“Federal” Aspects of the European Convention on Human Rights

The inquiry pursued in this paper has been prompted by a paradox. In the United States, the Supreme Court has been reluctant to find any constitutional limitations upon the power of the States to allow the administration of corporal punishment in schools, despite being able to rely on the national Bill of Rights – in the interpretation of which the Court has many times circumscribed the power of the State governments in other contexts. The result has been that some children have been left without redress when they have been subjected to exceptionally severe punishment. Under the system of the European Convention on Human Rights, recent judgments of the European Court of Human Rights and decisions of the Commission have all but outlawed corporal punishment of schoolchildren. The United Kingdom, the defendant State principally involved in these cases, has recently legislated to make the infliction of the penalty unlawful in State schools. The European institutions have reached this intrusive conclusion relying on an international treaty, which has no direct force of its own within the national legal system and which is a very new regime. The American cases seem to show a remarkable solicitude for state autonomy.