The European Convention on Human Rights: The Wider Implications

The European Convention on Human Rights: The Wider Implications

The European Convention on Human Rights has seen vast changes to the legal framework of countries across Europe.  By imposing fundamental freedoms and liberties in an indefeasible form, it has created a host of legal problems and issues for courts to tackle in an attempt to improve human rights.  Distinct from the US, which already retains fundamental freedoms through its definitive constitution, much of Europe in particular the UK doesn't have the same codified provisions for its citizens.  This has now been revolutionised by the ratification of the European Convention (ECHR), which sets out certain primary standards that must be attained in relation to each individual citizen.  In this article, we will look at the advantages of the ECHR, and the wide-ranging impact it has had on the various constitutions around Europe.

The European Convention on Human Rights was established as an international treaty to afford a uniform standard of human rights treatment across Europe.  Covering basic freedoms like the right to life through to trickier issues such as the right to liberty and the right to marry, ECHR has had an astonishing impact on Europe both legally and politically.  In passing legislation, European governments have to as a matter of law legislate in accordance with the provisions contained within the ECHR.  This means parliaments of signatory countries are being bound by their predecessors to legislate in a particular way, which has ruled out a number of would-be pledges and meant the reversal of certain national laws.

One area where this has caused problems is in abortion.  The perpetual morality debate aside, abortion has been held to contravene the right to life provision in certain European countries.  Although there is still great scope for challenge, this could potentially cause problems in the coming years as more and more cases of this nature are brought before the European court.  Another major problem area is that of same sex marriages.  The universal right to marry means that any provision stopping same sex marriage anywhere in Europe could potentially be struck down as illegal, requiring nations to actively realign their current provisions to avoid any discrimination.  For this reason, the UK, amongst others, have taken proactive measures to permit same-sex marriages to avoid the embarrassment of a public ruling against them.  This obviously raises problems of national power and freedom: nations are now utterly bound by the principles of European 'liberty', whether they like it or not.

Thankfully this social and legal upheaval is working towards a more liberty-orientated Europe.  It is certainly taking time, and given the fact that the ECHR is over half a century old, its impacts are becoming more and more apparent as time wears on and as courts are presented with modern challenges located within the context of the original ECHR provisions.  Additionally, the European Convention on Human Rights is being regularly updated and amended to provide a steadfast constitution for the citizen whilst retaining the flexibility to adapt to contemporary situations.  Although the ECHR and the provisions contained within it have met stiff opposition throughout their lifetime, most would now agree that the level of individual certainty provided by these fundamental freedoms is making for a better quality of life and reducing the scope for discrimination and prejudice across Europe.

The Fairness of Limited Liability

Limited liability is one of the most successful commercial creations of all time, almost singularly responsible for the growth and expansion of capitalism.  Encouraging risk and promoting successful enterprise through both small and large businesses alike, limited liability has been the driving force behind economic success in the Western world and is one of the most celebrated legal creations of all time.  But what is it about limited liability that makes it so successful?  Indeed, is the structure of limited liability fair as regards creditors, who ultimately bear the brunt of this mechanism?

Limited liability in general means a sacrifice of privacy in return for the benefit of limited personal liability.  In layman's terms, this means that the company promoter is not personally liable for any of the company's debts, thus encouraging risk and promoting enterprise.  For most small businesses, it is a lifeline, and without it the economy would level out and stifle with fewer new start-ups each year.  At the back end, however, these businesses leave behind a trail of debts that ultimately result in financial loss for lenders and those that operate on credit terms.  This raises the general question of whether limited liability as a creation is fair for the creditors it so apparently prejudices?

Limited liability has given life to companies across the world, by providing the reassurances necessary to entrepreneurs to take the risk, safe in the knowledge that personally speaking they should come out unscathed.  From this, more companies have grown and flourished, which has led to more jobs and better state welfare for virtually all capitalist economies.  The strength of this function has gone a long way towards building the great superpowers, and is seriously underestimated as a legal construct.

Limited liability leaves a gap in the pockets of those companies that lend money or offer their customers credit terms during the course of their business.  As a consequence of the promoter's ability to walk away with his hands clean, many businesses find the squeeze of bad debts too severe, and end up having to take on credit of their own to meet the shortcomings.  In theory, limited liability leaves creditors in a weak situation, with relatively limited powers to regain the full amount of any monies due.

In reality, limited liability doesn't operate in that way.  Of course, many businesses go under every year as their owners walk free of encumbrance, but generally speaking the economic world does not work between insolvent companies.  However, the flexibility allowed by limited liability has meant debt in a sense has become effective currency, and has helped businesses to survive during tough times, and to seek the financial help necessary without the appropriate risk.

Limited liability might be seen as slightly unfair at the razor's edge, but it works all round to ensure that everyone has access to credit and the benefits of limitation of damages when it is necessary.  Ultimately, it promotes a more competitive, lower-risk environment within which business can flourish and economies can grow and multiply, providing jobs and economic strength to nations embracing its basic form.  As legal fictions go, the limited company has undoubtedly prove itself to be one of the most popular ever created, and its growth looks set to continue as it is developed and refined across the world.