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CYIL 7 ȍ2016Ȏ INTERNATIONAL HUMANRIGHTS OBLIGATIONS OF POSTǧCOMMUNIST COUNTRIES
be careful, because too extensive interpretation of human rights treaties may lead
to the “political” steps of states that I criticized above.5 I also think there are three
major concerns that the courts (and especially, the international ones) have to beware
of in terms of interpreting international human rights treaties: (1) the implication
of further rights in those expressed in a treaty; (2) development of wider and wider
positive obligations; and (3) the narrowing of the margin of appreciation permitted
to the states. As Lady Hale, justice of the UK Supreme Court, noted in relation to
the European Convention on Human Rights: “The key element, it seems to me, is that
the development should be a predictable one…It should reflect the common European
understanding, however that may be deduced. And it should seek to strike a fair balance,
between the universal values of freedom and equality embodied in the Convention, and
the particular choices made by the democratically elected Parliaments of the member
states.”6 This is easy to say and hard to do, but the (international) court ought to
attempt to reach proportionality between the contradicting interests that Lady Hale
mentions. Failure to do so may lead to disproportionate outcomes.
2. The specifics of negotiation and ratification of human rights treaties
The second part of the book describes the actual process of negotiating and
ratifying an international human rights treaty. Its authors provide the reader with an
exclusive insight from both Czech and Slovak perspectives.
But at this point, I must add a little bit of criticism. It seems that relevant Czech
practice totally leaves out the “Bankruptcy judgement” of the Czech Constitutional
Court,7 which is later extensively analyzed in other parts of the reviewed book.
This judgment basically says the international human rights treaties form a part of
our constitution. The author of the Czech chapter specifies that in the practice of
conclusion and domestic approval of these treaties, the notion of international human
rights treaties has no relevance (p. 66). Really? One would assume that the government
takes special account of the fact that ratification of a human rights treaty may lead to
a constitutional amendment. But judging from what the chapter says on conclusion
and internal approval of human rights treaty by the Czech Republic, this is probably
not the case.
In relation to this, one thought crossed my mind several times. In order to
change the constitution (or transfer a constitutional power to an international
organization), a constitutional amendment needs to be approved by two-thirds of
all members of the House of Deputies, and two-thirds of present members of the
5 Add to that the British threats to leave the European Convention on Human Rights and, to a certain
extent, even the fresh Brexit.
6 Davies, Anita. Lady Hale: Beanstalk or living instrument, how tall can the ECHR grow? [online]. UKSC
blog, 17 June 2011. Available at:
tall-can-the-echr-grow/.
7 Judgment of the Constitutional Court no. Pl. ÚS 36/01, 25. 7. 2002.