Human Rights Session 2 - Levels of protection Human rights 2- Traditional levels of protection: Who...

Human Rights Session 2 - Levels of protection

Human rights 2- Human rights 2- Traditional levels of Traditional levels of protection: Who is protecting our human protection: Who is protecting our human

rights?rights?

Pavel MolekPavel Molek


The End of History and the Last The End of History and the Last TroubleTrouble

Why do we need International Law Why do we need International Law then?then?

What topics were not solved by What topics were not solved by domestic HR bills?domestic HR bills?



Rights of foreignersRights of foreigners What to do after domestic remedies are What to do after domestic remedies are

exhausted?exhausted? Consular protectionConsular protection International arbitration and International Law International arbitration and International Law

protection is better than „gunboat diplomacy“protection is better than „gunboat diplomacy“ Jay Commission 1794Jay Commission 1794 Permanent Court of International Justice Permanent Court of International Justice Case Case

concerning certain German interests in Polish concerning certain German interests in Polish Upper Silesia Upper Silesia – 1926 – human being has HRs – 1926 – human being has HRs wherever she iswherever she is

UN GA UN GA Declaration on the human rights of Declaration on the human rights of individuals who are not nationals of the country individuals who are not nationals of the country in which they livein which they live



Protection of diplomatsProtection of diplomats Since ancient EgyptSince ancient Egypt On one hand protection of On one hand protection of

communication between statescommunication between states On the other hand protection of On the other hand protection of

individuals realizing itindividuals realizing it Now Vienna Convention on Diplomatic Now Vienna Convention on Diplomatic

Relations 1961, and Relations 1961, and Vienna Convention Vienna Convention on Consular Relations 1963on Consular Relations 1963



Humanitarian Law – when?Humanitarian Law – when? Building on laws of war by Grotius - Building on laws of war by Grotius - De jure De jure

belli ac pacisbelli ac pacis Paradox of Jules Verne eraParadox of Jules Verne era Lieber Code 1864 – American Civil WarLieber Code 1864 – American Civil War Henry Dunant: Henry Dunant: A Memory of SolferinoA Memory of Solferino, ,

International Committee of the Red CrossInternational Committee of the Red Cross 1863, First Geneva Convention 18641863, First Geneva Convention 1864

1899, 1907 Haag, 1929 Geneva 1899, 1907 Haag, 1929 Geneva ConventionsConventions



Humanitarian Law today: 4 Geneva Humanitarian Law today: 4 Geneva Conventions:Conventions: First Geneva Convention for the Amelioration of First Geneva Convention for the Amelioration of

the Condition of the Wounded and Sick in Armed the Condition of the Wounded and Sick in Armed Forces in the Field, 1864 Forces in the Field, 1864

Second Geneva Convention for the Amelioration of Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 1906 Members of Armed Forces at Sea, 1906

Third Geneva Convention relative to the Third Geneva Convention relative to the Treatment of Prisoners of War, 1929 Treatment of Prisoners of War, 1929

Fourth Geneva Convention relative to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949 Protection of Civilian Persons in Time of War, 1949



Humanitarian Law today: 3 Protocols:Humanitarian Law today: 3 Protocols: Protocol I (1977) relating to the Protocol I (1977) relating to the

Protection of Victims of International Protection of Victims of International Armed Conflicts Armed Conflicts

Protocol II (1977) relating to the Protocol II (1977) relating to the Protection of Victims of Non-Protection of Victims of Non-International Armed Conflicts International Armed Conflicts

Protocol III (2005) relating to the Protocol III (2005) relating to the Adoption of an Additional Distinctive Adoption of an Additional Distinctive Emblem (for medical services) Emblem (for medical services)



Humanitarian Law today: Lowest common denominator of HR for Humanitarian Law today: Lowest common denominator of HR for time of war:time of war:

Art. 13 -14 of Third Geneva Convention: Art. 13 -14 of Third Geneva Convention: „„Article 13Article 13Prisoners of war must at all times be humanely treated. Any unlawful act or Prisoners of war must at all times be humanely treated. Any unlawful act or

omission by the Detaining Power causing death or seriously endangering the omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of Likewise, prisoners of war must at all times be protected, particularly against acts of violence orviolence or intimidation and against insults and public curiosity.intimidation and against insults and public curiosity.

Measures of reprisal against prisoners of war are prohibited.Measures of reprisal against prisoners of war are prohibited. Article 14Article 14Prisoners of war are entitled in all circumstances to respect for their persons and Prisoners of war are entitled in all circumstances to respect for their persons and

their honour.their honour.Women shall be treated with all the regard due to their sex and shall in all cases Women shall be treated with all the regard due to their sex and shall in all cases

benefit by treatment as favourable as that granted to men.benefit by treatment as favourable as that granted to men.Prisoners of war shall retain the full civil capacity which they enjoyed at the time of Prisoners of war shall retain the full civil capacity which they enjoyed at the time of

their capture. The Detaining Power may not restrict the exercise, either within or their capture. The Detaining Power may not restrict the exercise, either within or without its own territory, of the rights such capacity confers except in so far as without its own territory, of the rights such capacity confers except in so far as the captivity requires.the captivity requires.



Slavery: Slavery: biggest absurdity of modern agebiggest absurdity of modern age Lord Mansfield: Somerset case (1772):Lord Mansfield: Somerset case (1772):

“Slavery is so odious, that nothing can “Slavery is so odious, that nothing can be found to support it“.be found to support it“.

