The European Union and human rights: An international law perspective

European Journal of International Law

Volumn 17, Issue 4, 2006, Pages 771-801

  Ahmed, Tawhida ^a   de Jesús Butler, Israel ^b  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

^b LANCASTER UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 33750201015     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chl029     Document Type: Article

References (290)

1. The first reference to human rights in one of the Community treaties was the Single European Act, 1986 in its preamble (OJ 1987 L 169/1).
2. If most of the examples used in this article relate to civil and political rights, rather than economic and social rights it is not because we wish to suggest that economic and social rights are not relevant to the EU. Rather it is because the ECJ has tended to look to the ECHR for inspiration, and most of the rights within that treaty are civil and political rights.
3. Alston and Weiler, 'An Ever Closer Union in Need of a Human Rights Policy, The European Union and Human Rights', in P. Alston (ed.), The EU and Human Rights (1999), (also published as 'An Ever Closer Union in Need of a Human Rights Policy', 9 EJIL (1998) 658);
4. M. Bell, Anti-discrimination Law and the European Union (2002);
5. P. Craig and G. de Búrca, EU Law, Text, Cases and Materials (3rd edn., 2003), chs 8-9
6. De Búrca, 'Fundamental Rights and the Reach of EC Law', 13 OJLS (1993) 283;
7. De Búrca, Convergence and Divergence in European Public Law: The Case of Human Rights', in P. Beaumont, C. Lyons, and N. Walker (eds), Convergence and Divergence in European Public Law (2002);
8. S. Douglas-Scott, Constitutional Law of the European Union (2002), at 431-478;
9. Everling, 'The Maastricht Judgment of the European Court and its Significance for the Development of the European Union', 14 YEL (1994) 1;
10. Eicke, 'The European Charter of Fundamental Rights - Unique Opportunity or Unwelcome Distraction', 3 European Human Rights Law Review (2000) 280;
11. Lord Goldsmith, 'A Charter of Fundamental Rights, Freedoms and Principles', 38 CMLRev. (2001) 1201;
12. Heringa and Verhey, 'The EU Charter: Text & Structure', 8 Maastricht Journal of European and Comparative Law (2001) 11
13. Lenaerts, 'Fundamental Rights in the European Union', 25 ELRev (2000) 570;
14. N. Neuwahl and A. Rosas, The European Union and Human Rights (1995);
15. O'Leary, 'The Court of Justice as a Reluctant Constitutional Adjudicator: An Examination of the Abortion Case', 16 ELRev. (1992) 138;
16. J. Shaw, Law of the European Union (3rd edn., 2000), ch. 9;
17. Von Bogdandy, 'The European Union as a Human Rights Organisation? Human Rights and the Core of the European Union', 37 CMLRev. (2000) 1307;
18. Weiler, 'Does Europe Need a Constitution? Reflections on Demos, Telos and the German Maastricht Decision', 1 ELJ (1995) 219;
19. Weiler and Fries, 'A Human Rights Policy for the European Community and Union: The Question of Competences', in Alston, supra note 3, at 147;
20. Weiler and Lockhart, 'Taking Rights Seriously: The European Court and its Fundamental Rights Jurisprudence', 32 CMLRev. (1995) 51 (part I) and 579 (part II);
21. Williams, 'Enlargement of the Union and Human Rights Conditionality: A Policy of Distinction?', 25 ELRev. (2000)601.
22. Treaty on European Union (TEU) (OJ (2002) C 325/1), Art. 46(d).
23. Case 29/69, Stauder v. Ulm [1969] ECR 4119;
24. Case 11/70, Internationale Handelsgesellschaft v. Einfuhr-und Vorratsstelle Getreide [1970] ECR 1125;
25. Case 4/73, Noldv. Commission [1974] ECR491;
26. Case 36/75, Rutili v. Minister for the Interior [1975] ECR 1219;
27. Case 44/79, Hauer v. Land Rheinland-Pfalz [1979] ECR 3727;
28. Case 5/88, Wachauf v. Germany [1989] ECR 2609;
29. Case C-13/94, P v. S and Cornwall CC [1996] ECR I-2143;
30. Case C-36/02, Omega [2004] ECR I-9609. For further reading on general principles and human rights, see Craig and de Búrca, supra note 3, at ch. 8;
31. T. Tridimas, The General Principles of EC law (1999);
32. J. Usher, General Principles of EC Law (1998).
33. CETS 5.
34. See supra note 5.
35. See para. 30 of the AG's Opinion, Case C-159/90, SPUC v. Grogan [1991] ECR I-4685. Similarly, AG Slynn has noted that 'the Convention provides guidelines for the Court in laying down those fundamental rules of law which are part of Community law, though the Convention does not bind, and is not part of the law of, the Community as such'. See Cases 60-61/ 84, Cinéthèque SA and Others v. Fédération Nationale des Cinémas Français [1986] 1 CMLR 365, at 379. The CFI made this express in Case T-347/94, Maye-Melnh of Kartongesellschaft mbH v. Commission [1998] ECR II-1751, para. 311;
