European Human Rights Law
The work of the European Court of Human Rights illustrated by an assortment of selected cases
©2014
Academic Paper
140 Pages
Summary
In Section One of the work a brief introduction to the topic illustrates the main purpose of the disquisition and exemplifies the fundamental questions.
The author emphasizes on the illustration of the International perspective of Fundamental Rights within Section Two, which is followed by an explication of the divergent legal sources and impacts of Human Rights Law; e.g.: the Charter of the United Nations, the European Bill of Rights and the European Convention on Human Rights.
The next part exemplifies the ECtHR`s case-law in respect of the most significant principles and methods of interpretation by offering well discussed and analyzed case studies. The case analyzes provide the important facts, the argumentation and the conclusion of the Court, furthermore, the author allocates the dissenting opinions, critical remarks and further correlations.
Within Section Four, the legal machinery and controlling mechanisms are discussed shortly. The International abandonment of violence against women is considered in Section Five, which elucidates the categories, facts and presence of physical and psychological violence against women and children, as well as the judicial approach to the given circumstances in the light of the ECHR.
The last section summarizes the results and closes with an illustration of possible future developments and perspectives of European Human Rights Law.
The author emphasizes on the illustration of the International perspective of Fundamental Rights within Section Two, which is followed by an explication of the divergent legal sources and impacts of Human Rights Law; e.g.: the Charter of the United Nations, the European Bill of Rights and the European Convention on Human Rights.
The next part exemplifies the ECtHR`s case-law in respect of the most significant principles and methods of interpretation by offering well discussed and analyzed case studies. The case analyzes provide the important facts, the argumentation and the conclusion of the Court, furthermore, the author allocates the dissenting opinions, critical remarks and further correlations.
Within Section Four, the legal machinery and controlling mechanisms are discussed shortly. The International abandonment of violence against women is considered in Section Five, which elucidates the categories, facts and presence of physical and psychological violence against women and children, as well as the judicial approach to the given circumstances in the light of the ECHR.
The last section summarizes the results and closes with an illustration of possible future developments and perspectives of European Human Rights Law.
Excerpt
Table Of Contents
1. The first significant measures towards an appropriate implementation of
Human Rights Law
36
2. The `Strasbourg machinery'
38
a. Excursus: The European Commission of Human Rights
40
3. The specific Convention Rights
40
a. The nature of the Convention rights
44
b. Interferences with fundamental rights
45
c. Jurisprudence, qualified rights and the margin of appreciation
46
d. A continuing revolution through the implementation of protocols
47
D. General aspects
47
1. Treaties as an instrument of Law
47
a. The ECHR as an international source of law
47
2. The international position of the ECHR
48
a. The ECHR and domestic law
48
Section Three:
51
I. General aspects of the jurisdiction of the ECtHR in regard of diversity
51
A. Excursus: The third party effect
51
1. The recognition of the third party effect through the case law of the ECtHR
52
a. Case of Airey v. Ireland in respect of the third party effect
52
II. The Courts' case-law in respect of significant principles and methods of interpretation
54
A. The Principle of Subsidiarity
54
1. The implementation and effects of the principle of Subsidiarity
54
a. Further effects of the principle of Subsidiarity
55
B. The Interpretation of the Convention
57
1. Methods developed and utilized by the European Court of Human Rights
57
a. The evolutive interpretation
58
aa. The application of the evolutive interpretation within the case law of the ECtHR 59
(1) The case of Rees v. the UK
59
(2) The case of Cossey v. the UK
61
(3) Judicial re-consideration of the former judgments:
62
The case of Christine Goodwin v. the UK
62
b. The margin of appreciation
64
aa. Theoretical aspects of the margin of appreciation
65
bb. Analyzes of the case law in respect of the margin of appreciation 65
(1) The case of the Sunday Times v. the UK in the light of Article 10 ECHR 66
)
The
facts
66
) Examination of a violation of Article 10 ECHR
66
) The argumentation of the ECtHR
67
) Conclusion
67
(2) The case of Handyside v. the UK regarding the freedom of speech
68
) The facts
68
) The argumentation offered by the different entities
69
) Conclusion and further consequences of the judgment
69
ee. The difficulties regarding the utilization of the margin of appreciation
71
(1) The case of Hirst v. the UK
71
) The facts
71
) The argumentation regarding a violation of Article 3 ECHR
72
) The significance of the dissenting opinions on the case
73
) Conclusion
73
ff. Criticism on the margin of appreciation through the Hatton-case
74
(1) The case of Hatton v. the UK
75
) The facts
75
) The argumentation of the ECtHR regarding a violation of Article 8 ECHR 75
) Conclusion and critical remarks
76
) Dissenting opinions
76
2. Excursus: An insight into further ECtHR related interpretation mechanisms
78
a. The autonomous interpretation
78
b.
The
comparative
interpretation
79
c.
Proportionality
80
aa. The four question test generated by the ECtHR
80
bb. Criticism towards the principle of Proportionality 80
C. Conclusive remarks
81
Section Four:
83
I. The legal machinery
83
A. The substantive power of the legal machinery regarding the Admissibility
83
1. The impact of implementing Protocol No. 11
83
2. The admissibility criteria
83
a. The criteria of exhaustion of all remedies
83
aa. The case of Earl Spencer v. the United Kingdom
83
bb. The case of X v. Iceland
84
3. Excursus: The scope of an application respectively acting exterritorial
85
B. controlling mechanism
87
1. Inter- State applications
87
2. Applications by individuals
87
Section Five:
91
I. International abandonment of violence against women
91
A. Report of the Council of Europe regarding violence against women
91
1. The facts
91
2. Definition, categories and the presence of violence against women 92
3. Cases concerning violence against women
95
a. Violation of Article 3 of the ECHR
95
b. Violation of Article 8 of the ECHR
95
c. Violation of Article 3 ECHR and Article 8 ECHR
97
II. Excursus: Cases concerning the private life of women
99
A. General questions in respect of the right to life
99
1. The protection of life versus the right to private life
100
2. Protection of Life During Pregnancy Act 2013
101
Section Six:
103
I.
Closing
remarks
103
II. Appendix 105
A. The Universal Declaration of Human Rights
105
B. The Charter of the United Nations
106
C. The Statutes of the International Court of Justice
107
D. Convention for the Protection of Human Rights and Fundamental Freedoms
108
E. Protocol No. 11
124
F.
Protocol
No.
14
126
G. Protocol No. 15
132
H. Protocol No. 16
134
Bibliography 137
Table of cases
140
13
List of abbreviations
CEDAW - Convention on the Elimination of all Forms of Discrimination against Women
ECHR - European Convention on Human Rights
ECtHR - European Court on Human Rights
EEC - European Economic Community
EG - Europäische Gemeinschaft
EU - Europäische Union
ICCPR - International Covenant on Civil and Political Rights
ICESCR - International Covenant on Economic, Social and Cultural Rights
ICJ - International Court of Justice
NGO - Non Governmental Organization
OAS - Organization of American States
PCC - Press Complaints Committee
PCIJ - Permanent Court of International Justice
TEU - Treaty on European Union
TFEU - Treaty on the Functioning of the European Union
UDHR - Universal Declaration of Human Rights
UN - United Nations
15
Preface
December 1948 is a remarkable date in the history of human rights law. It was the birth of Human
Rights Law. Without exception, human rights belong to every single human being. The eighth
secretary General Ban Ki-moon clearly found an adequate description to illustrate the significance
of human rights while giving a speech at the 2011 Human Rights Day. Besides the significance of
their existence he focused on their constant development and practicable usage which requires all
the nations to exercise human rights. His speech can be put in one significant sentence. "But unless
we know them, unless we demand they be respected, and unless we defend our right -- and the right
of others -- to exercise them, they will be just words in a decades-old document."