Vienna Congress 1815Vienna Congress 1815 Bilateral treaties with UK on prosecution Bilateral treaties with UK on prosecution

of slavery on high seesof slavery on high sees Convention to Suppress the Slave Trade Convention to Suppress the Slave Trade

and Slavery and Slavery 19261926



Minorities:Minorities: Vienna Congress 1815 – do protect your Vienna Congress 1815 – do protect your

Poles….Poles…. Turkey, be nice to your minorities!Turkey, be nice to your minorities! Case Concerning the Question of Case Concerning the Question of

Minority Schools in Albania (1935) Minority Schools in Albania (1935) Minorities as pioneers of some HRs: Minorities as pioneers of some HRs:

right to education, freedom of religionright to education, freedom of religion



Refugees:Refugees: Huge trouble after WW1 (together with Huge trouble after WW1 (together with

stateless people: Russian, Armenian and stateless people: Russian, Armenian and othersothers

Nansen International Office for Refugees Nansen International Office for Refugees 19301930

Refugee Convention 1933 Refugee Convention 1933 Convention relating to the Status of Convention relating to the Status of

Refugees Refugees 1951 + UNHCR1951 + UNHCR



International Labour Organization International Labour Organization 1919: risk of a race to the bottom at 1919: risk of a race to the bottom at work conditions work conditions Convention Limiting the Hours of Work in Convention Limiting the Hours of Work in

Industrial Undertakings to Eight in the Day Industrial Undertakings to Eight in the Day and Forty-eight in the Week and Forty-eight in the Week 19191919

Convention concerning the Employment of Convention concerning the Employment of Women before and after Childbirth Women before and after Childbirth 19191919

Convention concerning the Age for Convention concerning the Age for Admission of Children to Employment in Admission of Children to Employment in Agriculture Agriculture 19211921


The End of History - 1945The End of History - 1945

New structure after WW2 and its New structure after WW2 and its levels – „postwar onion“ – perspective levels – „postwar onion“ – perspective of anonymous European state…of anonymous European state…

Instruments, organs, proceduresInstruments, organs, procedures General versus special organsGeneral versus special organs Natural rights over positive rightsNatural rights over positive rights Western versus socialistic versus Western versus socialistic versus

Third world perspectiveThird world perspective Recent situation – literal introductionRecent situation – literal introduction


Recent structure – domestic levelRecent structure – domestic level

Literal trailer + basic stepsLiteral trailer + basic steps National bills of rightsNational bills of rights CourtsCourts Constitutional courtConstitutional court OmbudsmanOmbudsman Main function of all organs in modern Main function of all organs in modern

liberal state…….liberal state…….


Recent structure – EURecent structure – EU


IntroductionIntroduction

EU - New Kid on the Block EU - New Kid on the Block Why should we have HRs protection in EU?Why should we have HRs protection in EU? ECSC 1951 was not about HRs….ECSC 1951 was not about HRs…. So why do we need them? What was EC So why do we need them? What was EC

about?about? The more competences, the more limits on The more competences, the more limits on

competences by MSs (HRs as a fortress of MSs)competences by MSs (HRs as a fortress of MSs) The more competences, the more possibility of The more competences, the more possibility of

interference with HRs (EU attacking HRs)interference with HRs (EU attacking HRs) Thousands of facets of non-discrimination… Thousands of facets of non-discrimination…

(beloved topic of EU HRs protection)(beloved topic of EU HRs protection)


50s: The original EC Treaty50s: The original EC Treaty Article 1Article 11919 E EEEC TreatyC Treaty„„Each Member State shall in the course of the first stage Each Member State shall in the course of the first stage

ensure and subsequently maintain the application of the ensure and subsequently maintain the application of the principle of equal remuneration for equal work as between principle of equal remuneration for equal work as between men and women workers.men and women workers.

For the purposes of this Article, remuneration shall mean the For the purposes of this Article, remuneration shall mean the ordinary basic or minimum wage or salary and any ordinary basic or minimum wage or salary and any additional emoluments whatsoever payable directly or additional emoluments whatsoever payable directly or indirectly, whether in cash or in kind, by the employer to indirectly, whether in cash or in kind, by the employer to the worker and arising out of the workers’ employment.the worker and arising out of the workers’ employment.

Equal remuneration without discrimination based on sex Equal remuneration without discrimination based on sex means:means:

(a) that remuneration for the same work at piece-rates shall (a) that remuneration for the same work at piece-rates shall be calculated on the basis of the same unit of be calculated on the basis of the same unit of measurement; andmeasurement; and

(b) that remuneration for work at time-rates shall be the same (b) that remuneration for work at time-rates shall be the same for the same job.for the same job.““


60s: founding case law principles60s: founding case law principles

Case 26/62 Van Gend & Loos [1963] ECR 1Case 26/62 Van Gend & Loos [1963] ECR 1: „…: „…ACCORDING TO THEACCORDING TO THE SPIRIT, THE GENERAL SCHEME SPIRIT, THE GENERAL SCHEME AND THE WORDING OF THE TREATY, ARTICLE 12AND THE WORDING OF THE TREATY, ARTICLE 12 MUST BE INTERPRETED AS PRODUCING DIRECT MUST BE INTERPRETED AS PRODUCING DIRECT EFFECTS AND CREATING INDIVIDUALEFFECTS AND CREATING INDIVIDUAL RIGHTS RIGHTS WHICH NATIONAL COURTS MUST PROTECTWHICH NATIONAL COURTS MUST PROTECT…“…“

