INTRODUCTION

The prohibition of abuse of rights in Article 17 ECHR is very much a product of its time. Before the second half of the 20th century, such a formula had not been recognised in any of the principal human rights texts. But the historical context in which the Convention came into being – just after the Second World War – was crucial for the creation of the abuse clause. This chapter explores what motivated the drafters to include Article 17 ECHR in the Convention. It will move through the different stages of the drafting of the Convention, from the first steps in creating a European human rights treaty by the European Movement in 1948 to the final signing of the Convention by the Member States of the Council of Europe in 1950. The drafting of the Convention, even though it took only roughly two years, was a complex and arduous process. This chapter will not elaborate at length on this process, but instead focuses on aspects of the drafting of the Convention that form the background of the prohibition of abuse of rights in Article 17 ECHR.

FIRST STEPS BY THE EUROPEAN MOVEMENT

The ECHR was developed during the turbulent first years following the Second World War. On the one hand, the atrocities committed by the Nazi regime had shaken up the international community and through international cooperation European democracies wanted to prevent such a tragedy from ever happening again. On the other hand, the immediate post-war period was dominated by rising tensions between ‘East’ and ‘West’ and the Soviet Union under Stalin was considered a severe and immediate threat to Western European democracies. In the midst of all of this, the first steps towards a European human rights convention were taken by the International Committee of the Movement of European Unity, or the ‘European Movement’.

During the first half of 1949 the European Movement started to prepare a draft European human rights convention. Set against the experience of totalitarianism during the Second World War, they attached great significance to democracy. They believed respect for human rights and a democratic form of government to go hand in hand. The Convention to be drafted would therefore embody Europe's ‘ardent belief in human rights and democracy’.