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International Human rights law week 5 notes
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International Human rights law week 5 notes
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W5: Regional systems –Europe- Non-retrogression: related to progressive realization of rights
The term means that a state cannot go back in the realization of her rights (only
up)
- Justiciability = the ability of an independent body to provide a remedy
- Core content of a right= is the absolute minimum that states should always
guarantee (no matter what their social/economic development is, this cannot be
limited)
- ESC rights can also apply extraterritorially
- ESC rights can be limited according to art 4 ICESCR
European Union- Human Rights
Freedoms established to facilitated the economic cooperation
Now: migration laws, international crimes laws,..
Art 2 TEU: the basis for what the EU stands for (respect for human rights and
human dignity)
Art 3 TEU: The EU’s goals (to promote peace, to facilitate the area of freedom)
Art 6 TEU: Sets out the human rights policy of the EU;
- Charter of Fundamental Rights of the European Union has the same legal value as the
Treaties
- The EU shall accede the European Convention for the Protection of Human Rights
and Fundamental Freedoms
- The constitutional traditions shall be guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms
Charter of Fundamental Rights of the EU
- Legally binding since the entry into force of the Lisbon Treaty
- All categories of rights: civil, cultural, political, social, economical
- New rights: protection of personal date, freedom to conduct a business, ..
Charter- scope- art 51
- The institutions of the Union are obliged to respect the EU legislations
- The member states but only when they are implementing Union law
- The Charter does not establish any new power or modify powers and task defined by
the Treaties
Charter- limitations- art 52 (1)
- Limitations such be provided by law, respect the essence of the rights, be
proportionate, be necessary and meet objectives of general interest
Council of Europe Instruments
- After the WOII
1. Convention on the Protection of Fundamental Rights and Freedoms (= European
Convention of Human Rights) + Protocols
European Court of Human Rights (judges from each MS)
2. European Social Charter
, European Committee of Social Rights
3. Treaties on torture, minorities,…
Procedures European Court of HR
- State complaints possible (states file a complaint against each other), art. 33
- Individual complaints (complaints of a citizen of a MS), art. 34
Admissibility criteria: Victim requirement (no action popularis), exhaustion of
local remedies, substance not similar to other case, significant disadvantage,
manifestly well-founded (clear-cut violations according to existing case law)
- ECHR consisted of chambers:
Admissibility; single judge or chamber of 3 judges
Merits; chamber of 7 judges and/or Grand Chamber of 17 judges
- First: friendly settlement+ interim measures
- Final judgements are binding
- Follow up by Committee or Ministers (check up after the decision whether the State
has done what is supposed to do)
Interaction ECourtHR <-> CoJ EU (only Commission – MS or MS-MS)
- CoJ EU (Luxembourg) deals with:
Measures by EU institutions, measures by MS only when they act within the scope if
EU law
- ECHR (Strasbourg
ECHR
- A lot of workload for the Court
- New human rights issues (eg assisted suicide, same sex marriage, abortion,
environmental concerns etc)
-
Interpretation ECHR
- VCLT art. 31-33
- Dynamic interpretation- living instrument (= the rights have to be interpreted in present
day conditions!) (Case of Tyrer v UK)
- Effectiveness (Case of Airey v Ireland)
Positive obligations doctrine
- Art 1 ECHR (eg Change legislation, provide actual protection,..)
Margin of appreciation doctrine
- Subsidiary role of European Court
- Limitation clauses (8-11 ECHR) – 3 step test
Provided by law
Legitimate aim
Necessary in democratic society (Pressing social need+ proportionate) – here can
the Court refer to the margin of appreciation of the MS
- Interference IS NOT THE SAME as violation
- Protocol 15 (2013)- art 1 (not yet in force)
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