Book contents
- Frontmatter
- Dedication
- Preface: A Lifetime of Fidelity and Participation
- Preface: A Penetrating and Salutary Analysis of the European System of Human Rights Protection
- Introduction
- Contents
- Epigraph
- PART ONE International Protection of Human Rights in General
- PART TWO Specific Human Rights Protection
- A Some Specific Human Rights Issues
- Chapter VIII Procedural Issues at the Durban Conference against Racism
- Chapter IX The Internal Applicability of Human Rights Treaty Provisions
- Chapter X The Death Penalty and Irreducible Life Sentences
- Chapter XI Limits to the Jurisdiction of the Court of Strasbourg?
- Chapter XII The Court of Strasbourg and Positive Obligations
- B Some Specific Human Rights Regimes
- Annex: At the Crossroads of Law and Politics
- Bibliographies
- About the Author
Chapter XI - Limits to the Jurisdiction of the Court of Strasbourg?
from A - Some Specific Human Rights Issues
Published online by Cambridge University Press: 25 September 2018
- Frontmatter
- Dedication
- Preface: A Lifetime of Fidelity and Participation
- Preface: A Penetrating and Salutary Analysis of the European System of Human Rights Protection
- Introduction
- Contents
- Epigraph
- PART ONE International Protection of Human Rights in General
- PART TWO Specific Human Rights Protection
- A Some Specific Human Rights Issues
- Chapter VIII Procedural Issues at the Durban Conference against Racism
- Chapter IX The Internal Applicability of Human Rights Treaty Provisions
- Chapter X The Death Penalty and Irreducible Life Sentences
- Chapter XI Limits to the Jurisdiction of the Court of Strasbourg?
- Chapter XII The Court of Strasbourg and Positive Obligations
- B Some Specific Human Rights Regimes
- Annex: At the Crossroads of Law and Politics
- Bibliographies
- About the Author
Summary
At the opening of the judicial year 2007 of the European Court of Human Rights, Judge Françoise Tulkens (later Vice-President of the Court) made a presentation in which she formulated the following relevant questions:
“Can international treaties be interpreted in such a way as to impose more obligations on States than they are prepared to accept? More specifically, to what extent does the sovereignty principle admit of an interpretation that goes beyond the original intention of the treaty and modifies the substance of the obligations to which the States initially committed themselves?”
At the seminar organised on the occasion of the opening of the judicial year 2011 of the Court, Judge Tulkens repeated the same questions and one of the speakers at that seminar, Baroness Hale of Richmond, Justice at the Supreme Court of the United Kingdom, tried to reply.
A. “THERE MUST BE SOME LIMITS”
In another speech, delivered at the Barnard's Inn Reading on 16 June 2011, Baroness Hale of Richmond, referring to Tyrer v. the United Kingdom, 25 April 1978, §31 (“the Convention is a living instrument which […] must be interpreted in the light of present day conditions”), observed:
“A tree has a life of its own, but it can only grow and develop within its natural limits [273]. It is not an unstoppable beanstalk grown from a magic bean. At a time when many are worried about how far the ECHR may develop beyond the original expectations of its framers, it seems reasonable to ask whether there are any natural limits to its growth and what those might be”.274
She believes that some things are better left to Parliament because (a) courts cannot engage in empirical research or conduct opinion polls, (b) courts cannot devise whole new legislative schemes and (c) some things ought to be decided by a democratically elected Parliament rather than by the courts. As far as the interpretation of statutes is concerned, she recognises that:
“trying to divine what Parliament really meant […] is mostly an illusion, because on most points […] Parliament did not have any intention at all. It had never been thought of”.
- Type
- Chapter
- Information
- International Human Rights ProtectionBalanced, Critical, Realistic, pp. 127 - 136Publisher: IntersentiaPrint publication year: 2016