Zastrzeżenia do Europejskiej Konwencji o Ochronie Praw Człowieka i Podstawowych Wolności

The first part of this article presents Article 57 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and other reservation clauses (in protocols to the Convention) and discusses the characteristics of a system of reservations established by the ECHR and its Protocols. The second and third part analyse and critically appraise states’ practice concerning the formulation of reservations, and objections to other states’ reservations/declarations. The latter were formulated only in respect to some reservations formulated to the Protocol No. 1 to the ECHR. Before concluding with a general assessment of how this system works and what was its impact on other treaty regimes and on the general discussion on reservations to treaties, the role of the European Court of Human Rights (and the Commission before the entry into force of the Protocol No. 11) in the context of reservations is also discussed.

The Political Conception of Human Rights and Its Rule(s) of Recognition

The political conception makes sense of human rights strictly in light of their role in international human rights practice, more specifically by describing how they justify interventions against states that engage in or fail to prevent human rights violations. This conception is, therefore, normative and fact-dependent. Beyond this, it does not seem to have much to say about the actual nature of international human rights practice. The argument sustained here reinterprets the political conception by resorting to a heuristic device that explains how normativity can be fact-dependent: the Hartian model. The characteristics of H.L.A. Hart’s rule of recognition are useful to determine the characteristics of human rights practice from the viewpoint of the political conception. Also, they help to overcome some of the problems typically faced by the political conception, such as whether there is only one practice or many, whether the notion of human rights becomes too contingent on the way the world is currently organised, how agents can violate content-changing practices, or how reliance on current states of affairs leaves room for criticism of those states of affairs.