36. Case T-112/98 Mannesmannrohren-Werke v. Commission [2001] ECR II-729, para. 59.
37. See, e.g., cases cited supra note 5.
38. See, e.g., Case C-94/2000, Roquette Frères SA v. Directeur Général de la Concurrence, de la Consommation et de la Repression des Fraudes (Commission of The European Communities, Third party) [2004] ICR 66, para. 23;
39. Cases 46/87 & 227/88, Hoechst AG v Commission [1989] ECR 2859, para. 13.
40. The following are some examples of rights which the ECJ has accepted as part of the Community's concept of fundamental rights: Freedom of expression - Case C 274/99, Connolly v. Commission [2001] ECR I-1611, Case C-340/00, Commission v. Kreik [2001] ECR I-10269;
41. freedom of religion - Case 130/75, Prais v. Council [1976] ECR 1589;
42. freedom of assembly - Stauder, supra note 5, Case C-112/00, Schmidberger [2003] ECR I-5659;
43. human dignity - Omega, supra note 5;
44. privacy - Case C-404/92P, X v, Commission [1994] ECR I-4737;
45. right to property - Hauer, supra note 5, Cases C 20/00 & C-64/00, Booker Aquacultur Ltd and Hydro Seafood GSP Ltd v, The Scottish Ministers [2003] ECR I-7411;
46. equality - Case 149/77, Defrenne III [1978] ECR 1365;
47. marriage - Case C-117/01, K.B., Judgment of 7 Jan. 2004; family life - Case C-60/00, Carpenter [2002] ECR I-6279, Case C-413/99, Baumbast [2002] ECR I-7091;
48. right to a judicial remedy - Case 222/84 Johnston v. Chief Constable of the RUC [1986] ECR 1651.
49. 999 UNTS 171. This is not to underestimate the International Covenant on Economic Social and Cultural Rights (ICESCR), 1966. Rather the ICCPR may be more relevant because it corresponds largely to the ECHR in the rights it enumerates, and so is more likely to be mentioned by the ECJ than the ICESCR.
50. E.g.,Case C-168/91, Konstantinidis v. Stadt-Altensteig [1993] ECR I-1191, where AG Jacobs referred to the ICCPR because the ECHR had no specific rule on name changes (see para. 35 of the AG's Opinion). In Case C-337/91, Van Gemert-Derks [1993] ECR I-5435, AG Darmon considered the ICCPR because it was expressly raised by the national court questioning its request for a preliminary ruling (see para. 2 of AG's Opinion). This attitude towards the ICCPR as a treaty of second resort by the AGs may be changing. See, e.g., Opinion of AG Tizzano, para. 95, in Case C-397/03, Archer Daniels Midland Company and Archer Daniels Midlands Ingredients Ltd v, Commission, 7 June 2005, referring to ICCPR Art. 14(7);
51. Opinion of AG Kokott, para. 41, in Case C-105/03, Criminal proceedings against Maria Pupino, 11 Nov. 2004.
52. For the most part where the ECJ does consider the ICCPR, it is as a prelude to finding that it is not relevant to the circumstances of the case: Case C-249/96, Grant v. South West Trains Ltd [1998] ECR I-621, para. 44 relating to ICCPR, Art. 2 (1);
53. Case C-60/92, Otto BV v. Postbank NV [1993] ECR I-5683, para. 11 relating to ICCPR, Art. 14;
54. Case 374/87, Orkem v. Commission [1989] ECR 3283, para. 31 relating to ICCPR, Art. 14. The CFI has been more ready to rely on the ICCPR in recent cases. See further infra.
55. Stauder, supra note 5;
56. Internationale Handelsgesellschaft, supra note 5;
57. A. Cassese, A. Clapham, and J. Weiler, Human Rights and the European Community. Vol. II: The Substantive Law (1991, at 58;
58. Everling, supra note 3;
59. Weiler, supra note 3.
60. See, e.g., Case 26/62, Van Gend en Loos [1963] ECR 1;
61. Case 6/64 Costa v. ENEL [1964] ECR 585;
62. Opinion 1/91 (First EEA Opinion) [1991] ECR 6079. The EU also has its own system of state liability.
63. See Arts 27 and 46 of the Vienna Convention on the Law of Treaties, 1969 (63 AJIL (1969) 875).
64. For a discussion of the 'monist' and 'dualist' approaches see Fitzmaurice, 'The General Principles of International Law Considered from the Standpoint of the Rule of Law', 92 RdC (1957-II) 5, at 70-80.
