Europe and the law
Europe and the law

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Europe and the law

2.2 The Convention itself

The ECHR is essentially a charter of rights. Any charter of rights represents a consensus, a negotiated agreement between the drafters. Every state intending to adopt a charter will have its own vision and aims, and the drafters have to find a way of accommodating these visions and aims. This often results in the creation of provisions that are a compromise and are drafted in the widest possible terms. The ECHR is drafted in such a way. It is a vaguely worded aspirational charter intended to have the force of law. The treaty itself was largely-drafted by UK lawyers, including a future Lord Chancellor, Sir David Maxwell Fyfe. In the drafting of the charter certain English domestic legal documents and procedures were drawn upon including the writ of habeas corpus, the 1215 Magna Carta, the Bill of Rights and the Act of Settlement. The drafting team also drew upon some of the international agreements which were being signed at this time, including the 1948 Universal Declaration of Human Rights from the United Nations.

Each nation state which signed the charter was to then incorporate the European Convention on Human Rights into their domestic legislation. The UK was one of the first members to sign the Convention and accept the jurisdiction of the European Court of Human Rights (based in Strasbourg). This eagerness was somewhat diluted as the UK became one of the last states to incorporate the ECHR into domestic law. The Human Rights Act 1998, the instrument of incorporation, is considered in OpenLearn course W100_5 Human rights and the law.

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