1
So this led to a
few questions:
Now, as we happen to have Human Rights Law in Europe what are the consequences regarding the
jurisprudence and the legal practice in general? Further on, what are the judicial consequences in
respect of violence against women?
How about the acquaintance within European courts especially the European Court of Human
Rights Law? Did it remain the same or are remarkable changes and developments observable?
Did the development in Europe force `us' to accommodate the understanding and meaning of what
was once essential but in a completely different way?
The main focus within this work basis on the case-law of the ECtHR in order to reveal the process,
development, changes and reasonings of the Court, specifically in respect of the application of the
principles of interpretation. The case analyze will cover general state of affairs, e.g.: environmental
issues, gender based circumstances, press related matters, physical and psychological violence in
general, etc. Moreover, regarding violence, a few cases in Section Five shall illustrate the judicial
approach relating to violence against women in specific; especially, since the latest violent incidents
in 2013, for example in India South-America but also in Eastern Europe, revealed that violence
against women is a disastrous, unsolved and widespread matter.
1
http://www.un.org/en/events/humanrightsday/2011/sg.shtml
, retrieved 20.09.2012.
17
Section One:
I. Introduction: the case of RTBF
As mentioned in the preface, the main purpose of this paper is to analyze how the ECtHR works,
judges and which difficulties might appear. In order to understand the judgments and the legal
machinery in Strasbourg, I want to start with a case; the RTBF-case. For example, one of the
leading questions is, how did Human Rights Law affect the national and international jurisdiction?
It becomes clear by the following example; the national courts have to consider the principles and
fundamental rights, which are provided by the ECHR. On the one hand, the ECtHR investigates if
the acts of the national authorities are in accordance with those principles, and, on the other hand, it
examines if any interference with the fundamental rights, as we experienced in the first case, could
be justifiable or not. To sum up, the ECtHR analyzes if a national judgment is legitimate or not in
respect of human rights law. Of course, the ECtHR had to find its way to offer well considered
judgments regarding the arguments and methods; consequently, I like to offer an insight by reveal-
ing the work in form of analyzing specific chosen cases.
We habitually consume information on a daily basis. Newspapers, television, internet, radio and
other knowledge intercessional media offer all sorts of information. However, it forces the question
if there are any boundaries within sharing and publishing information. To be more specific, the
question is whether there should be set a boundary to restrict and control individuals, companies
and groups of individuals or not. For example, in one case the European Court decided on an
application from the RTBF in which the public broadcasting company of the French Community in
Belgium alleged a violation of the freedom of expression
2
. As to the facts: the company broadcasts
a program which is dealing with judicial matters. Part of their reveals contained concerns regarding
medical risks and similar topics. Therefore they brought up an example. The company showed
complaints by patients about their treatment and doctors. It should be noted that these issues have
been reported before within the newspapers (printed media). The accused doctor submitted the case
to the Court. After this reaction the responsible judge granted an interim injunction, preventing the
company from broadcasting this program, until a decision has been made on the merits. Decisions
have not been made by the time the case had been lodged with the European Court. The focus was
laid on the interim injunction. First, RTBF alleged to be violated in their right of access to a Court
by exhibiting Article 6 of the Convention. The Court of Cassation did not consider the fact that the
claimant did bring up the possible violation of Article 10 of the Convention. The legal basis needed
2
e.g.:
http://echr.coe.int/NR/rdonlyres/C3804E16-817B-46D5-A51F-
0AC1A8E0FB8D/0/DG2ENHRHAND022004.pdf
, retrieved 17.12.2012.
18
to be questioned, because the constitution of Belgium authorizes the punishment of offending
medial behavior in practicing the freedom of expression. But the main point is that it is only
punished after it has been committed. Hence, the Court tried to figure out whether there is a clear,
specific and certain legal base within the Civil Code or not. Such an intervention cannot suffer from
a leaking judicial base, because it would mean that the conviction is an act of preventive judicial
activism which obviously would not stand any further investigation. The Court found that the
company was unable to foresee the consequences, because it simply was not clear enough.
3
For
example there has not been any case- law by that time, so how should RTBF possibly know the
precise regulation of the law? This leads to the conclusion that it simply is preventive. This convic-
tion probably would keep many people in a safe position, just because they are aware of criticism in
the media. Well, we could say that the content deals with an announcement to clarify the judicial
handling in advance. But can this be the judicial acquaintance with such matters? During the further
procedure the Belgian judge declared that there is a difference between print media and non print
media. This unreasonable distinction has been implied by not investigating print media provider,
which revealed such problematic matters several times before but judging non print media in the
same field of disclosures. The Court analyzed the handling and found that there is no such legal
framework, which offers the requiring base to distinguish between the two media sectors. In
conclusion the Court found the Belgian State guilty for prohibiting in such a way without legal base
or specific terms in the case-law by violating Article 10 of the Convention. They did not find any
judicial prove for allowing such a kind of censorship. And to mention again, it seemed to involve a
prior prohibition. The Constitution, combined with the Civil Code, does not offer the required
fundamentals to legitimate the judgement. Therefore it is not possible for any individual to evaluate
whether the content of their work is `legally covered' or not. Hence, the Court revealed a violation
of Article 6 ECHR as well.
4
3
RTBF v. Belgium , judgment of 29.3.2011, ECHR.
4
RTBF v. Belgium , judgment of 29.3.2011, ECHR.
19
Section Two:
I. The significance of Universal Human Rights Law
Before I start with the analyzes of the case-law of the ECtHR, it is unavoidable to have an overview
regarding Human Rights Law in general, important organizations and institutions as well as
significant mechanisms within the international and european sphere. Therefore, I will begin with
an introduction to the functioning and impact of International Organizations, the United Nations
and the European Union.
There is not a particular event or a single date to enumerate. It took its time to establish Human
Rights. Therefore to mention one of the more important and obvious events which influenced the
European movement drastically. For example, the United Nations General Assembly, now includ-
ing 193 members, held its first session in 1946.
5
In 1948 the Universal Declaration of Human
Rights (Res 217 A III) entered into force.
6
The competence is widespread in consideration of
`ratione materiae'. Its practical purpose is to define recommendations and initiate field studies in
reference to Human Rights questions. More specifically spoken, the Charter contains political,
social, civil as well as economic and cultural rights. The legislative structure, work and progress
stretches itself throughout the decades. The main matter is allegorized through legally non-binding
statements, manifested in Article 10 and 13 of the Charter of the United Nations where it says
`...and assisting in the realization of human rights and fundamental freedoms...'.