Case 6/64 Costa v. ENEL [1964] ECR 614:Case 6/64 Costa v. ENEL [1964] ECR 614: „ „THE THE TRANSFER BY THE STATES FROM THEIR DOMESTIC TRANSFER BY THE STATES FROM THEIR DOMESTIC LEGAL SYSTEM TO THELEGAL SYSTEM TO THE COMMUNITY LEGAL SYSTEM COMMUNITY LEGAL SYSTEM OF THE RIGHTS AND OBLIGATIONS ARISING UNDER OF THE RIGHTS AND OBLIGATIONS ARISING UNDER THETHE TREATY CARRIES WITH IT A PERMANENT TREATY CARRIES WITH IT A PERMANENT LIMITATION OF THEIR SOVEREIGN RIGHTS,LIMITATION OF THEIR SOVEREIGN RIGHTS, AGAINST WHICH A SUBSEQUENT UNILATERAL ACT AGAINST WHICH A SUBSEQUENT UNILATERAL ACT INCOMPATIBLE WITH THEINCOMPATIBLE WITH THE CONCEPT OF THE CONCEPT OF THE COMMUNITY CANNOT PREVAIL.COMMUNITY CANNOT PREVAIL.““


70s: First HR cases – who is the 70s: First HR cases – who is the defendor fidei?defendor fidei?

Case 11/70 Internationale HandesgeselschaftCase 11/70 Internationale Handesgeselschaft [1970] [1970] ECR 1125ECR 1125:: weird facts of HRs cases in EC/EU…. weird facts of HRs cases in EC/EU….

The applicant, a German import-export company, obtained an The applicant, a German import-export company, obtained an export licence in respect ofexport licence in respect of 20,000 metric tonnes of maize 20,000 metric tonnes of maize meal, the validity of which expired on 31 December 1967.meal, the validity of which expired on 31 December 1967. Council regulation 120/67 had set up a system for the Council regulation 120/67 had set up a system for the common organization of the cerealcommon organization of the cereal market, whereby a market, whereby a licence could be obtained by lodging a deposit, and that licence could be obtained by lodging a deposit, and that deposit would bedeposit would be forfeited if the goods were not exported forfeited if the goods were not exported within the period of time set. A part of the applicant’swithin the period of time set. A part of the applicant’s company’s deposit was forfeited when the licence expired company’s deposit was forfeited when the licence expired without the maize having beenwithout the maize having been exported, and the company exported, and the company brought proceedings before the administrative court brought proceedings before the administrative court claiming theclaiming the return of this sum and questioning the validity return of this sum and questioning the validity of the deposit system. The national courtof the deposit system. The national court referred the case referred the case to the ECJ.to the ECJ.


70s: First HR cases - who is the 70s: First HR cases - who is the defendor fidei?defendor fidei?

