
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8. Africa
This chapter examines the role of the African Union, formerly the Organization of African Unity (OAU), in the development of African jurisprudence on human rights. It provides a brief historical background on the African Union and the Charter provisions. The chapter traces the development of human rights protection in Africa; describes the monitoring and enforcement of human rights law; highlights the impact of the African Commission on Human and Peoples’ Rights on human rights in Africa; and explains how States may be held accountable for infringements of rights and freedoms.
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8. The African Human Rights System
Antônio Augusto Cançado Trindade and Damián A. González-Salzberg
Complementing the previous two chapters on regional systems, Chapter 8 focuses on the African regime, delving into its unique characteristics, shaped by the historical and geographical context of its creation and development under the auspices of the Organization of African Unity (OAU) and the African Union (AU). After drawing attention to the work of the African Children’s Committee, the chapter engages with both the African Commission and Court of Human and Peoples’ Rights, discussing their composition and powers. It explores how these bodies can deal with claims concerning the violations of human and peoples’ rights brought before them. As in the previous chapter, particular challenges faced by the system are selected for discussion.
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21. The Americas
Thomas M Antkowiak
This chapter considers human rights protection across the Americas, and focuses in particular on the Organization of American States (OAS). The chapter begins with a historical overview of the OAS. The OAS has drafted and promulgated several human rights documents and treaties, including the American Declaration on the Rights and Duties of Man and the American Convention on Human Rights, as well as others. Having introduced the main instruments for the protection of human rights, the chapter then considers the two main OAS institutions that are mandated to promote and protect human rights: the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. Finally, challenges to the Inter-American system are discussed.
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7. The Americas
This chapter traces the development of human rights protection in the Americas. That is to say, the geographical region spanning from Canada in the north to Argentina and Chile in the south and including the Caribbean states. It discusses the declarations, conventions, and the institutional framework of the Organization of American States tasked with ensuring the compliance of States with the provisions of the American Convention and the potential for Member States to be held accountable for human rights violations even when not party to core human rights treaties. It also considers key sub-regional organizations—MERCOSUR, CARICOM, and the Caribbean Court of Justice.
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7. Ancillary rights
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter focuses Convention rights that are considered ancillary by virtue of the fact that they do not in themselves establish any substantive human rights but are relevant to the way the substantive rights are put into effect. Specifically, the chapter discusses Article 14, which prohibits discrimination in the way Convention rights and freedoms are secured; Article 15, which allows states to derogate from their responsibilities under certain circumstances; Article 16, which allows states to restrict the political activities of aliens; Article 17, which authorises the ECtHR and national courts to refuse to uphold the rights of those who would use them to undermine the rights of others; and Article 18, which insists that rights and freedoms in the Convention can be restricted and qualified.
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26. Anti-terrorism law and human rights
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of la and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter considers the application of human rights in the special circumstances of the threat of terrorism and counter-terrorism measures taken in the UK. It considers the compatibility of the Terrorism Act 2000, and other subsequent measures, with human rights. This includes matters such as the definition of terrorism, police powers under the Act (such as random stop and search), and measures, such as TPIMs, to control terrorist suspects. The impact of these measures on the right to liberty and on private life are important themes. The chapter also considers the effect of such measures on the right to a fair hearing (in Articles 5 and 6). These special powers are often controversial giving rise, as they do, to important tensions between the rule of law and the duty on states to uphold the safety and security of the population.
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22. Applications: media law and privacy
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter deals with human rights and the media. It considers the widespread tension between, on the one hand, the importance in a democratic society of freedom of expression and, on the other, the rights of persons to protect their various interests, particularly when these involve matters of privacy and confidentiality. The importance of the media is fully recognised by the European Court of Human Rights, and Convention rights have had a significant impact, both directly and indirectly, on media law. However, the issue often involves balancing the clear commitment to media freedom derived from Article 10 with other rights such as those in Article 8.
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20. Applications: police powers
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter focuses on the authority of the police in the United Kingdom and on issues which are affected by human rights law under the HRA. Police powers are exercised with the authority of both common law and statute—the latter (e.g. the Police and Public Evidence Act 1984) must be interpreted for compatibility with Convention rights so far as section 3 HRA allows. The police are considered a ‘core’ public authority, and policing is self-evidently a public function. The following sections also discuss the extensive powers of the police in relation to, in particular, Article 5, regarding arrest and detention, and Article 8, regarding searches and seizure. English and Welsh courts adjudicating on these powers have generally found them to be compatible with Convention rights at the general level. Some important cases, such as over the retention, storage and use of personal data, have led to disagreements with Strasbourg and consequential changes to the law.
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21. Applications: prisoners’ rights
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter considers the application of Convention rights in the field of prisoners’ rights; the impact of Convention rights on prisoners in the UK is considered. Prisoners remain within the protection of the European Convention on Human Rights, though the application of these rights will take their position into account. Prisoners’ rights include not only rights to the non-arbitrary loss of liberty (Article 5) and rights to fair procedures (Articles 5 and 6), but also not to be disproportionately denied the rights and freedoms in Articles 8–11. Imprisonment deprives individuals of their liberty and, therefore, is a public function for which the state is responsible under the Convention. The controversy over prisoners’ right to vote is discussed in Chapter 25.
