Towards an acceptable working definition of Article 3 of the European Convention on Human Rights

International law, European studies

Phillips, Barry John

University:University of Glasgow

关键词: International law, European studies;   

Others  :  http://theses.gla.ac.uk/71267/1/10390864.pdf

来源: University of Glasgow

【 摘 要 】

Although examples of the prohibition of torture in domestic law can be found as early as the seventeenth century, it was not until the United Nations' Universal Declaration of Human Rights of 1948 that the prohibition found expression at an international level. Article 5 of the Declaration states: "No-one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". This phrase has been reproduced almost verbatim in subsequent human rights instruments at the United Nations, in regional human rights treaties, and in many states' constitutions which guarantee civil liberties and human rights. It is remarkable that despite its ubiquity, the prohibition of torture and ill-treatment as first articulated in the Declaration remains largely undefined. This observation is reinforced when it is noted that, if it is possible to talk of a "hierarchy of rights", the right to be free from torture and ill-treatment must be considered one of the most important. Unlike other human rights documented in international treaties, it is a right from which a State is not permitted to derogate and to which, it is said, it is not possible to compromise. In less than half a century the prohibition of torture and ill-treatment has undergone a complete metamorphosis. Created with the horrors of the Nazi concentration camps in mind, it must now be considered to amount to a standard against which all conduct leading to a suffering of a certain severity may be tested. Despite this change in the raison d'etre of the norm, its interpretation has remained unaltered. This thesis seeks to challenge the present understanding of the prohibition of torture and ill-treatment and to propose a definition of the phrase "torture, cruel, inhuman or degrading treatment or punishment" which would provide a more satisfactory application of this fundamental right.