„„3. RECOURSE TO THE LEGAL RULES OR CONCEPTS OF NATIONAL LAW IN ORDER TO3. RECOURSE TO THE LEGAL RULES OR CONCEPTS OF NATIONAL LAW IN ORDER TO JUDGE THE VALIDITY OF MEASURES ADOPTED BY THE INSTITUTIONS OF THEJUDGE THE VALIDITY OF MEASURES ADOPTED BY THE INSTITUTIONS OF THE COMMUNITY WOULD HAVE AN ADVERSE EFFECT ON THE UNIFORMITY ANDCOMMUNITY WOULD HAVE AN ADVERSE EFFECT ON THE UNIFORMITY AND EFFICACY EFFICACY OF COMMUNITY LAW . THE OF COMMUNITY LAW . THE V VALIDITY OF SUCH MEASURES CAN ONLY BEALIDITY OF SUCH MEASURES CAN ONLY BE JUDGED IN JUDGED IN THE LIGHT OF COMMUNITY LAW . THE LIGHT OF COMMUNITY LAW . IN FACT, THE LAW STEMMING FROMIN FACT, THE LAW STEMMING FROM THE TREATY, AN THE TREATY, AN INDEPENDENT SOURCE OF LAW, CANNOT BECAUSE OF ITS VERYINDEPENDENT SOURCE OF LAW, CANNOT BECAUSE OF ITS VERY NATURE BE NATURE BE OVERRIDDEN BY RULES OF NATIONAL LAW, HOWEVER FRAMED,OVERRIDDEN BY RULES OF NATIONAL LAW, HOWEVER FRAMED, WITHOUT BEING WITHOUT BEING DEPRIVED OF ITS CHARACTER AS COMMUNITY LAW AND WITHOUTDEPRIVED OF ITS CHARACTER AS COMMUNITY LAW AND WITHOUT THE LEGAL BASIS THE LEGAL BASIS OF THE COMMUNITY ITSELF BEING CALLED IN QUESTION.OF THE COMMUNITY ITSELF BEING CALLED IN QUESTION. THEREFORE THE VALIDITY THEREFORE THE VALIDITY OF A COMMUNITY MEASURE OR ITS EFFECT WITHIN AOF A COMMUNITY MEASURE OR ITS EFFECT WITHIN A MEMBER STATE CANNOT BE MEMBER STATE CANNOT BE AFFECTED BY ALLEGATIONS THAT IT RUNS COUNTERAFFECTED BY ALLEGATIONS THAT IT RUNS COUNTER TO EITHER FUNDAMENTAL TO EITHER FUNDAMENTAL RIGHTS AS FORMULATED BY THE CONSTITUTION OFRIGHTS AS FORMULATED BY THE CONSTITUTION OF THAT STATE OR THE PRINCIPLES THAT STATE OR THE PRINCIPLES OF A NATIONAL CONSTITUTIONAL STRUCTURE.OF A NATIONAL CONSTITUTIONAL STRUCTURE. HOWEVER, AN EXAMINATION SHOULD HOWEVER, AN EXAMINATION SHOULD BE MADE AS TO WHETHER OR NOT ANYBE MADE AS TO WHETHER OR NOT ANY ANALOGOUS GUARANTEE INHERENT IN ANALOGOUS GUARANTEE INHERENT IN COMMUNITY LAW HAS BEEN DISREGARDED .COMMUNITY LAW HAS BEEN DISREGARDED . IN FACT, RESPECT FOR FUNDAMENTAL IN FACT, RESPECT FOR FUNDAMENTAL RIGHTS FORMS AN INTEGRAL PART OF THERIGHTS FORMS AN INTEGRAL PART OF THE GENERAL PRINCIPLES OF LAW GENERAL PRINCIPLES OF LAW PROTECTED BY THE COURT OF JUSTICE . THEPROTECTED BY THE COURT OF JUSTICE . THE PROTECTION OF SUCH RIGHTS, WHILST PROTECTION OF SUCH RIGHTS, WHILST INSPIRED BY INSPIRED BY THE CONSTITUTIONALTHE CONSTITUTIONAL TRADITIONS COMMON TO THE MEMBER STATES,TRADITIONS COMMON TO THE MEMBER STATES, MUST BE ENSURED WITHIN THEMUST BE ENSURED WITHIN THE FRAMEWORK OF THE STRUCTURE AND OBJECTIVES FRAMEWORK OF THE STRUCTURE AND OBJECTIVES OF THE COMMUNITY . IT MUSTOF THE COMMUNITY . IT MUST THEREFORE BE ASCERTAINED, IN THE LIGHT OF THE THEREFORE BE ASCERTAINED, IN THE LIGHT OF THE DOUBTS EXPRESSED BY THEDOUBTS EXPRESSED BY THE VERWALTUNGSGERICHT, WHETHER THE SYSTEM OF VERWALTUNGSGERICHT, WHETHER THE SYSTEM OF DEPOSITS HAS INFRINGEDDEPOSITS HAS INFRINGED RIGHTS OF A FUNDAMENTAL NATURE, RESPECT FOR RIGHTS OF A FUNDAMENTAL NATURE, RESPECT FOR WHICH MUST BE ENSURED INWHICH MUST BE ENSURED IN THE COMMUNITY LEGAL SYSTEM.THE COMMUNITY LEGAL SYSTEM.“ “

Don‘t use German constitution against EC, EC will protect HRs better….;-)Don‘t use German constitution against EC, EC will protect HRs better….;-)


90s: let us be European 90s: let us be European citizens!citizens!

Judgment of ECJ in Case C-159/90, Judgment of ECJ in Case C-159/90, The Society for the Protection of The Society for the Protection of Unborn Children Ireland Ltd v Unborn Children Ireland Ltd v Stephen Grogan et al.Stephen Grogan et al. Story and result?Story and result?


90s: let us be European citizens!90s: let us be European citizens!

Opinion of Advocate general Jacobs in Case C-168/91 Opinion of Advocate general Jacobs in Case C-168/91 KonstantinidisKonstantinidis [1993] ECR I-1191[1993] ECR I-1191 – what was it about? – what was it about? Languages….?Languages….?

„„46. In my opinion, a Community national who goes to another46. In my opinion, a Community national who goes to another Member State as a worker or selfMember State as a worker or self--employedemployed person under person under Articles 48, 52 or 59 of the Treaty is entitled not just to Articles 48, 52 or 59 of the Treaty is entitled not just to pursue his trade orpursue his trade or profession and to enjoy the same living profession and to enjoy the same living and working conditions as nationals of the host State; he is and working conditions as nationals of the host State; he is inin addition entitled to assume that, wherever he goes to addition entitled to assume that, wherever he goes to earn his living in the European Community, heearn his living in the European Community, he will be will be treated in accordance with a common code of fundamental treated in accordance with a common code of fundamental values, in particular those laid downvalues, in particular those laid down in the European in the European Convention on Human Rights. In other words, he is entitled Convention on Human Rights. In other words, he is entitled to say "civis europeusto say "civis europeus sum" and to invoke that status in sum" and to invoke that status in order to oppose any violation of his fundamental rights.”order to oppose any violation of his fundamental rights.”



Judgment in Case C-168/91 Konstantinidis [1993] ECR I-Judgment in Case C-168/91 Konstantinidis [1993] ECR I-11911191

What remained of AG opinion?What remained of AG opinion?„„15 Rules of that kind are to be regarded as incompatible with 15 Rules of that kind are to be regarded as incompatible with

Article 52 of the Treaty only in so far asArticle 52 of the Treaty only in so far as their application their application causes a Greek national such a degree of inconvenience as causes a Greek national such a degree of inconvenience as in fact to interfere with hisin fact to interfere with his freedom to exercise the right of freedom to exercise the right of establishment enshrined in that article.establishment enshrined in that article.