65. Case 26/62, Van Gend en Loos [1963] ECR 1;
66. Case 6/64, Costa v. ENEL [1964] ECR 585;
67. Case 106/77, Simmenthal [1978] ECR 629;
68. Case 213/89. Factortame I [1990] ECR I-2433.
69. Namely, the concerns of Germany and Italy. These have been expressed by the German Constitutional Court in Solange I [1974] 2 CMLR 540 and Solange II [1987] 3 CMLR 225 (Case C-69/85, Wünsche [1986] ECR 947). See also Brunner v. European Union Treaty [1994] 1 CMLR 57;
70. Bananas II Judgment, Order of 7 June 2000, 2 BvL 1/97 or 53 Neue Juristische Wochenschrift (2000) 3124. Views from Italy have been made explicit in Frontini v. Ministero delle Finanze [1974] 2 CMLR 372;
71. Dec. 170 of 8 June 1984 in SpA Granital v. Amministrazione delle Finanze and Spa Fragd v. Amminstrazione delle Finanze, Dec. 232 of 21 Apr. 1989 (1989)
72. RDL.72 E.g., Lawson, 'The European Convention on Human Rights and the European Communities - Towards a Responsibility Regime relating to the Conduct of International Organisations', PhD thesis, University of Leiden, 1999, at 55-126;
73. Pescatore, 'The Court of Justice of the Communities and the European Convention on Human Rights', in F. Matscher and H. Petzold (eds), Protecting Human Rights: The European Dimension, Studies in Honour of Gerard J Wiarda (1988);
74. Schermers, 'The European Communities Bound by Fundamental Human Rights', 27 CMLRev (1990) 249.
75. See, e.g., Alston, supra note 3;
76. A. Cassese, A. Clapham, and J. Weiler (eds), Human Rights and the European Community, Vol. I (1991);
77. Cassese, Clapham, and Weiler, supra note 15;
78. A. Clapham, Human Rights and the European Community: A Critical Overview (1991);
79. De Búrca, 'Beyond the Charter: How Enlargement Has Enlarged the Human Rights Policy of the European Union', 27 Fordham International Law Journal (2004) 679;
80. Engel, 'The European Charter of Fundamental Rights, A Changed Political Opportunity Structure and its Normative Consequences', 7 ELJ (2001) 151;
81. T. Hervey and J. Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights (2003);
82. De La Rochère and Dutheil, 'The EU and the Individual: Fundamental Rights in the Draft Constitutional Treaty', 41 CMLRev (2004) 345;
83. Lenaerts, 'Fundamental Rights to be Included in a Community Catalogue', 16 ELRev (1991) 367;
84. Peukert, 'The Importance of the European Convention on Human Rights for the European Union', in P. Mahoney et al. (eds.), Protecting Human Rights: The European Perspective (2000);
85. Von Bogdandy, supra note 3.
86. This is not to say that these commentators do not discuss international human rights law at all, but rather that they do not tend to discuss whether it imposes obligations directly upon the EU. It may be that scholarship has tended to concentrate more on this because the EU has progressively brought human rights into its internal regime, giving them a higher profile within the treaties (Arts 6 and 7 TEU) and with the Charter of Fundamental Rights.
87. We use the term intergovernmental organization broadly to refer to an 'inter-state body created by multilateral treaty... [with] what may be called a constitution... [and] organs separate from its members': C. F. Amerasinghe, Principles of Institutional Law of International Organizations (2nd edn., 2005), at 9-10.
88. ECJ,Case C-286/90, Anklagemyndigheden v. Peter Michael Poulsen and Diva Navigation Corp. [1992] ECR I-6019, para.9;
89. Case C-162/96, A. Racke [1998] ECRI-3655, para. 45;
90. International Court of Justice, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, [1980] ICJ Rep 73, at 89-90.
91. Amerasinghe, supra note 24, at 399-406;
92. M. Hirsch, The Responsibility of International Organizations Toward Third Parties, Some Basic Principles (1995), at 17;
93. P. Sands and P. Klein, Bowett's Law of International Institutions (2001), at 456;
94. H. Schermers and N. Blokker, International Institutional Law, Unity Within Diversity (4th edn., 2003), at §1572-1591;
95. K. Wellens, Remedies against International Organisations (2002), at 1;
96. N. White, The Law of International Organisations (2nd edn., 2005), at 216 ff;
97. A. Clapham, Human Rights Obligations of Non State Actors (2006).
98. WHO and Egypt Agreement, supra note 25, 89-90.
99. Wellens, supra note 26, at 1-2.
100. White, 'Towards a Strategy for Human Rights Protection in Post-Conflict Situations', in N. White and D. Klaasen (eds), The UN, Human Rights and Post Conflict Situations (2005), at 463, 464.
101. Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, 1986 (UN Doc. A. CONF. 129/15) (VCLT II). Although the VCLT II has not yet entered into force its provisions were merely intended to codify existing practice. See Yearbook of the International Law Commission (1982) Vol. II, Part Two, A/CN.4/SER.A/1982/Add.1 (Part 2), 12-17. See, e.g., ECT Arts 133, 174, 181, 181a, 300, and 310; TEU Art. 24.