7
Resolutions are not enforceable by law, which logically leads to the questionable fact that some
rights are well accepted and some vary depending on the concrete legal system of the Member
State. The limitation caused by national politics and legal structure is quite delicate. Regarding the
implementation of international Covenants it is precarious. De jure the essential function needs to
be seen in the advisory and monitoring role of the UN. For example, during Gulf war II and III, the
Security Council of the United Nations `legislated' Resolution 660. This resolution basically
condemned the invasions of the Iraq and announced immediate withdrawal, combined with under-
taking international negotiation.
8
To put it into one phrase, the Council tried to build international
peace and security. It could be spoken of an international mediator who claims communication,
emphasis on peace keeping work and the practice of Human Rights law.
5
e.g.: Peterson M. J., The United Nations General Assembly (2006).
6
e.g.: Johnson M. G./Symonides J., The Universal Declaration of Human Rights: A history of its creations
and implementation 1948 - 1998 (1998).
7
The United Nations Department of Public Information, The United Nations and Human Rights 1945 - 1995
Volume VII (1995), p. 143.
8
S/Res/660 (1990).
20
II. Human Rights Law on appropriate scales
A. International perspective of Fundamental Rights
1. An international mechanism
Human Rights do concern all of mankind, therefore, they are best protected on an international
scale. As the main focus of this work lays on the ECHR, the detailed abstract concept of the
international Law is shortened. A significant number of International Organizations grew within the
last decades, not only IGO's, but also the amount of NGO's fluctuated surprisingly after
World War II, the later break down of the Soviet Union and the end of the Cold War. The influence
was enormously triggered by uncertainty, the experience of War, deprivation, depression, misery.
On the ground that both, International Organizations and States, are mentioned in this study, I want
to offer a short insight regarding the legal status and differences of the two of them, hence a better
understanding of their legal acts is guaranteed.
a. International Organizations and International Law
International Law constitutes International Organizations as independent actors whilst States could
be named as their founding-fathers at the same moment as being their members. Independence has
to be understood in the sense of being constituted as a corporate person comparable with national
commercial law. This leads to the fact that IGO's can allege violations, but also can be accused of
violating any law, furthermore, they have a legal basis, which means that IGO's do have to comply
with the rights, are addressees of obligations, but also of specific rights. To put this into one
sentence `Inter-State organizations are legally independent to their founders. Some of this inde-
pendence is written into the treaties that establish them, and some of it arises by implication.'
9
Regarding independence, the Courts are constituted on this thought, meaning their power to judge
as well as the argumentation leading to the judgments has to be seen separate from the Member
States and from the individuals. The founders of International Organizations simultaneously can act
as their members. This fact is of great significance regarding profound political and economic
interests. Additionally, a State can easily refuse a Membership of an IGO, due to its sovereignty. If
a State does refuse the Membership, the international Law, which is set by the IGO, is not binding.
Firstly States can refuse a Membership en bloc, secondly States can consent to be a member of an
IGO with reservations. The latter leads to the effect that specific conditions stipulated are legally
non-binding. International Law rests on a consensus, so it could be said that it is coordinating the
9
http://www.journal-iostudies.org/sites/journal-iostudies.org/files/JIOSfinal_3_1.pdf
, retrieved 31.08.2013.
21
international relations and guarantees a harmonic functioning. None the less, because of the absence
of a supreme authority within international law, the distinction between national law and interna-
tional law has its impact; consequently specific parts and legal acts of the international law are quite
often classified as soft law, which is highly controversial by the reason that a sharp distinction has
to be made on the ground that not the entire acts are soft law in this sense.
10
aa. Excursus: Conditions according to the principles of Law: IGO
s and States
The United Nations, for example, is a generally accepted International Organization with the
legitimation of acting in legal matters. If both, States and International Organizations, are in charge
of establishing legal basis - are they the same? The Charter of the UN manifests their ability to set
recommendations but a recommendation certainly is not the same as a national binding law. So, it is
not a legislation in terms of our national thoughts of legislation. The UN is allowed to provide
protection and intervention in cases they have the given power from the specific State which means
the UN is not allowed to launch a strike without permission. It is an
existing enforcement power
and a constricted area of acting in terms of an intervention. Again it reveals the slightly hidden
difference between States and International Organizations. Moreover, States do not need to be
founded. If the international accepted criteria - State territory, State authority and citizenship - are
fulfilled the consequence are e.g. unquestionable powers in legal matters. In contrast to that,
International Organizations need to be founded by States; logically they lack from those three
mentioned criteria above. The most effective impact is the legal issue as States have unquestionable
powers regarding their territory and their citizens. International Organizations, on the contrary, have
the power the members and founders assign them. That means the power is a derivative transferred
power. But another distinction has to be made regarding supranational and the intergovernmental
acting. Due to the fact that treaties are the most common instrument in order to achieve the targeted
anticipations it is necessary to distinguish the impact of a treaty. The European Union, as an
outcome of the former European Community, is endowed with supranational power, in fact, they
are constituted by international treaties but they are still an agreement between sovereign States.
The primary law manifests a kind of constitution due to the provision of a certain level of law and
democratic tools and therefore it is far more reaching and affecting. A legal act yields immediate
effect to its addresses. If specific legal acts are neglected or ignored by the members this simply
leads to sanctions e.g. penalties, law-suits, indemnity claims. On the other hand, the intergovern-
mental treaties, e.g. the treaties of the UN, do not state any kind of constitutional basis but set
binding rules for the peaceful functioning of the humankind in sense of a political, social, govern-
10
e.g.: Slomanson W.R., Fundamental Perspectives on International Law (2011).
22
mental, legal and economical matter. In contrary to the European Union, the UN is not allowed to
question the power of the contracting States and as a result of the sovereignty it can release recom-
mendations but no legally binding sanctions. This reveals that treaties have different impact
although, both are released by International Organizations. To put this into one phrase: States are
the founding-fathers of institutions and institutions among each other distinguish themselves
through the different kind of power given by States.
11
2. The United Nations
The United Nations as the follower of the League of Nations, currently has 193 Members and 2
permanent observing States.
1213
Established in 1945, when 50 countries met at the UN conference
to draw up the Charter of the UN. As mentioned before, after 1945 it became clear that human
rights needed to find a fixed and solid base. Human rights can resist cases of extremities only if they
are implemented in legally binding structures.
Boutros Boutros Ghali, former United Nations Secretary-General, put it that way when giving a
speech at the World Conference on Human Rights in Vienna in 1993 `When sovereignty becomes
the ultimate argument put forward by authoritarian regimes to support their undermining of the
rights and freedoms of men, women and children, such sovereignty- and I state this as a sober truth
- is already condemned by history.'
14
a. The Charter of the United Nations
The Charter regulates the relations between the Member States in certain fields; handling issues
with specific chosen instruments. At the time of founding the Charter after World War II, the main
goal was to guarantee equality, safety and security to act preventive against any riots which could
possibly lead to a war like situation. As the preamble of the Charter already manifested `We the
peoples of the United Nations determined to save succeeding generations from the scourge of war,
which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in funda-
mental rights, in the dignity and worth of the human being, in the equal rights of men and women
11
Jordan R.S., International Organizations: A Comparative Approach to the Management of Cooperation
(2001).
12
http://www.un.org/en/documents/charter/
, retrieved 21.07.2013.
http://www.un.org/en/
, retrieved 26.07.2013.