16 Such interference occurs if a Greek national is obliged by 16 Such interference occurs if a Greek national is obliged by the legislation of the State in which he isthe legislation of the State in which he is established to use, established to use, in the pursuit of his occupation, a spelling of his name in the pursuit of his occupation, a spelling of his name derived from thederived from the transliteration used in the registers of civil transliteration used in the registers of civil status if that spelling is such as to modify its pronunciationstatus if that spelling is such as to modify its pronunciation and if the resulting distortion exposes him to the risk that and if the resulting distortion exposes him to the risk that potential clients may confuse him with otherpotential clients may confuse him with other persons.persons.““


90s: let us be European citizens!90s: let us be European citizens! Maastricht Treaty 1992:Maastricht Treaty 1992:„„FF22 TEU: TEU: The Union shall respect fundamental rights, as guaranteed by the The Union shall respect fundamental rights, as guaranteed by the

European Convention for the Protection of Human Rights and Fundamental European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general constitutional traditions common to the Member States, as general principles of Community law.principles of Community law.““

„„Article 8Article 8 TEC TEC 1. Citizenship of the Union is hereby established. Every person holding the 1. Citizenship of the Union is hereby established. Every person holding the

nationality of a Member State shall be a citizen of the Union. nationality of a Member State shall be a citizen of the Union. 2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall 2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall

be subject to the duties imposed thereby. be subject to the duties imposed thereby. Article 8a Article 8a 1. Every citizen of the Union shall have the right to move and reside freely 1. Every citizen of the Union shall have the right to move and reside freely

within the territory of the Member States, subject to the limitations and within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it conditions laid down in this Treaty and by the measures adopted to give it effect. effect.

2. The Council may adopt provisions with a view to facilitating the exercise of 2. The Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1; save as otherwise provided in this the rights referred to in paragraph 1; save as otherwise provided in this Treaty, the Council shall act unanimously on a proposal from the Treaty, the Council shall act unanimously on a proposal from the Commission and after obtaining the assent of the European Parliament.Commission and after obtaining the assent of the European Parliament.““



TEU after Amsterodam Treaty:TEU after Amsterodam Treaty:„„Article 6Article 61. The Union is founded on the principles of liberty, 1. The Union is founded on the principles of liberty,

democracy, respect for human rights anddemocracy, respect for human rights and fundamental freedoms, and the rule of law, fundamental freedoms, and the rule of law, principles which are common to the Member States.principles which are common to the Member States.

2. The Union shall respect fundamental rights, as 2. The Union shall respect fundamental rights, as guaranteed by the European Convention for theguaranteed by the European Convention for the Protection of Human Rights and Protection of Human Rights and F Fundamental undamental Freedoms signed in Rome on 4 November 1950 and Freedoms signed in Rome on 4 November 1950 and asas they result from the constitutional traditions they result from the constitutional traditions common to the Member States, as general common to the Member States, as general principles ofprinciples of Community law.Community law.““


2000: The Charter and her story2000: The Charter and her story DDrafted by a body called the “Convention” on the basis of a rafted by a body called the “Convention” on the basis of a

decision of the Cologne summit adopted in June 1999. decision of the Cologne summit adopted in June 1999. Answer to whetherAnswer to whether the EU should accede to European Convention the EU should accede to European Convention

on Human Rights or should have its own Bill of Rights and how on Human Rights or should have its own Bill of Rights and how to solve the problem of ever more intensive interference of the to solve the problem of ever more intensive interference of the ever-closer Union into human rights problemacy. ever-closer Union into human rights problemacy.

SSolemnly proclaimed by the Presidents of the European olemnly proclaimed by the Presidents of the European Parliament, the Council of the European Union and the European Parliament, the Council of the European Union and the European Commission in Nice European Council on the 7 December 2000. Commission in Nice European Council on the 7 December 2000. But it was not annexed to the fundamental Treaties (although it But it was not annexed to the fundamental Treaties (although it had been “drafted as if it were to have full legal effect” ) and its had been “drafted as if it were to have full legal effect” ) and its legal force remained undetermined (or left to the later political legal force remained undetermined (or left to the later political process) due especially to the UK reluctance to accept a binding process) due especially to the UK reluctance to accept a binding fundamental rights catalogue on EU levelfundamental rights catalogue on EU level

The first attempt to make the Charter legally binding done in the The first attempt to make the Charter legally binding done in the draft EU Constitution Treaty. draft EU Constitution Treaty.

AAfter the Lisbon Treaty, replacing EU Constitution Treaty, came fter the Lisbon Treaty, replacing EU Constitution Treaty, came into force on 1 December 2009, was the Charter made legally into force on 1 December 2009, was the Charter made legally binding as proclaimed by Art. 6 para. 1 of the Treaty on European binding as proclaimed by Art. 6 para. 1 of the Treaty on European Union. Union.


