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human rights law
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Lecture notes of 5 pages for the course Property Law at UoW (human rights)
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Back to Human RightsCouncil of Europe vs European Union
A common mistake! Even well-established lawyers get it wrong…
Might have something to do with the EU copying the CoE flag, also having a Council of Europe and the European Council
Two SEPARATE international institutions
Two SEPARATE international treaties
UK has left the EU but NOT the Council of Europe
Human Rights Act 1998
Means that now you can bring a case, rely on one of the Convention rights, to one of the domestic courts. If you
disagree with the outcome, you then appeal to the ECtHR.
Prior to HRA 1998: Still had Convention rights, you just had to exhaust ALL domestic measures before taking an
application to Strasbourg.
Problem? Takes YEARS to get there (5-8 years) and a lot of money on legal costs.
Key sections- a very brief summary:
S2 – Courts are not bound by the judgments of the ECtHR, but should take them into consideration
S3 – Courts can stretch the meaning of statutes to interpret them in a manner that is compatible with the Convention.
S4 – Declaration of incompatibility – where s3 cannot be used.
S6 – meaning of public bodies. Courts fall within the definition.
The courts are not bound by ECtHR but are the states?
Article 46 of the Convention
Yes if the decision is against the state itself –
E.g. Pye v UK – the United Kingdom would be bound to execute the judgment if a violation was found.
But if against another member state – for example, Austria, Spain, Germany – then NO.
If they however have some good sense about them, they would get in line.
Some Formalities
When you are referring to one of the Articles of the Convention it is NOT Article 1 of the Human Rights Act:
Article 1 of European Convention Human Rights
Versus, Section 3 of Human Rights Act 1998
Also, if you are referring to Article 1 of Protocol 1 of ECHR – make the protocol part clear, because there is also Article 1,
but it has nothing to do with property rights. So be accurate and pay attention to detail.
Human Rights and Property Law
Very relevant – we need to consider how the rights within the Convention and how they impact and interact with
property law.
Most of the textbooks will have a chapter on this – it is a big topic, and we will go back to it in Semester 2.
, Are human rights and property law natural “bedfellows”?
Bevan argues NO. Why?
Many of the property rights relate to what is YOUR and not MINE.
They are more self-centered and are only interested in safeguarding your personal interests, rather than the society at
large.
If you have two houses, and someone else should have none, should that mean that you should give one of them away?
Property law would say NO.
I actually disagree with Bevan (and you’re welcome to disagree with me).
Human rights are about safeguarding THE most fundamental rights and entitlements of every human being, which are
necessary for them to flourish in life.
The right to own property, and for the state to safeguard your belongings is recognized as one of these rights.
In that sense, both human rights and property rights are counter utilitarian – there to protect the individual, against
what may be perceived as a general interest.
What about the clash that Bevan discusses?
Sure, at times our personal property rights may interfere with someone else's human rights.
But that is a common phenomenon when it comes to any rights.
It does not mean that they are necessarily not compatible.
Types of Rights
Important to distinguish between different types of rights:
Civil and Political (ECHR – binding on the UK)
Economic, Social and Cultural (NOT ECHR – you can find these in other international treaties, which although the UK
signed, these do not have the same binding effect.)
Right to housing and shelter – not binding, but nonetheless a human right so you can still make arguments on this in
your essay – just make sure to make it clear.
Which of the Convention rights is relevant?
Article of protocol 1
None of the rights relating to property are ABSOLUTE. This is a ‘qualified’ right as the provision then goes on to provide
for circumstances when a deprivation of one’s own property will be justified.
Why important?
Property is generally safeguarded and not interfered with by the state, but imagine in a context of war, the state may
need to use your property strategically BUT we will see what are the things the state must prove.
What do you need to prove:
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