13
Observing State: The UN guarantee those two States ( Holy See and the State of Palestine) e.g. the right
to participate, observe, sign on resolutions, submit amendments and drafts. But there do not exist voting
rights in terms of resolutions or other similar issues.
14
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G93/142/39/PDF/G9314239.pdf?OpenElement
http://ap.ohchr.org/documents/alldocs.aspx?doc_id=5820
, retrieved 21.07.2013.
23
and of nations large and small, and to establish conditions under which justice and respect for the
obligations arising from treaties and other sources of international law can be maintained, and to
promote social progress and better standards of life in larger freedoms,...'.
15
Adopted by the General Assembly in 1948
16
, it represents the first globally developed document of
fundamental rights by which the entire humankind inherently is legally covered. It has been
described as a constituting device, pointing out the set obligations amongst the members and the
UN agreed rights regarding legal instruments, sanctions and recommendations, jointly chosen aims
in terms of e.g. social, environmental, educational, humanitarian, economical and legal matters.
Furthermore, the Charter contains the principles of international interaction intent on the sovereign-
ty of each State, therefore obviously coping with the idea of equality and the fact that the UN is not
setting any violating actions, as long as they are against the intent aims.
17
aa. The purposes and principles of the Charter
The purposes and fundamental issues of the Charter can be split into the following groups:
The Charter organizes the cooperation in problematic situations between States regarding humani-
tarian, economic, social and fundamental rights matters.
In addition, the Charter has the purpose to offer an adequate mediation in situations of conflicts;
further on, the organs act as a harmonizer of actions between the Nations.
18
An other purpose of the Charter is to be a developer for international relations in the sense of
promoting equality.
Besides that, the UN functions as a `Human Rights Watch' and as a peacekeeper.
19
15
in Appendix.
16
Adopted by a vote of 8 abstentions, 0 votes against it and 48 in favor. The Soviet Union, Saudi Arabia,
Ukrainian SSR, Byelorussian SSR, People's Federal Republic of Yugoslavia, People's Republic of Poland,
South Africa and Czechoslovakia. Reasons for the abstentions quod vide in The United Nations Department
of Public Information, The United Nations and Human Rights 1945 - 1995 Volume VII (1995).
17
e.g.: Jayawickrama N., The Judical Application of Human Rights Law (2002), p.25 and p.130.
18
A/Res/62/228 (2007).
19
Criticism was brought up by several authors regarding the question whether or not the UN offers a
sufficient peacekeeping:
Maurice B., The UN as an Organization. A Critique of its Functioning in M. Bertrand, D. Warner,
A New Charter for Worldwide Organization? (1995), p.359.
`To ensure real defence of democracy, human rights and peace, the establishment of an entirely new
worldwide organization is indispensable, the main features of which are easily identifiable. The need for
coordination at the global level should lead to the institutionalization of regular summit meetings between
representatives of the major countries and the diverse regions of the world. The development of democracy
should eventually emerge with regard to representation of people at the world level.'
24
Fundamental principles due to the Charter, for example, do contain amongst others:
The work of the UN has to be based on the principle of equality and sovereignty of each individual
Member. On the other hand, the Members are obliged to set their behavior according to the princi-
ples of the Charter. If international disputes are coming up, they have to be solved by peaceful
acting and intention in fact to endanger global peace. The acquired actions should be based on
global justice, security and faith and besides, the Members are requested to assist the UN to
guarantee the promoted rights. As a result of sovereignty and the lacking supranationality of the
UN, it is not permitted to undermine a States position. Furthermore, the Charter itself does not
establish any kind of authorization whereupon the UN is allowed to set a intervention as long as it
concerns the national jurisdiction of a State.
20
The Charter is separated into 19 Chapters. Chapter I and II regulate the Membership and the
Purposes and Principles of the UN. Chapter III to IV concentrate on the Organs of the UN.
Chapter V describes the requirements of the Security Council. Chapter VI to XIII manifests
specific obligations like the determination of disputes, actions with respect to threats to the peace,
breaches of the peace and acts of aggression. Furthermore, the Security Council shall define and set
up the required settlements. But also act regarding regional arrangements. As stability and well-
being are essential goods to guarantee peace International economic and social co-operation shall be
stimulated. Economic, health, cultural, environmental, educational problems shall be investigated
and solutions shall be implemented. Higher standards of living, full employment, social progress
and the conditions shall be promoted as Chapter IX and X proclaim. Chapter XI to XIII reveal the
trusteeship system and the Council which is in charge. In Chapter XIV the International Court of
Justice finds its legal basis. Chapter XV reveals the duties of the Secretariat. Chapter XVI focus on
the ratification and signature, transnational security arrangements, amendments and provisions.
b. Registered and commissioned institutions of the United Nations
According to Article 7 of the Charter, the UN is obligatorily composed of six organs. The General
Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the
International Court of Justice and the Secretariat. If it is to be found necessary, subsidiary organs
can be established, as long as it does not undermine the rules and principles of the present Charter.
21
20
e.g.: Basic facts about the United Nations (2004), p.11.
21
e.g.: Jayawickrama N., The Judical Application of Human Rights Law (2002).
25
c. The Universal Declaration of Human Rights Law
aa. General perspectives
The first draft fragmented the Charter of the UN into three parts: The Declaration, A Covenant on
human rights and measures regarding the implementation. Adopted in 1948, it entered into force as
a Declaration which leads to the effect that it is not binding but through the decades it appeared to
approach almost the same effect as legally binding instruments because it impacted constitutions
and the development of civil society regarding the knowledge about human rights and their im-
portance. Several national constitutions reference to the UDHR or they omit a reference and contain
parts of the UDHR directly in their constitutions. Although it is not legally binding, it defines and
describes issues which are manifested in the UN Charter and therefore binding for the members. It
sought to guarantee the general provisions of the UN and, furthermore, achieve the needed courtesy
to become common standard. As result the UDHR is mediate legally binding. John P. Humphrey
classifies the UDHR as an instrument to achieve an authentic interpretation of the United Nations
Charter. Mostly based on the Namibia Case where the ICJ clarified `...restrictions, and limitations
exclusively based on grounds of race, color, descent, or national or ethnic origin which constitute a
denial of fundamental human right is a flagrant violation of the purposes and the principles of the
Charter.'
22
Other methods of interpretation are thinkable e.g. the UDHR provides the utilized instruments in
order to undertake an UN conform interpretation if it comes to issues which were left undefined
within the Charter, furthermore, the UDHR. The UDHR did not only affect national constitutions
and the work of the UN but also the ICJ referenced the UDHR within its judicial decisions.
23
As mentioned before, the Namibia-case, the South West Africa-cases
24
, where the responsible
judge clarified that although the UDHR is legally non-binding it constitutes defaults of the interpre-
22
S/Res/276 (1970).
23
e.g.: Jayawickrama N., The Judical Application of Human Rights Law (2002), p.26.
Further reading for the first draftings in Yearbook on Human Rights for 1947,
(New York: United Nations, 1949).
24
South-West Africa Cases, judgment of 18.07.1966, ICJ.