2000: The Charter and her story2000: The Charter and her story

Structure: Structure: DignityDignity FreedomsFreedoms EqualityEquality SolidaritySolidarity Citizen´s RightsCitizen´s Rights JusticeJustice


2000: The Charter and her story2000: The Charter and her story Field of application:Field of application:

„„Article 51Article 51Field of applicationField of application1. The provisions of this Charter are addressed to the 1. The provisions of this Charter are addressed to the

institutions, bodies, offices and agencies ofinstitutions, bodies, offices and agencies of the Union with the Union with due regard for the principle of subsidiarity and to the due regard for the principle of subsidiarity and to the Member States only when theyMember States only when they are implementing Union are implementing Union law. They shall therefore respect the rights, observe the law. They shall therefore respect the rights, observe the principles andprinciples and promote the application thereof in promote the application thereof in accordance with their respective powers and respecting accordance with their respective powers and respecting the limits ofthe limits of the powers of the Union as conferred on it in the powers of the Union as conferred on it in the Treaties.the Treaties.

2. The Charter does not extend the field of application of 2. The Charter does not extend the field of application of Union law beyond the powers of theUnion law beyond the powers of the Union or establish any Union or establish any new power or task for the Union, or modify powers and new power or task for the Union, or modify powers and tasks as defined in thetasks as defined in the T Treaties.reaties.““


2000: The Charter and her troubles2000: The Charter and her troubles

Charter as a happy end of HRs story in EU? Charter as a happy end of HRs story in EU? That was a good one….;-)That was a good one….;-)


2000: The Charter and her troubles2000: The Charter and her troubles Protocol on the application of the Charter of Fundamental Rights Protocol on the application of the Charter of Fundamental Rights

of the European Union to Poland and to the United Kingdomof the European Union to Poland and to the United Kingdom (and (and the Czech Republic?)the Czech Republic?)

„„Article 1Article 11.1. The Charter does not extend the ability of the Court of Justice of The Charter does not extend the ability of the Court of Justice of

the European Union, or any court or tribunal of Poland or of the the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.freedoms and principles that it reaffirms.

2.2. In particular, and for the avoidance of doubt, nothing in Title IV In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.Kingdom has provided for such rights in its national law.

Article 2Article 2To the extent that a provision of the Charter refers to national laws To the extent that a provision of the Charter refers to national laws

and practices, it shall only apply to Poland or the United Kingdom and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United recognised in the law or practices of Poland or of the United Kingdom.Kingdom.““


Recent structure – regional generalRecent structure – regional general

Council of EuropeCouncil of Europe 19491949 47 members (Europe – except of Belarus)47 members (Europe – except of Belarus) Committee of Ministers Committee of Ministers Secretary General - Thorbjørn JaglandSecretary General - Thorbjørn Jagland Commissioner for Human RightsCommissioner for Human Rights


Recent structure – regional generalRecent structure – regional general

ECHR – confusing abbreviation – Court ECHR – confusing abbreviation – Court or Conventionor Convention

Court: President Nicolas BratzaCourt: President Nicolas Bratza 47 judges47 judges 5 sections or Grand chamber5 sections or Grand chamber


Recent structure – regional generalRecent structure – regional general ECHR – ECHR – Convention for the Convention for the

Protection of Human Rights and Protection of Human Rights and Fundamental FreedomsFundamental Freedoms + 14 + 14 Protocols (procedural and Protocols (procedural and material)material)

Before Protocol 11 – Court and Before Protocol 11 – Court and CommissionCommission

Competences (no quashing…): Competences (no quashing…): Art. 41:Art. 41:

„„If the Court finds that there If the Court finds that there has been a violation of the has been a violation of the Convention or the Protocols Convention or the Protocols thereto, and if the internal law thereto, and if the internal law of the High Contracting Party of the High Contracting Party concerned allows only partial concerned allows only partial reparation to be made, the reparation to be made, the Court shall, if necessary, afford Court shall, if necessary, afford just satisfaction to the injured just satisfaction to the injured party.party.““

Victim of its own success – Victim of its own success – 57100 applications in 2009!57100 applications in 2009!


Recent structure – regional specialRecent structure – regional special

Under umbrela of CoEUnder umbrela of CoE European Social Charter 1961 (European Social Charter 1961 (European Committee of European Committee of

Social RightsSocial Rights)) European Convention for the Prevention of Torture and European Convention for the Prevention of Torture and

Inhuman or Degrading Treatment or Punishment Inhuman or Degrading Treatment or Punishment 1967 1967 ((European Committee for the Prevention of Torture and European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or PunishmentInhuman or Degrading Treatment or Punishment))

Convention for the protection of Human Rights and Convention for the protection of Human Rights and dignity of the human being with regard to the dignity of the human being with regard to the application of biology and medicine: Convention on application of biology and medicine: Convention on Human Rights and Biomedicine Human Rights and Biomedicine 1997 (1997 (Steering Steering Committee on BioethicsCommittee on Bioethics))

European Charter for Regional or Minority Languages European Charter for Regional or Minority Languages 1992 (1992 (Committee of expertsCommittee of experts))

and many more….and many more….


Recent structure – super-regionalRecent structure – super-regional

The Organization for Security and Co-The Organization for Security and Co-operation in Europeoperation in Europe (OSCE): (OSCE): 56 member states „from Vancouver to 56 member states „from Vancouver to

Vladivostok“Vladivostok“ Set up to guarantee security in Cold war Set up to guarantee security in Cold war

19751975 3 baskets: military and political; economic 3 baskets: military and political; economic

cooperation and…..HR! (Charta 77)cooperation and…..HR! (Charta 77) What are they used for now…..?What are they used for now…..?