102. Such as humanitarian law for peacekeeping action by the UN. See Glick, 'Lip Service to the Laws of War: Humanitarian Law and United Nations Armed Forces', 17 Michigan Journal of International Law (1995-1996) 53, at 55-67;
103. Hirsch, supra note 26, at 31-37;
104. Murphy, 'United Nations Military Operations and International Humanitarian Law: What Rules Apply to Peacekeepers?', 14 Criminal Law Forum (2003) 153;
105. Tittemore, 'Belligerents in Blue Helmets: Applying International Humanitarian Law to United Nations Peace Operations', 33 Stanford Journal of International Law (1997) 61, at 97-100;
106. White, supra note 26, at 216-219.
107. Art. 53 of both VCLT I and VCLT II;
108. Hirsch, supra note 26, at 30-31;
109. Schermers, supra note 21, at 250-251. The International Law Commission commentary on VCLT II, Art. 53 states: 'International organizations are created by treaties concluded between States... And it can hardly be maintained that States can avoid compliance with peremptory norms by creating an organisation.' See Yearbook of the International Law Commission (1982), Vol. II, Part Two, 56.
110. 'Customary international law is created by State practice. State practice means any act or statement from which views about customary law can be inferred; it includes physical acts, claims, declarations in abstracto (such as General Assembly resolutions), national law, national judgments and omissions.' It must be accompanied by opinio juris - the belief by the state that the practice is obligatory under international law. Akehurst, 'Custom as a Source of International Law', 47 BYbIL (1974-75) 53. On the possibility of persistently objecting to being subject to a rule of CIL see Charney, 'The Persistent Objector Rule and the Development of Customary International Law', 56 BYbIL (1985) 1. See also Pentassuglia, who underlines the significance of persistent objection in international law: G. Pentassuglia, La rilevanza dell'obiezione persistente nel diritto internazionale (1996).
111. VCLT I, Art. 34.
112. Note, however, that it is possible for a rule embodied in a treaty which has gained 'very widespread and representative participation' (i.e. a high proportion of states have become party thereto) to become part of CIL, since membership of the treaty may be considered evidence of state practice and opinio juris of itself. See North Sea Continental Shelf case (Federal Republic of Germany v. Denmark) [1969] ICJ Rep 3, at 42.
113. See supra note 31.
114. In the Woodpulp case the ECJ specifically addressed the arguments of the applicants who contested that it would be contrary to international law to permit the Commission to regulate conduct taking place outside the EC which merely had effects within the EC. The ECJ replied that because the impugned agreements were implemented within the EC, 'the Community's jurisdiction to apply its competition rules to such conduct is covered by the territoriality principle as universally recognized in public international law': Cases 89/85, 114/85, 116-117/85, 125-129/85, Ahlström Osakeyhtio et al. v. Commission (Woodpulp) [1988] ECR 5193, para. 18. See also Case C-327/91, France v. Commission [1994] ECR I-3641, at I-3674;
115. Cases 21-24/72, International Fruit Company v. Produktschap voor Groenten en Fruit [1972] ECR 1219, at 1226-1227;
116. Case 142/88 Hoesch AG v. Bergkohy [1989] ECR 3413, [1991] 2 CMLR 383, at 416.
117. Case C-162/96, Racke v. Hauptzollant Mainz [1998] ECR I-3655, para. 45: 'the European Community must respect international law in the exercise of its powers. It is therefore required to comply with the rules of customary international law when adopting a regulation suspending the trade concessions granted by, or by virtue of, an agreement which it has concluded with a non-member country.'
118. UN GA Res. 217 (III). Hannum, 'The Status of the Universal Declaration of Human Rights in National and International Law', 25 Georgia Journal of International and Comparative Law (1996) 287;
119. Henkin, 'Human Rights and State "Sovereignty"', 25 Georgia Journal of International and Comparative Law (1996) 31;
120. Kartashkin, 'Working Paper on the Observance of Human Rights by States Which Are Not Parties to United Nations Human Rights Conventions', Sub Commission on the Promotion and Protection of Human Rights, UN Doc. E/ CN.4/Sub.2/1999/29;
121. Kartashkin, 'Observance of Human Rights by States Which Are Not Parties to UN Human Rights Conventions', Sub Commission on the Promotion and Protection of Human Rights, UN Doc. E/CN.4/Sub.2/2000/2;
122. B. Ramcharan, The Concept and Present Status of the International Protection of Human Rights, Forty Years after the Universal Declaration (1989);
123. O. Schachter, International Law in Theory and Practice (1991), at 335-345;
124. Sohn, 'The New International Law: Protection of the Rights of Individuals Rather than States', 32 American University Law Review (1982) 1.
125. East Timor case (Portugal v. Australia) [1995] ICJ Rep 90, at 101.
126. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide [1951] ICJ Rep 15, at 23.
127. Barcelona Traction Light and Power Co. Ltd. (Belgium v. Spain) [1970] ICJ Rep 3, at 32, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 [1971] ICJ Rep 16, at 57.
128. Diplomatic and Consular Staff in Tehran [1980] ICJ Rep 3, at 42.
129. Barcelona Traction case, supra note 42, at 47.
130. Ibid., at 32.
131. For instance, significant under-representation of some racial groups in EU institutions, or in EU projects, may arguably violate protection against racial discrimination.
132. See also Art. 48 of the ILC Draft Articles on State Responsibility and J. Crawford, The International Law Commission's Articles on State Responsibility (2002), at 276-280. See further infra.
