Reservations and Derogations

Reservations and Derogations:

- because of the potential for conflict with state interests/sovereignty the echr framework allows state parties to 'opt out' in exceptional circumstances such as art 15 derogations in times of war or public emergency and art 57 reservations in respect of pre-existing laws at time of entry.

- these are closely circumscribed and are not allowed in relation to absolute rights. certain rights are considered so important that u cant derogate from them asthey are considered as absolute rights so there are diff types of rights that exist.

- all rights covered by the echr are regarded as fundamental so equally important but because of the inherent potential of rights to conflict and need to respect democratic principles three diff types of convention rights can be identified: absolute: art 3 4(1) and 7) - freedom of torture, limited rights art 2 and 5 where limited exceptions are identified in the text) those rights have to be respected but in certain consice circumstances. qualified rights such as art 8 - 11 where broader exceptions are permissable as set out in the text. these are the ones most likely to conflict with one another such as right to aprivate family life

Interpreting Convention Rights, ECHR jursprudence:

- the text of the convention provides a framework for the interpretation of certain rights BUT the echr is a very diff source of law subject to its own rules of interpretaton, u can interpret such as in respect of your sexual orientation.

- the ECHR is a very diff source of law subject to its own rules of interpretation: a purposive approach is adopted. the echr makes reference to the aims and purpose of the convention as a living instrument, so the court might 20 years ago that made decisions that did not confer on transexual rights doesnt mean in more recent judgements can change their minds so the court is not formally bound by precedent so how they deal with it they look back at the values, the purpose of and reflect back on the argument put forward to them so see how it can protect the human rights across europe.

Principles of adjudication:

- applicants must raise a prima facie interference with a convention right for their case to be ruled admissable so there must be some evidence to support ur arguement but its not enough to establish ur rights have been breached.

- it is for the court to determine the scope of the right so they interpret what constitutes as lets say 'torture.' secondly u have to establish the facts so evidence. if youre the claiming the right has been breached is an absolute right then thats it there has been a breech. however. not all rights are absolute:

- the burden switches to the applicant to the state and the state has to prove the interference they have perpretated with ur right is in