Recent structure – other regionsRecent structure – other regions American Convention on Human Rights (Pact American Convention on Human Rights (Pact

of San José)of San José) 1969: 1969: Inter-American Commission Inter-American Commission on Human Rights and Inter-American Court of on Human Rights and Inter-American Court of Human RightsHuman Rights ( (Organization of American Organization of American States)States)

African Charter on Human and Peoples' Rights African Charter on Human and Peoples' Rights (Banjul Charter) (Banjul Charter) 1979: 1979: African Commission on African Commission on Human and Peoples' Rights Human and Peoples' Rights andand African Court African Court on Human and Peoples' Rightson Human and Peoples' Rights (African Union) (African Union)

Cairo Declaration of Human Rights in Islam Cairo Declaration of Human Rights in Islam 1990 (1990 (Organisation of the Islamic ConferenceOrganisation of the Islamic Conference))

Inspired by CoE… Inspired by CoE…


Recent structure – United nations – Recent structure – United nations – Charter based bodiesCharter based bodies

Documents?Documents? Charter + Universal Declaration of Human Charter + Universal Declaration of Human

Rights 1948 (what is its character? Is it Rights 1948 (what is its character? Is it binding?)binding?)



Preamble:Preamble:““The General AssemblyThe General Assembly Proclaims this Universal Declaration of Proclaims this Universal Declaration of

Human Rights as a common standard of achievementHuman Rights as a common standard of achievement for all for all peoplespeoples and all nations, to the end that every individualand all nations, to the end that every individual and and every organ of society, keeping this Declaration constantlyevery organ of society, keeping this Declaration constantly in mind, shall strive by teachingin mind, shall strive by teaching and educationand education to promote to promote respect for these rights and freedoms and by progressiverespect for these rights and freedoms and by progressive measures, national and international, to secure their measures, national and international, to secure their universal and effective recognitionuniversal and effective recognition and observance,and observance, both both among the peoples of Member States themselves and among the peoples of Member States themselves and among the peoplesamong the peoples of territoriesof territories under their jurisdiction.under their jurisdiction.““

Legal Consequences for States of the Continued Presence of Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)Security Council Resolution 276 (1970) – thanks to usus – thanks to usus longaevus it is now customary lawlongaevus it is now customary law



Bodies?Bodies? UN General AssemblyUN General Assembly UN Security Council – both maintaining „peace and security“ – broad UN Security Council – both maintaining „peace and security“ – broad

interpretationinterpretation ICJICJ UNHCRUNHCR Office of the United Nations High Commissioner for Human RightsOffice of the United Nations High Commissioner for Human Rights (since (since

1993) – 1993) – co-ordinates human rights activities throughout the UN Systemco-ordinates human rights activities throughout the UN System - - now now Navanethem PillayNavanethem Pillay



Human Rights Council (plus Advisory Human Rights Council (plus Advisory Committee and its Working groups): Committee and its Working groups): established in 2006 (UN GA established in 2006 (UN GA resolution resolution A/RES/60/251A/RES/60/251) as a ) as a successor to the United successor to the United Nations Commission on Human Rights Nations Commission on Human Rights Universal periodic review of all UN statesUniversal periodic review of all UN states Complaints procedure (let us try it)Complaints procedure (let us try it) Special Procedures (on topics like Arbitrary Special Procedures (on topics like Arbitrary

Detention or country – which one is most often Detention or country – which one is most often condemned?) – answer is in political bloc voting….condemned?) – answer is in political bloc voting….


Recent structure – United nations – Recent structure – United nations – Treaty based bodiesTreaty based bodies

General: The Human Rights Committee General: The Human Rights Committee (CCPR) – monitoring implementation of (CCPR) – monitoring implementation of International Covenant on Civil and International Covenant on Civil and Political Rights 1966 (ICCPR) and its 2 Political Rights 1966 (ICCPR) and its 2 optional protocols (on individual optional protocols (on individual complaints and on abolishment of the complaints and on abolishment of the death penalty); 18 members, experts death penalty); 18 members, experts nominated by states: closed meetings, nominated by states: closed meetings, output is opinion…output is opinion…



ICCPR ICCPR „„Article 2Article 21. Each State Party to the present Covenant 1. Each State Party to the present Covenant

undertakes to respect and to ensure to allundertakes to respect and to ensure to all individuals individuals within its territory and subject to its jurisdiction the within its territory and subject to its jurisdiction the rights recognized in the presentrights recognized in the present Covenant, without Covenant, without distinction of any kind, such as race, colour, sex, distinction of any kind, such as race, colour, sex, language, religion, politicallanguage, religion, political or other opinion, national or other opinion, national or social origin, property, birth or other status.or social origin, property, birth or other status.

2. Where not already provided for by existing 2. Where not already provided for by existing legislative or other measures, each State Party tolegislative or other measures, each State Party to the the present Covenant undertakes to take the necessary present Covenant undertakes to take the necessary steps, in accordance with itssteps, in accordance with its constitutional processes constitutional processes and with the provisions of the present Covenant, to and with the provisions of the present Covenant, to adopt such laws oradopt such laws or other measures as may be other measures as may be necessary to give effect to the rights recognized in necessary to give effect to the rights recognized in the presentthe present Covenant.Covenant.