133. According to Art. 64 VCLT I a norm of jus cogens will invalidate conflicting treaty provisions. See also R. Jennings and A. Watts (eds.), Oppenheim's International Law, Vol. I Peace, Parts 2 to 4 (9th edn., 1992), at 4 ff.;
134. White and Klaasen, 'An Emerging Legal Regime', in White and Klaasen, supra note 29, 1, at 7.
135. European Court of Human Rights: Al-Adsani v. UK (2001) 34 EHRR 273, para. 61. International Criminal Tribunal for the Former Yugoslavia: Prosecutor v. Furundzija Case IT-95-17/I-T, 38 ILM (1999) 317, para. 144.
136. Inter-American Commission on Human Rights: Victims of the Tugboat '13 de Marzo' v. Cuba, Report No. 47/96, Case 11.436, para. 79.
137. Inter-American Court of Human Rights: Advisory Opinion OC-18/03, 17 Sept. 2003, IACtHR Series A 18 (2003), para. 101.
138. Inter-American Court of Human Rights: Aloeboetoe v Suriname, IACtHR Series C No 15, 1.2 IHRR 208 (1994) para. 57.
139. Case T-315/01, Yassin Abdullah Kadi v. Council and Commission 21/9/05 [hereinafter Kadi].
140. Case T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council and Commission 21/9/05 [hereinafter Yusuf].
141. Art. 48 of the UN Charter imposes an obligation on all Members of the UN 'directly and through their action in the appropriate international agencies of which they are members' to implement decisions of the Security Council adopted to preserve international peace and security under Chapter VII of the Charter'.
142. Kadi, supra note 53, at paras 10-36. Yusuf, supra note 54, at paras 10-41. See SC Resolutions: 1267 (1999), 15 Oct. 1999; 1333 (2000) 19 Dec. 2000; 1390 (2000), 16 Jan. 2002; 1452 (2002), 20 Dec. 2002; 1455 (2003), 17 Jan. 2003. See Common Positions: 1999/727/CFSP, 15 Nov. 1999 (OJ 1999 L 294/1); 2001/154/CFSP, 26 Feb. 2001 (OJ 2001 L 57/1); 2002/ 402/CFSP, 27 May 2002 (OJ 2002 L139/4); 2003/140/CFSP, 27 Feb. 2003 (OJ 2003 L53/62). Regulations: 337/2000 14 Feb. 2000 (OJ 2000 L 43/1); 467/ 2001, 6 Mar. 2001 (OJ 2001 L 67/1); 2062/2001, 19 Oct. 2001 (OJ 2001 L 277/25); 881/2002, 27May 2002 (OJ 2002 L 139/9); 561/2003, 27 Mar. 2003 (OJ 2003 L 82/1).
143. Kadi, supra note 53, at paras 37 and 59.
144. Yusuf, supra note 54, at para. 284.
145. Kadi, supra note 53, at paras 226-231.
146. Yusuf, supra note 54, at paras 277-282.
147. Kadi, supra note 53, at paras. 241, 287.
148. Yusuf, supra note 54, at paras. 292, 342. As noted above, the ECJ has customarily relied more on the ECHR.
149. E.g., 1982 United Nations Convention on the Law of the Sea (21 ILM (1982) 1261) is open to membership by states and IGOs. See VCLT II. See the EU's 'Agreement Database' for a list of treaties to which the EC is party, available at http://ue.eu.int/cms3_fo/ showPage.asp?lang=en&id=252&mode=g&name, visited 6 Jan. 2006.
150. The Treaty Establishing a Constitution for Europe, 16 Dec. 2004, OJ 2004 C 310/01, Art. I-9 (2) would oblige the EU to accede to the ECHR. Art. 17 of Protocol 14 to ECHR, Amending the Control System of the Convention, CETS No. 194, which will amend Art. 59 of the ECHR to permit the EU to accede. Note also that the EU is currently engaged in negotiations on the draft International Convention on the Promotion and Protection of the Rights and Dignity of Persons with Disabilities, to which it may become a party, given its competence in this area under Art. 13 ECT. See EU Annual Report on Human Rights 2005, 4.13, available at http://bookshop.eu.int/eubookshop/FileCache/PUBPDF/QCAA05001ENC/ QCAA05001ENC_002.pdf, visited 29 Mar. 2006.
151. Opinion 2/94 Accession by the Community to the European Convention on Human Rights [1996] ECR I-1759, paras. 23-36.
152. See White, supra note 26, at 219-224.
153. 993 UNTS 3.