Namibia, the former South-West-Africa, has been declared a League of Nations Mandate territory after being
captured by Germany. The essential principles of the Mandates System consisted in the recognition of
specific rights for the inhabitants of underdeveloped territories. An advanced Nation was declared as the
`Mandatory'. The Union of South Africa has been in charge of the administrative responsibilities. After World
War II, the Mandate was considered to become a United Nations Trust Territory, in order to be under UN
control, which has been refused by the Union of South Africa. Furthermore, it refused the transition to
independence of the territories. The ICJ ruled that there was no obligation for converting South-West Africa
into a UN trust territory, but that the bondage based on the League of Nations Mandate was to be consid-
ered. The Court found that, the Mandate in question had become extinct because of the dissolution of the
League of Nations but the obligation to perform compulsory jurisdiction of the Court was transferred and
therefore still intact. Logically, they had been subject to the obligations and entitled provisions, under the
Charter of the UN. The Respondent bound itself when ratifying the Charter while both, the League of Nations
and the Permanent Court were still in existence.
26
tation and therefore leads to be customary law, within the Nottebohm-case it has been referred to
Article 15 (1) where it says that everybody has the right of nationality and because of the immediate
referring it could be seen as a basic principle.
25
The Teheran Hostages-case dealt with a human
rights violation because of wrongful behavior in terms of depriving human beings from freedoms
and subjugate them to physical and psychological restraint. This treatment of the government was
seen as an immediate violation of the principles of the Charter as well as of the UDHR and its basic
principles and fundamental rights and freedoms.
26
The Filartiga v. Pena-Irala Case decided that torture is now officially prohibited by the law of
Nations. The Court did not only refer to the Charter but also noted that the prohibition of such
inhuman and cruel acts is guaranteed through other particular treaties and States verify the prohibi-
tion by their national constitutions.
27
25
Nottebohm Case, judgment of 06.04.1955, ICJ.
This case had been brought to the Court by Liechtenstein against the Republic of Guatemala. Liechtenstein
claimed that the Government of Guatemala acted against the international rules of law. Guatemala alleged
several reasons against the accusations, the most significant reason was that the claim was inadmissible on
the ground related to Nottebohms' nationality. At the time of the dispute, he was a German national, when he
applied for naturalization in Liechtenstein while having his fixed abode in Guatemala. Based on the Liechten-
stein Law of 4th Janary 1934 several necessary conditions were laid down in order to achieve the Liechten-
stein nationality. The Court dealt with the question, whether or not, the naturalization had to be internationally
recognized. Each State decides within its domestic jurisdiction, which is settled by its legislation, the rules
relating to nationality. The Court held that specific facts, which are divergent from case to case have to be
considered as well, although States are in charge of setting binding rules relating to nationality. Therefore,
the claim was seen inadmissible by the ICJ, on the grounds of a lacking bondage between Nottebohm and
Liechtenstein. Further on, the ICJ stated that this was not inconsistent with the international law because no
State can claim that the regulations which were formulated by themselves were entitled to be recognized by
an other State, unless the concerned State acted in conformity with the general rules and aims.
26
Case concerning United States diplomatic and consular staff in Tehran, judgment of 24.05.1980, ICJ.
This case had been brought in by the United States of America against Iran because of a seizure of
diplomatic offices and staff Members by militant revolutionaries of Iran. The Court stated that Iran violated
their obligations to the United States, thus neglected the obliged responsibilities which led to an unlawful
detention. Consequently, Iran immediately was requested to release American nationals, who were held as
hostages and entrust them to the protecting power due to the Vienna Convention on Diplomatic Relations.
Furthermore, the Court clearly forbid the Iranian Government to subject consular and/or diplomatic staff of
the United States regarding judicial proceedings. Additionally, the Court explicitly prohibited them being
forced to participate in any form, e.g. as witnesses. The ICJ pronounced that Iran had to make reparation for
the caused injuries.
27
Filartiga v. Pena-Irala, judgment of 06.06.1980, ICJ.
The plaintiffs son was tortured and murdered by Pena-Irala, who was Inspector General of Police by that
time. All of them were citizens of Paraguay. Filartiga brought the case to the Trial Court which dismissed the
claim. The accused party moved to the United States with a visitor visa. In the US, the sister of the murdered
person caused the deportation and conviction for the wrongful death of Filartiga. The Court of Appeal had to
decide whether or not the law of nations had to be applied. In specific, the Alien Tort Statute says, that the
district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in
violation of the law of nations or a treaty of the United States. The Court declared, that the conduct alleged
violated the law of nations. This was to say that, any act, which is committed by state officials against an
other individual held in detention clearly violates internationally recognized human rights law, therefore the
law of nations. The Court had to interpret the law nowadays as it had evolved within civilized nations, hence
the United Nations Charter made it obvious that the treatment and behavior towards its own citizens had to
be a matter of international concern.
27
bb. The Fundamental Freedoms and Human Rights of the Declaration
The Declaration contents e.g. the following fundamental freedoms and human rights:
Article 3 contains the right to life, liberty and security of persons. The freedom of slavery or
servitude is guaranteed within Article 4. Article 5 prohibits torture, cruel or degrading treatment or
punishment. The right to equality before the law and equal protection before the law is ensured
through Article 6 of the Declaration, further, Article 10 requires a fair trial and hearing if it comes
to accusations in form of any criminal charges against an individual. Article 12 forbids any arbitrary
interferences regarding a person's privacy, home or family as well as correspondence. The right to
seek and to enjoy asylum is guaranteed within Article 14. Trough Article 18 the right to freedom of
thought, conscience and religion is ensured. Furthermore, the Declaration requires the right to a
social and international order in which the rights and freedoms recognized in the declaration can be
fully realized. Article 29 orders that `the exercise of his rights and freedoms, everyone shall be
subject only to such limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the just requirements
of morality, public order and the general welfare in a democratic society.'
28
B. The European perspective of Human Rights Law
1. The European Union
a. Motives regarding the founding of the European Communities
Europe was ruled by anger, fear, poverty and, therefore, suspiciousness. As the Nazi-regime
demonstrated legal structure can be undermined. Facilitation of democratic stability in Europe
should be reached by establishing a wide-spread legal mandatory work.
29
`The first alternative was
to try to create Europe by means of a more or less intricate and complicated system of agreements
and conventions. These could be given some cohesion by a kind of overall pact, defining general
aims and attempting to harmonize them in detail. The second alternative was to create an organized
Europe with a structure similar to that of a state with mandatory powers, leading eventually to a
confederation or, better, a federation of Europe.'
30
Economic, social and political cooperation was
crucial in order to establish a specific commonality amongst the states, hence the permanent
competition which was a major factor in many outbreaks of wars. The European Communities, as
28
Universal Declaration of Human Rights
29
e.g.: Kesselman et al., European Politics in Transition (2005).
30
Lipgens W., Loth W., Documents on the History of European Integration, volume 3 `The struggle for
European Union by political Parties and Pressure Groups in Western Countries 1945 - 1950, p. 103.
28
well as the UN and the Council of Europe, were established based on the thought of cooperation
and integration.
31
aa. Excursus: The terms `European Communities' and `European Union'
It needs to be mentioned that these two terms strictly have to be distinguished in order to avoid
misunderstandings. The establishment of the Maastricht Treaty, also known as the Treaty on the
European Union brought in the term `European Union`.