3. Each State Party to the present Covenant 3. Each State Party to the present Covenant undertakes:undertakes:

(a) To ensure that any person whose rights or (a) To ensure that any person whose rights or freedoms as herein recognized are violated shallfreedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the have an effective remedy, notwithstanding that the violation has been committed by personsviolation has been committed by persons acting in acting in an official capacity;an official capacity;

(b) To ensure that any person claiming such a remedy (b) To ensure that any person claiming such a remedy shall have his right thereto determinedshall have his right thereto determined by by competent judicial, administrative or legislative competent judicial, administrative or legislative authorities, or by any other competentauthorities, or by any other competent authority authority provided for by the legal system of the State, and to provided for by the legal system of the State, and to develop the possibilities ofdevelop the possibilities of judicial remedy;judicial remedy;

(c) To ensure that the competent authorities shall (c) To ensure that the competent authorities shall enforce such remedies when granted.enforce such remedies when granted.““



Special:Special: Committee on Economic, Social and Cultural Committee on Economic, Social and Cultural

Rights (CESCR) Rights (CESCR) – – monitors implementation of monitors implementation of the International Covenant on Economic, Social the International Covenant on Economic, Social and Cultural Rights and Cultural Rights 1966 1966 by its States partiesby its States parties: : soft law, reports to UN Economic and Social soft law, reports to UN Economic and Social Council Council

on 10 December 2008 the General Assembly on 10 December 2008 the General Assembly unanimously adopted an Optional Protocol (GA unanimously adopted an Optional Protocol (GA resolution A/RES/63/117) to the International resolution A/RES/63/117) to the International Covenant on Economic, Social and Cultural Covenant on Economic, Social and Cultural Rights which provides the Committee Rights which provides the Committee competence to receive and consider competence to receive and consider communicationscommunications, now open to signatures, now open to signatures



Article 2 ICESCR:Article 2 ICESCR:„„1. Each State Party to the present Covenant undertakes to take 1. Each State Party to the present Covenant undertakes to take

steps, individually and throughsteps, individually and through international assistance and international assistance and co-operation, especially economic and technical, to the co-operation, especially economic and technical, to the maximum of itsmaximum of its available resources, with a view to achieving available resources, with a view to achieving progressively the full realization of the rights recognizedprogressively the full realization of the rights recognized in the in the present Covenant by all appropriate means, including present Covenant by all appropriate means, including particularly the adoption of legislativeparticularly the adoption of legislative measures.measures.

2. The States Parties to the present Covenant undertake to 2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in theguarantee that the rights enunciated in the present Covenant present Covenant will be exercised without discrimination of any kind as to race, will be exercised without discrimination of any kind as to race, colour, sex, language,colour, sex, language, religion, political or other opinion, religion, political or other opinion, national or social origin, property, birth or other status.national or social origin, property, birth or other status.

3. Developing countries, with due regard to human rights and 3. Developing countries, with due regard to human rights and their national economy, may determinetheir national economy, may determine to what extent they to what extent they would guarantee the economic rights recognized in the would guarantee the economic rights recognized in the present Covenant to nonnationals.present Covenant to nonnationals.““



SpecialSpecial Committee on the Elimination of Racial Discrimination Committee on the Elimination of Racial Discrimination

(CERD) (CERD) 19651965 Committee on the Elimination of Discrimination Against Committee on the Elimination of Discrimination Against

Women (CEDAW) Women (CEDAW) 19791979 Committee Against Torture (CAT) & Optional Protocol to Committee Against Torture (CAT) & Optional Protocol to

the Convention against Torture (OPCAT) - Subcommittee the Convention against Torture (OPCAT) - Subcommittee on Prevention of Torture (SPT) on Prevention of Torture (SPT) 19841984

Committee on the Rights of the Child (CRC) Committee on the Rights of the Child (CRC) 19891989 Committee on Migrant Workers (CMW) Committee on Migrant Workers (CMW) 19901990 Committee on the Rights of Persons with Disabilities Committee on the Rights of Persons with Disabilities

(CRPD)(CRPD) 2008 2008 International Convention for the Protection of All Persons International Convention for the Protection of All Persons

from Enforced Disappearance from Enforced Disappearance 2006 – Committee on 2006 – Committee on Enforced Disappearances Enforced Disappearances



Competences of committees:Competences of committees: General comments – about concrete rightsGeneral comments – about concrete rights Reports procedure: general reports from states Reports procedure: general reports from states

every X years (for CRC, CMW the only procedure)every X years (for CRC, CMW the only procedure) Inquiry procedure – visiting the countries (opt-out Inquiry procedure – visiting the countries (opt-out

possibility) possibility) Examination of inter-state complaints – not usedExamination of inter-state complaints – not used examination of individual complaints (CCPR, examination of individual complaints (CCPR,

CERD, CAT and CEDAW, now CESCR) – Opt-in CERD, CAT and CEDAW, now CESCR) – Opt-in provisionprovision



Why are they unpopular?Why are they unpopular? Several reasons:Several reasons:

Too many of them (back to Kafka)– not Too many of them (back to Kafka)– not coordinatedcoordinated

Too many reports, not binding, no real Too many reports, not binding, no real powerpower

Often politicized: HR CouncilOften politicized: HR Council General comments are useful (by General comments are useful (by

balanced experts)balanced experts)


Other universal bodiesOther universal bodies

International Criminal Court (ICC) - International Criminal Court (ICC) - Rome Statute of the International Rome Statute of the International Criminal CourtCriminal Court 1998 (since 2002 1998 (since 2002 effective) – after specialized tribunalseffective) – after specialized tribunals

International Labour Organization International Labour Organization 19191919

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