154. Concluding Observations on Ireland, E/C.12/1/Add. 77, 5 June 2002, para. 37. See also Concluding Observations on UK, E/C.12/1/Add.79, 5 June 2002, para. 26;
155. Concluding Observations on Sweden, E/C.12/1/Add.70, 30 Nov. 2001, para. 24.
156. See, e.g., ECnHR Decision M & Co. v. Federal Republic of Germany, App. No. 13258/87, 9 Feb. 1990;
157. ECnHR Decision Heinz v. the Contracting States party to the European Patent Convention insofar as they are High Contracting Parties to the European Convention on Human Rights, App. No. 21090/92, 15 Oct. 1992;
158. ECtHR Senator Lines GmbH v. The Fifteen Member States of the EU, App. No. 56672/00, 10 Mar. 2004;
159. ECtHR Emesa Sugar NV v. Netherlands, App. No. 62023/00, 13 Jan. 2005;
160. ECtHR Case of Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Şirketi v. Ireland, App. No. 45036/98, 30 June 2005;
161. ECtHR Case of Capital Bank Adv. Bulgaria, App. No. 49429/99, 24 Nov. 2005.
162. Heinz Decision, supra note 66;
163. ECtHR Matthews v. UK, App. No. 24833/94, 18 Feb. 1999, para. 32. The ECtHR seems to be prepared to offer a generous interpretation of 'equivalent protection'. For example in the Bosphorus case, supra note 66, at paras. 159-165, it found that the standing available to individuals to review the legality of EC law (in particular through Art. 230 (formerly 177) ECT) offered 'equivalent protection' to that available under the ECHR. This is a questionable finding given that the ECJ itself has impliedly indicated that the restrictions on individual standing in EC law probably do not conform with Art. 6 ECHR. See Case C-50/00, Unión de Pequeños Agricultores v. Council [2002] ECR I-6677, paras 39-45. For an analysis of the Bosphorus ruling, see Costello, 'The Bosphorus ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe', 6 HRLR (2006) 87.
164. ECtHR Case of Capital Bank Ad v. Bulgaria, App. No. 49429/99, 24 Nov. 2005, para. 111;
165. Bosphorus case, supra note 66, at para. 154.
166. Matthews case, supra note 67, at para. 34. Similarly Bosphorus case, supra note 66, at para. 153.
167. On the existence of joint liability for IGOs and their Member States see International Law Commission, Report on 56th Session, 2004, A/59/10, 99-103;
168. Hirsch, supra note 26, at 64-65;
169. Wellens, supra note 26, at 52-53;
170. White, supra note 26, at 219-224.
171. ECnHR Decision Segi and Gestoras Pro-Amnistía v. the Fifteen States of the EU App. Nos. 6422/02; 9916/02, 23 May 2002;
172. Matthews case, supra note 71.
173. The ECnHR and ECtHR have held that they are 'not competent ratione personae to examine the proceedings before or decisions of organs of the European Communities, the latter not being a Party to the European Convention'. Heinz decision, supra note 66. Similarly the ECtHR, Matthews case, supra note 67, at para. 32;
174. Bosphorus case, supra note 66, at para. 152.
175. Art. 307 appears to replicate the rule established in the Vienna Convention on the Law of Treaties, Art. 30(4)(b) which provides that a later treaty cannot supervene an earlier treaty in relation to obligations owed towards third parties.
176. Case 812/79, Attorney-General v. Burgoa [1980] ECR 2787, at para. 6.
177. 557 UNTS 143, 638 UNTS 308, 892 UNTS 1119. See preamble, para. 2 and Arts 1 (3). 55, 56, 13(1)(b), 62(2), and 68.
178. There are, of course, several other UN-sponsored human rights treaties which, combined with the ICCPR, are considered to form the 'core' of universal human rights protection. Most or all of the EU Member States are also party to these instruments: The ICESCR (see supra), the Convention on the Elimination of All Forms of Racial Discrimination (660 UNTS 195), the Convention on the Elimination of Discrimination Against Women (1249 UNTS 13), the Convention Against Torture (1465 UNTS 85), and the Convention on the Rights of the Child (1577 UNTS 3).
179. In this sense the UN Human Rights Committee has noted that human rights treaties 'are not a web of inter-State exchanges of mutual obligations. They concern the endowment of individuals with rights. The principle of inter-State reciprocity has no place.' See General Comment 24, in 'Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies', HRI/GEN/1/ Rev.7, 12 May 2004, 165, para. 17. The ECJ has also acknowledged that treaties conferring rights on individuals should still be considered inter-state in nature for the purposes of Art. 307. See, e.g., Case C-158/91, Levy [1993] ECR I-4287.
180. In the Barcelona Traction case, supra note 42, at 32, the ICJ found that the 'rules concerning the basic rights of the human person' in international law were erga omnes in nature. Similarly the UN Human Rights Committee, responsible for monitoring the implementation of the ICCPR, has stated that 'every State party has a legal interest in the performance by every other State party of its obligations' under the ICCPR. See General Comment 31, in 'Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies', HRI/GEN/ 1/Rev.7, 12 May 2004, 192, para. 2.
181. See decisions of the ICJ in the Barcelona Traction case, supra note 42, at 32;
182. East Timor, supra note 39, at 102. See also Art. 48 of the ILC Draft Articles on State Responsibility, and Crawford, supra note 47, 276-280.
183. Several human rights treaties contain state complaint procedures where one party considers another to have breached any provisions therein. This is the case, for instance, with the ICCPR (Arts 41-43), the International Convention on Racial Discrimination (Arts 11-13, CAT (Art. 21), Convention on Migrant Workers (Art. 74), ECHR (Art. 33).