32
The Maastricht Treaty describes the fields
of cooperation, the extension by the Members, additional policies, etc. Only when the Treaty of
Lisbon entered into force in 2009, it became definite that the European Union is known exactly as
Union. This fact was not always evident, based on the ground that the origin of the Union was
considered as different. The Treaty on the European Union established three original communities;
the European Coal and Steel Community, the European Economic Community and the European
Atomic Energy Community. These three were brought together under the `pillar`, and consequently,
the Treaty was renamed as the European Community Treaty. By the Treaty of Lisbon the `pillar-
structure' was broken up and it replaced the term `Community' by the term `Union', which now
only refers to the European Union.
33
b. The legal impact of the European Community on Fundamental Rights
The urgent need of the protection of fundamental rights became distinct and visible when the
development of the European Community brought up new effects regarding the dimensions of their
operating system. The European Community not only manifests international law, but also constitu-
tional law for the contracting States. The consequence of the legal power of the European Commu-
nity has to be considered as an enormous impact for the individuals of the Member States. Con-
firmed by the ECJ, this led to a new legal order, regulating the Member States as well as
individuals.
34
The problematic of the newly established legal order, the impact on the European
Courts as well as the judicial solutions regarding these matters can be best demonstrated by the
following cases.
31
e.g.: Foster Nigel, EU Law - Directions (2010).
32
The Maastricht Treaty entered into force in 1993.
33
Foster Nigel, EU Law - Directions (2010), p.5.
34
e.g. Foster Nigel, EU Law - Directions (2010).
29
aa. The case of the `Internationale Handelsgesellschaft von Einfuhr-Vorratsstelle
Getreide und Futtermittel'
Before the Solange I Beschluss of Germany, the ECJ addressed fundamental rights as a general
principle of law, which led to a protection through the European jurisdiction, when the ECJ had to
render the judgment of Internationale Handelsgesellschaft von Einfuhr-Vorratsstelle Getreide und
Futtermittel.
35
Therefore, it is important to illustrate the main arguments of the Court and the effect
of the decision.
As to the facts, regarding subparagraph three of Article 12 (1) of the Regulation No 120/67/EEC of
the Council on harmonizing the market in cereals the withdrawal of a license was conditional on
bailing a deposit. The license was determined on the lodging of a certain deposit. The said Regula-
tion No 120/67
36
, the system of deposits should guarantee a comprehensive understanding in terms
of controlling of the market trends. Furthermore, Article 9 of the Regulation No 473/67
37
only
grants a forfeiture of the deposit - regarding a ceased full utilization of the license - in case of `force
majeure'. The claimant questioned the validity of the regulation of deposits. Due to these facts two
questions in specific arose to the Court, first is it legal - regarding fundamental rights - to exclude a
forfeiture in general although Germany implemented the Regulation and second - the exclusion - if
it is not entirely effected during a valid export license? Certainly only in case of no provable fault of
the person concerned.
38
The Handelsgesellschaft did not exhaust the entire amount during the time of being in custody of
the valid license neither because of any `force majeure' nor any appreciably self-caused circum-
stances. The claimant alleged a violation of his fundamental national rights because of the exclusion
of the forfeiture in first place. Second, the deposit more specific its amount is excessive compared
to the trade margins. It could be said that the entire system of the deposit is questioned. But is a
fundamental right legally binding for the judgments if it concerns the European sphere? Summa-
rized it had to be clarified if fundamental rights, in specific the proportionality, are basis of the
judgments and if so, how did the Court argue. These questions emanated from the investigation of
the two policies questioned by the Verwaltungsgericht Frankfurt am Main. The system of the
deposits is not to be doubted because, otherwise, the commercial intercourse would suffer from a
precise control; this is indispensable for an intact import and export. The Member States and the
Community need to have entire knowledge to guarantee the function of the intercourse. To cite the
Courts argumentation. `[...]is essential to enable the competent authorities to make judicious use of
35
Case 11-70, judgment of 17.12.1970, ECR.
36
Regulation No. 120/67 of the Council of 13 June 1967, EEC.
37
Regulation No. 473/67 of the Commission of 21 August 1967, EEC.
38
Case 11-70, judgment of 17.12.1970, ECR.
30
the instruments of intervention, both ordinary and exceptional, which are at their disposal for
guaranteeing the functioning of the system of prices instituted by the regulation, such as purchasing,
storing and distributing, fixing denaturing premiums and export refunds, applying protective
measures and choosing measures intended to avoid deflections of trade.'
39
The fact that the system
of deposit could be excessive has definitely to be questioned because the burden the traders have to
face simply are an unavoidable consequence of such a regulation compared to the protected general
interests. Regarding the argumentation of `force majeure' cases, the Court declared it not dispropor-
tionate since the communality of traders receive adequate protection through this provision. More
likely, it has to reflect that `force majeure' cases are limited to unusual circumstances sourced
outside any possibility of controlling. Like the Court announced, `B
eyond such occurrences, for
which they cannot be held responsible, importers and exporters are
obliged to comply with the
provisions of the agricultural regulations and may not substitute for them considerations based upon
their own interests.
'
40
Obviously, the Court interpreted the regulation in a certain way, which led to the
fact that exceptions are strictly forbidden
; otherwise the sense of the regulation would cease to exist,
because the communality and not the individual interest should find protection. Another passage,
where this stringent argumentation could be found, is the following; `It therefore appears that by
limiting the cancellation of the undertaking to export and the release of the deposit to cases of force
majeure the Community legislature adopted a provision which, without imposing an undue burden
on importers or exporters, is appropriate for ensuring the normal functioning of the organization of
the market [...] `.
41
Clearly, it denies the violation of any rights within their argumentation, but besides that the solid
base for that issue has been established through that judgment. `The system of deposits, as it is
instituted by the provisions criticized, is contrary to the principle of proportionality which forms
part of the general principles of law, recognition of which is essential in the framework of any
structure based on respect for the law.'
42
Due to the implementation of the principle of proportional-
ity as a fundamental right the described situation would reveal a violation of fundamental rights
because they have to be considered while rendering judgments. The fundamental principles of
national systems form a kind of legal basis, for instance the respect of individuals but at that stage
of development the ECJ obviously manifested that the main point of view is a European one. This
means that the Court has to assess and evaluate the specific circumstances of a case through
`European eyes' and not solely through arguing with national, constitutional or not, principles.
`Although Community regulations are not German national laws, but legal rules pertaining to the
39
Case 11-70, judgment of 17.12.1970, ECR.
40
Case 11-70, judgment of 17.12.1970, ECR.
41
Case 11-70, judgment of 17.12.1970, ECR.
42
Case 11-70, judgment of the Court of 17.12.1970, ECR.
31
Community, they must respect the elementary, fundamental rights guaranteed by the German
Constitution and the essential structural principles of national law. In the event of contradiction with
those principles, the primacy of supranational law conflicts with the principles of the basic German
Law. [...] More particularly, the adverse effects of the system of deposits on the interests of trade
appear disproportionate to the objective targeted by the regulation, which is to ensure for the
competent authorities as precise and comprehensive a view as possible of market trends. It may be
in due proportion to the disclosed points of the Verwaltungsgericht, but still reduced to the essence
of the European thought, it has to decline the requested form of legal opinion. The validity of the
act of the Union institutions can only be judged in accordance with Union law, even if they collide
with national law.'
