The European Convention on Human Rights and its Impact on National Private Law: An Introduction

Summary

1. THE APPLICATION OF THE CONVENTION IN HORIZONTAL RELATIONSHIPS

As Norberto Bobbio writes, human rights are historical rights; that is to say they are born in definite circumstances, marked by the efforts to protect new freedoms against old privileges. Civil liberties are the fruit of the struggles of parliaments against absolute rulers, religious freedom is the result of the wars of religion, political and social freedom emerged with the rise of the labour movement, and so on. Precise claims arise, in fact, only when specific needs arise, in correspondence with the changes in society.

In this perspective, early human rights proclamations such as the Virginia Declaration of Rights of 1776, the French Déclaration des droits de l’ homme et du citoyen of 1789, or the United States Bill of Rights, adopted in the same year, had the aim of limiting the power of the sovereign over its citizens. Similarly, the fundamental rights enshrined in the constitutions of many modern states are primarily concerned with the vertical relationship between individuals and public institutions, and seek to safeguard the former against arbitrary coercion and interference by the latter. However, over the last few decades, it has become widely accepted that human and fundamental rights also matter in the horizontal relations between private parties, since the interests protected by those rights may be threatened not just by public authorities, but likewise by private actors.

These observations also apply to the European Convention on Human Rights (ECHR or Convention). When the Convention was draft ed in 1949/50, it was meant to be a response to the atrocities committed by totalitarian states during the first half of the 20th century. Almost 30 years later, the European Court of Human Rights (ECtHR) developed, in Marckx v. Belgium – a historic case concerning family as well as succession law – the notion of ‘positive obligations’, which paved the way for the application of the ECHR in private law disputes. According to the Court, the Contracting States are not only under a negative duty to abstain from direct interference with the rights and freedoms guaranteed under the Convention: they may be equally obliged, depending on the circumstances, to adopt active measures to secure the relevant rights and to prevent other individuals from interfering with those rights.