184. 'Article 5 of the Treaty provides that the Member States must take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty. If, therefore, the application of a provision of Community law is liable to be impeded by a measure adopted pursuant to the implementation of a bilateral agreement, even where the agreement falls outside the field of application of the Treaty, every Member State is under a duty to facilitate the application of the provision and, to that end, to assist every other Member State which is under an obligation under Community law': Case 235/87, Annunziata Matteucci v. Communauté française of Belgium and Commissariat général aux relations internationales de la Communauté française de Belgique [1988] ECR 5589, at para. 19.
185. International Fruit Company case, supra note 37, at paras 11-13.
186. Case C-124/95, Centro-Com [1997] ECR I-81, at para. 56.
187. Ibid., at para. 61.
188. It is arguable that this clause must be applied only exceptionally: See Azoulai, 'The Acquis of the European Union and International Organisations', 2 ELJ (2005) 196, at 211. Azoulai states that the flexibility in Art. 307 'must be the exception, rather than the rule'. This is especially so as at the same time Art. 307 further requires Member States to 'take all appropriate steps to eliminate' any incompatibilities which may have arisen in these circumstances. Thus by Art. 307 the ECT also expresses a clear preference for Member States to resolve conflicting obligations in favour of rules deriving from the EU where this is possible. This would suggest that some of the Member
189. Kadi, supra note 53.
190. Yusuf, supra note 54.
191. Art. 103 of the UN Charter reads: 'In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.'
192. Kadi, supra note 53, at para. 181.
193. Yusuf, supra note 54, at para. 231.
194. Kadi, supra note 53, at para. 190.
195. Yusuf, supra note 54, at para. 240.
196. Kadi, supra note 53, at para 224.
197. Yusuf, supra note 54, at para. 254.
198. Art. 1(3) of the UN Charter states that among the purposes of the UN are to 'achieve international cooperation... in promoting and encouraging respect for human rights and for fundamental freedom for all'. The UN Charter's human rights provisions are phrased in terms of encouraging cooperation to promote human rights. Arts 55 and 56 of the Charter, for instance, provide that all Member States 'pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of... universal respect for, and observance of, human rights'. Over time this provision has been interpreted by the General Assembly of the United Nations to disclose a legal obligation on UN Member States to implement human rights guarantees domestically. The GA has frequently used this wording: 'all Member States have an obligation to promote and protect human rights and fundamental freedoms as stated in the Charter of the United Nations and elaborated in the Universal Declaration of Human Rights, the International Covenants on Human Rights and other applicable human rights instruments.' See, e.g., GA Resolutions addressed to Bosnia and Herzegovina, Croatia, Serbia-Montenegro (53/163, 25 Feb. 1999, 54/184, 29 Feb. 2000), Cuba (47/ 139, 18 Dec. 1992; 48/142, 20 Dec. 1993; 49/200, 23 Dec. 1994; 50/198, 22 Dec. 1995; 51/113, 12 Dec. 1996; 52/143, 6 Mar. 1998) Democratic Republic of Congo (53/160, 9 Feb. 1999; 55/117, 12 Mar. 2001; 56/173, 27 Feb. 2001) Iran (52/142, 6 Mar. 1998), Iraq (52/141, 6 Mar. 1998), Myanmar (16/132, 17 Dec. 1991; 47/144, 18 Dec. 1992; 48/150, 20 Dec. 1993; 49/197, 23 Dec. 1994; 50/194, 22 Dec. 1995; 51/117, 12 Dec. 1996; 52/137, 3 Mar. 1998; 53/162, 25 Feb. 1999; 54/186, 29 Feb. 2000; 55/112, 1 Mar. 2001; 56/231, 28 Feb. 2002), Nigeria (52/144, 6 Mar. 1998; 53/ 161, 25 Feb. 1999), Sudan (54/182, 28 Feb. 2000; 55/116, 12 Mar. 2001; 56/175, 28 Feb. 2002).
199. On the theory of the hierarchy of norms see H. Kelsen, Pure Theory of Law, (transl. M. Knight, 1967).
200. 'Those principles are binding on the Members of the United Nations as well as on its bodies.' Kadi, supra note 53, at paras 228-230;
201. Yusuf, supra note 54, at paras 279-282.
202. Kadi, supra note 53, at para. 229.
203. Yusuf, supra note 54, at para. 280.
204. Kadi, supra note 53, at paras 241, 287. Yusuf,
205. Yusuf, supra note 54, at paras 292, 342.
206. Case 812/79 Attorney-General v. Burgoa [1980] ECR 2787, at 2808.
207. As discussed above in relation to cases brought against EU Member States at the ECtHR.
208. See Schermers and Blokker, supra note 26, at §1574.
209. Cheyne, 'International Agreements and the European Community Legal System', 19 ELR (1994) 581, at 587;
210. D. McGoldrick, International Relations Law of the European Union (1997), at 121-123;
211. Kuyper, 'The Community and State Succession in Respect of Treaties', in D. Curtin and T. Heukels (eds.), Institutional Dynamics of European Integration: Essays in Honour of H. G. Schermers (1994), ii, 640;
212. Schermers, supra note 21, 251-252.
213. International Fruit Company case, supra note 37, reaffirmed in Case 38/ 75, Douaneagent der NV Nederlandse Spoorwegen v. Inspecteur der invoerrechten en Accijnzen [1975] ECR 1439;
214. Cases 267/81 & 269/81, Amministrazione delle Finanze dello Stato v. SPI and SAMI [1983] ECR 801. 55 UNTS 194. Replaced by the World Trade Organization in 1995. For general information see http://www.wto.org, visited 28 June 2005.