43
Finally, it should be noted that the ECJ rejects the course of argumentation, but is about to recon-
sider its policy.
44
bb. The `Solange I Beschluss' of the Federal Constitutional Court of Germany
As mentioned above, the legal development within Europe, which mainly has been caused by the
existence of the European Community and its competences, had a deep impact. The decisions the
European Community draws, are widespread regarding their impact and fundamental issues;
therefore, they need to be clarified on a European level in order to assure the coherence between the
European Community and the Member States. Consequently, it is important to understand what
specific difficulties arose within the changing legal situation.
45
For example, Germany demonstrated that specific issue in Solange I Beschluss. The Federal
Constitutional Court of Germany declared its authorization to explicitly scrutinize the compatibility
of European Law and German Law in case of any objections. `[...]denn die Gemeinschaft ist kein
Staat, insbesondere kein Bundesstaat, sondern "eine im Prozess fortschreitender Integration
stehende Gemeinschaft eigener Art", eine "zwischenstaatliche Einrichtung"...die beiden Rechts-
kreise unabhängig voneinander und nebeneinander in Geltung stehen und dass insbesondere
Gemeinschaftsorgane einschließlich des Europäischen Gerichtshofs über die Verbindlichkeit,
Auslegung und Beachtung des Gemeinschaftsrechts und die zuständigen nationalen Organe über die
Verbindlichkeit, Auslegung und Beachtung des Verfassungsrechts der Bundesrepublik Deutschland
zu befinden haben.'
46
Clearly the Court illustrates the boundaries between the two scales of jurisdic-
tion. On the one hand there exists national law and on the other hand there exists European law, in
43
e.g.: Case 11-70, judgment of the Court of 17.12.1970, ECR.
44
Case 11-70, judgment of the Court of 17.12.1970, ECR.
45
e.g.: Foster Nigel, EU Law - Directions (2010).
46
BVerfGE 37, 271 (Solange I).
32
order to harmonize their jurisdiction, coexistence has to be established, regarding the legal obliga-
tions, interpretation and acceptance of each legal core requirement. `Die Bindung der Bundesrepub-
lik Deutschland (und aller Mitgliedstaaten) durch den Vertrag ist nach Sinn und Geist der Verträge
nicht einseitig, sondern bindet auch die durch sie geschaffene Gemeinschaft, das ihre zu tun, um
den hier unterstellten Konflikt zu lösen, also nach einer Regelung zu suchen, die sich mit einem
zwingenden Gebot des Verfassungsrecht der Bundesrepublik Deutschland verträgt. [...] Inzidentfra-
gen aus dem nationalen Recht der Bundesrepublik Deutschland (oder eines anderen Mitgliedstaates)
entscheidet er jedenfalls nicht mit Verbindlichkeit für diesen Staat. [...] Ausführungen in der
Begründung seiner Entscheidungen, dass ein bestimmter Inhalt einer Gemeinschaftsnorm inhaltlich
übereinstimme oder vereinbar sei mit einer Verfassungsvorschrift des nationalen Rechts - hier: mit
einer Grundrechtsgarantie des Grundgesetzes-, stellen unverbindliche obiter dicta dar.'
47
The
Constitutional Federal Court of Germany manifested their power to perpetuate the core values
underlying within their jurisdiction.
The European Community, more specifically, its position within international law as well as its
subsequent powers were still in progress caused by a permanent new interpretation. Hence, dissen-
ting opinions were brought up. `Diese Frage ist für das Verhältnis des europäischen Gemeinschafts-
rechts zum nationalen Recht der Bundesrepublik Deutschland durch Art. 24 Abs. 1 GG in Verbin-
dung mit dem Zustimmungsgesetz zum EWG-Vertrag entschieden. [...] bei sachgerechter
Auslegung nicht nur, dass die Übertragung von Hoheitsrechten auf zwischenstaatliche Einrichtun-
gen überhaupt zulässig ist, sondern auch, dass die Hoheitsakte der zwischenstaatlichen Einrichtun-
gen von der Bundesrepublik Deutschland anzuerkennen sind (BVerfGE 31, 145 [174]). Das schließt
es von vornherein aus, sie nationaler Kontrolle zu unterwerfen. [...] Die von ihnen erlassenen
Rechtsvorschriften können daher in ihrer Geltung und Anwendbarkeit nicht davon abhängig sein,
ob sie den Maßstäben des innerstaatlichen Rechts entsprechen.'
48
The dissenting opinion, which
could not withstand the following development is predicated on the thought that the question of the
compatibility and interpretation of the European law clearly has to be denied. Due to the accession
to the EWG-Vertrag, the contracting Member States complied themselves to the European law,
therefore, also to the European jurisdiction. Through that confession, the Member States evidently
abstained from individual or general revision as to general matters, but also to individual judg-
ments. Following the dissenting opinion, there is no further space left for national controlling of
European acts.
49
47
BVerfGE 37, 271 (Solange I).
48
BVerfGE 37, 271 (Solange I).
49
BVerfGE 37, 271 (Solange I).
33
cc. The revision of the `Solange I Beschluss' through the `Solange II Beschluss`
About ten years later, in 1986 the German Constitutional Court revised Solange I Beschluss through
Solange II. The crucial passage was the following `Solange die Europäischen Gemeinschaften,
insbesondere die Rechtsprechung des Gerichtshofs der Gemeinschaften einen wirksamen Schutz
der Grundrechte gegenüber der Hoheitsgewalt der Gemeinschaften generell gewährleisten, der dem
vom Grundgesetz als unabdingbar gebotenen Grundrechtsschutz im wesentlichen gleichzuachten
ist, zumal den Wesensgehalt der Grundrechte generell verbürgt, wird das Bundesverfassungsgericht
seine Gerichtsbarkeit über die Anwendbarkeit von abgeleitetem Gemeinschaftsrecht, das als
Rechtsgrundlage für ein Verhalten deutscher Gerichte und Behörden im Hoheitsbereich der
Bundesrepublik Deutschland in Anspruch genommen wird, nicht mehr ausüben und dieses Recht
mithin nicht mehr am Maßstab der Grundrechte des Grundgesetzes überprüfen.'
50
The Constitutional Court noted that it does not examine the legislation of the ECJ regarding the
compatibility with fundamental rights guaranteed through German law. It admitted that the Com-
munity itself adequately offers sufficient protection of fundamental rights even if it is contrary to
the German fundamental rights in some cases.
51
dd. Remarks referred to the `Solange Beschlüsse'
It is apparent from these judgments what consequences the establishment of certain institutions
brought along. Clearly it was and still is difficult to bring the national interests and legal machiner-
ies in accordance with the European machinery and ideology. The Constitutional Court of Germany
demonstrated that it might take its time in order to get along with these challenges. Finally, it can be
said that the protection of human rights law cannot be done within a short time based on the ground
that the national authorities regarding the administrative field as well as the legal and judicial field
need to find their way to cope with new mechanisms and norms. Moreover, the protection of human
rights and fundamental freedoms is regulated within the Member States itself on the one hand, but
the European protection of these rights on the other hand, has to be implemented into the national
laws, which, consequently, causes irritation and problems regarding the compatibility. The national
courts are willing to reconsider their decisions and opinions as the Solange Beschlüsse did reveal.