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23. Article 1 of the First Protocol: protection of property
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter discusses Article 1 of the First Protocol. The right to property is controversial. On the one hand, this right can be seen as essential to human flourishing; on the other, property can be seen as representing social and political power, which is distributed unequally. Given the relationship between property and power, it is not surprising that governments have often sought the constitutional freedom to control the production and distribution of wealth in society, which may at times require limiting the right to property. Article 1 of the First Protocol uses terms that seem to accept wide powers of states to control property in the ‘public’ or ‘general’ interest. As discussed in the chapter, the European Court of Human Rights has narrowed this power considerably in the way the Article has been interpreted.
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20. Article 1, First Protocol: The right to property
David Harris, Michael O’Boyle, Ed Bates, and Carla Buckley
Recognition of a pecuniary right in national law or practice will give rise to a ‘possession’ under the Convention. Article 1 imposes upon states positive obligations to protect property, and negative obligations not to interfere with the right to property without justification. It provides for two types of interference: deprivation of property is justified only where it is in the public interest and in accordance with national law and the general principles of international law; control of use of property is justified only where it accords with national law and is in the general interest or to secure the payment of taxes or other contributions. Where interference doesn’t fall into one of these types it is regulated under the first sentence of Article 1. The standard in all cases requires a ‘fair balance’ be struck between the public interest and the burden of the interference on the person.
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20. Article 1, First Protocol: The Right to Property
David Harris, Michael O’boyle, Ed Bates, Carla M. Buckley, KreŠimir Kamber, ZoË Bryanston-Cross, Peter Cumper, and Heather Green
This chapter discusses Article 1 of the First Protocol, which guarantees the right to property. Recognition of a pecuniary right in national law or practice will give rise to a ‘possession’ under the Convention. Article 1 imposes upon states positive obligations to protect property, and negative obligations not to interfere with the right to property without justification. It permits two types of interference: (i) deprivation of property where it is in the public interest and in accordance with national law and the general principles of international law; and (ii) control of use of property where it accords with national law and is in the general interest or to secure the payment of taxes or other contributions. Where interference does not fall within one of these categories, it is regulated under the first sentence of Article 1. The standard in all cases requires a ‘fair balance’ be struck between the public interest and the burden of the interference on the person.
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13. Article 10: Freedom of expression
David Harris, Michael O’Boyle, Ed Bates, and Carla Buckley
This chapter discusses Article 10 of the European Convention on Human Rights, which guarantees freedom of expression. It first delineates the boundaries of protection of Article 10. It then turns to different categories of expression; specific issues relating to the press and media licensing; the standard ‘prescribed by law’; legitimate aims; the notion of ‘duties and responsibilities’ of the bearers of expression rights; and some distinct methodologies advanced by the Court to deal with defamation cases.
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13. Article 10: Freedom of Expression
David Harris, Michael O’boyle, Ed Bates, Carla M. Buckley, KreŠimir Kamber, ZoË Bryanston-Cross, Peter Cumper, and Heather Green
This chapter discusses Article 10 of the European Convention on Human Rights, which guarantees freedom of expression. It first delineates the boundaries of protection of Article 10. It then turns to different categories of expression; specific issues relating to the press and media licensing; the standard ‘prescribed by law’; legitimate aims; the notion of ‘duties and responsibilities’ of the bearers of expression rights; and some distinct methodologies advanced by the Court to deal with defamation cases. The chapter considers the restrictions on expression permitted by Article 10.
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17. Article 10: freedom of expression
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter focuses on Article 10, one of the fundamental rights acknowledged in a liberal, democratic society—freedom of expression. Article 10 is a qualified right which reflects the idea that there can be important and legitimate reasons as to why freedom of expression may need to be restricted in order to protect other important rights and freedoms. While the first paragraph of Article 10 establishes a general right to freedom of expression, its second paragraph identifies the only bases upon which the right can be restricted. Restriction of the freedom of expression is subject to scrutiny by the courts, and its necessity must be established by the state. In particular the chapter discusses human rights in the context of political speech and the impact of restraints on hate speech.
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14. Article 11: Freedom of assembly and association
David Harris, Michael O’Boyle, Ed Bates, and Carla Buckley
Article 11 of the ECHR guarantees the two connected rights of freedom of peaceful assembly and freedom of association. The first includes the freedom to form and join trade unions. Both are essential to the effective working of democracy. Article 11 imposes negative obligations on states not to interfere with these rights unless the interference is prescribed by national law and is necessary in a democratic society to achieve at least one of the aims specified in the Article. Restrictions on striking by the armed forces, police, and administration of the state are permitted under Article 11(2). Positive obligations on states to take reasonable measures to protect the two freedoms have been read into Article 11, including to undertake effective investigations into complaints of interference by private persons. States have a positive obligation to secure the rights of individuals and trade unions against employers and to protect the individual against union power.