50
BVerfGE 73, 339 (Solange II).
51
Case 11-70, judgment of the Court of 17.12.1970, ECR.
34
c. The Constitutional Law of the European Union
To understand the remarkable effect of the Union, the function of the legal machinery of the
European Union needs to be understood. Three main groups can be distinguished; these are the
constitutional law, the procedural law and the substantive law.
52
The constitutional law of the Union, likewise called institutional law, can be split into three parts:
the primary law as the main source are treaties; the legal instruments, founded by the primary law,
build the secondary scale.
The secondary law can find its source not only through the existence of the primary treaties, but
also through unilateral agreements and conventions.
Supplementary instruments are developed by other authorities, e.g. case law by the Court of Justice
of the European Union, basis requirements of international law, the principles of the Union law.
53
d. Treaties of the Community and the impact on human rights
Before the Bill of Rights, as we know it in 2013, has been established, a few further important steps
have been taken. A significant impact, regarding human rights within the Community, has been
reached through treaties. Therefore, the more relevant treaties shall be discussed shortly.
The Maastricht Treaty, which entered into force in 1993, clarified that fundamental rights are
guaranteed, firstly, by the Convention for the Protection of Human Rights and secondly, resulting
from the particular constitutions or more precise from their traditions. Fundamental rights reached
the status of being accepted as a general principle of Union law in terms of Article 6 of the EU
Treaty where it says `The Union shall respect fundamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4
November 1950 and as they result from the constitutional traditions common to the Member States,
as general principles of Community law. [...] The Union shall respect the national identities of its
Member States.'
54
Clearly, the EU Treaty does not establish specific or precise formulated funda-
mental rights itself but only refers to the acceptance of Constitutional traditions and its effects.
52
The procedural law regulates the administrative law of the European Union, moreover, it mainly comprises
the actions for any judicial review of the European Court of Justice. The substantive law largely consists of
secondary law and contains the legal rules which have been established in order to materialize the policies
of the laws agreed under any treaty.
53
e.g.: Foster Nigel, EU Law - Directions (2010).
54
in Appendix.
35
Primarily, the Treaty of Nice
55
proclaimed the implementation of the Charter since then it consti-
tutes a written legal basis for the legislation of the ECJ. After the disaffirmation of a Constitutional
Treaty on European scale, the Treaty of Lisbon refers to fundamental rights. Besides developing
numerous drafts, amendments and protocols to the treaties already in existence, the Treaty of
Lisbon for the first time ever recognized a Charter of fundamental rights as part of the primary law;
and did not only codify the existing rights. The Treaty of Lisbon combines the Maastricht Treaty
and the Treaty of Rome, now known as the Treaty on the Functioning of the European Union. The
Charter constitutes a Bill of Rights especially adapted to the system of the European Union. This is
provided in Article 6 (1) of the Treaty of Lisbon `The Union recognizes the rights, freedoms and
principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000,
as adopted at Strasbourg on 12 December 2007, which shall have the same legal value as the
treaties since it entered into force in 2009.'
56
57
Now, as the Charter is integrated into the European code as primary law the Union's organs have
decided to align their acting, not only in terms of legislation with the Charter, but also the Court, as
second effect, has to strike down specific parts of the legislation if they are contravening.
58
e. The Bill of Rights
The Charter of the European Union is recognized as the first explicitly established Bill of Rights for
the Union. The document is fragmented in 6 categories: dignity, freedoms, equality, solidarity,
citizens' rights and justice.
- The first fragment contains the right of life, prohibition of torture,the death penalty and slavery.
Also human cloning and eugenic acts. Mostly these rights find its source in the ECHR.
- Under the second title the rights of liberty, privacy, marriage, thought, individual integrity,
personal data protection, work, education, asylum, assembly and property are protected.
- The third chapter combines prohibition of all forms of discrimination regarding disabilities, age,
sexual orientation, religious and cultural differences, linguistic diversities, specific rights of
children as well as of elderly. Very important is the stay of equality before the law.
- Social rights and rights in the working field, e.g. fair conditions, unacceptable dismissals, pay-
ment, access to health institutions, housing assistance, are guaranteed through the fourth chapter.
55
Although the Treaty of Nice was signed by the Member States in 2001, it did not enter into force until 2003
on the ground of rejections by Ireland.
56
in Appendix.
57
e.g.: Foster Nigel, EU Law - Directions (2010).
58
e.g.: Di Frederico G., The EU Charter of Fundamental RIghts: From Declaration to BInding Instrument
(2009).
36
- The fifth chapter covers administrative rights such as the right to vote, freedom of movement
within the Union, the right of accessing documents.
- Through the sixth title the right of achieving a fair trial, the principle of legality, the right to an
effective remedy, presumption of innocence, non- retrospectively.
59
In its preamble the Charter declares in specific to guarantee the diversity of the cultures and
backgrounds of the Member States as well as the position of the individual. An important fact is
that the Treaty does not transfer more responsibilities to the Union, nor does it arise in general
validity. The scope of the Bill of Rights is limited to cases where the Member State applies Europe-
an Law but only then. The Charter contains two appreciably different forms of instruments, the
negative and the positive rights. For the individual the positive rights impact the legally protected
position, because the Member State not only has to guarantee fundamental rights but also has to set
an action in the given area in order to protect the individual. The negative rights apply to the
abstention of the Member State in certain fields like freedom of expression. Regarding the Member
States of the Union it has to be said that the UK and Poland refused to sign parts of the Treaty
therefore an exception has been made so the affected parts are not legally binding for them. The
Charter is related to the ECHR, furthermore, it refers to the core rights of it. The application of the
Bill of Rights does not transfer more competences than already conferred. To put it into other
words: `The Constitution seeks to combine the right of the majority to shape the development of
society with the right of individuals and minorities to be treated fairly and equally. [...] It corre-
sponds in the first instance to the parliament to identify and elaborate, i.e. to reason upon, the
fundamental values that unite the members of the political community because it is the body that
represents more opinions and interests than any other institution.'
60
The Charter illustrates the civic
bondage between the contracting States throughout a solid base of fundamental values.
C. The European Convention on Human Rights and Fundamental Freedoms
1. The first significant measures towards an appropriate implementation of Human
Rights
Law
The ECHR is of great significance in general, moreover, the main focus within this work concen-
trates on the jurisdiction of the ECtHR, therefore, I would like to start this Chapter with some
historically and legally relevant facts regarding the background of the system and operating
institutions in order to fully understand the `Strasbourg machinery' as we know it nowadays.
59
e.g.: Di Frederico G., The EU Charter of Fundamental RIghts: From Declaration to BInding Instrument
(2009).
60
Di Frederico G., The EU Charter of Fundamental RIghts: From Declaration to BInding Instrument (2009),
p.8 to 9.
Details
- Pages
- Type of Edition
- Erstauflage
- Year
- 2014
- ISBN (eBook)
- 9783954897315
- ISBN (Softcover)
- 9783954892310
- File size
- 665 KB
- Language
- English
- Publication date
- 2014 (July)