215. International Fruit Co. case, supra note 37, at para. 18.
216. Pescatore, 'External Relations in the Case-Law of the Court of Justice of the European Communities', 16 CMLRev (1979) 615, at 637-638.
217. 347 UNTS 127. See also Douaneagent case, supra note 96, para 16, where the ECJ affirmed that 'so far as fulfilment of the commitments provided for by GATT is concerned, the Community has replaced the Member States'. At para. 21 it repeated this in relation to the Convention on Nomenclature.
218. 486 UNTS 157. Replaced by the 1980 Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries, Crand 8474. Cases 3, 4, & 6-76 Kramer [1976] ECR 1279.
219. Kadi and Yusuf cases, supra notes 53 and 54.
220. Kadi, at paras 198, 203-204.
221. Yusuf, at paras 248, 253-254.
222. Meessen, 'The Application of Rules of Public international Law within Community Law', 13 CMLRev (1976) 484, at 489.
223. See, e.g., International Fruit case, supra note 37.
224. Meessen, supra note 108, at 490.
225. See, e.g., Barber, 'The Limited Modesty of Subsidiarity', 11 ELJ (2005) 308 Dashwood, 'The Relationship between the Member States and the European Union/European Community', 41 CMLRev (2004) 335.
226. Schermers, supra note 21, at 251-252.
227. Though a problem here is that France did not ratify the ECHR until 1974.
228. See supra note 75.
229. Austria, Cyprus, Czech Republic, Denmark, Estonia, Finland, Hungary, Latvia, Lithuania, Malta, Poland, Portugal, Slovakia, Slovenia, Spain, and Sweden.
230. See 'Multilateral Treaties Deposited with the Secretary-General' (ST/LEG/ SER/E/19), available at http://www.ohchr.org/english/countries/ ratification/4.htm, visited 9 Jan. 2006.
231. In respect of shared competence it would appear to be a case of applying the concept of subsidiarity and the doctrine of pre-emption on a case-by-case basis, in order to assess precisely which powers Member States had delegated. See Barber, supra note 111, and Dashwood, supra note 111. On a recent example of the ECJ's consideration of a delimitation of competence see Press Release No 10/06 of 7 Feb. 2006 on Opinion 1/03 of the ECJ, available at http://www.curia.eu.int/en/actu/ communiques/cp06/aff/cp060010en.pdf, visited 30 Mar. 2006.
232. Although the CH has extended this category of jus cogens to human rights generally, it is more likely to have a more limited scope. Nonetheless there are already a not inconsiderable number of rights that are acknowledged to exist in CIL and as rules of jus cogens.
233. See Convent 49, Explanations Relating to the Charter of Fundamental Rights of the European Union, CHARTER 4473/00, available at http://www.europa.eu.int/charter/pdf/04473_en.pdf, visited 30 June 2005.
234. See also De La Rochere, 349;
235. Lord Goldsmith, 'The Charter of Rights - A Brake Not an Accelerator' [2005] European Human Rights Law Review 473, at 474.
236. The reference to minority rights is only exemplary. There may be other rights that fall outside the general principles of EU law, but would come into play, such as for instance some social or cultural rights that are not currently recognized as general principles of EU law.
237. Note, however, that the ECHR in Protocol 12 now secures the prohibition on discrimination as a free-standing right, rather than being parasitic on the enjoyment of other rights as was previously the case. Among the grounds (as in the original Art. 14 ECHR) is protection against discrimination on the basis of 'association with a national minority'. See Khaliq, 'Protocol 12 to the European Convention on Human Rights' [2001] Public Law 457.
238. '[The very existence of Article 27 indicated that ethnic, linguistic or religious minorities possess special rights in addition to other human rights... specific protective measures are indispensable according to the situation of every particular group... [E]very State is obliged to provide such groups with the legal foundations to preserve their specific ethnic, religious and cultural identity': Hailbronner, 'The Legal Status of Population Groups in a Multinational State under Public International Law', in Y. Dinstein and M. Tabory (eds.), The Protection of Minorities and Human Rights (1992), 117, at 134. See also Pentassuglia, 'Minority Issues as a Challenge in the European Court of Human Rights: A Comparison with the Case Law of the UN Human Rights Committee' [2003] German Yearbook of International Law 401 and idem, 'Inside and Outside the European Convention: The Case of Minorities Compared', Baltic Yearbook of International Law (2006, forthcoming). See also General Comment 23 of the UN Human Rights Committee (HRC), responsible for monitoring correct implementation of the ICCPR, in Compilation of General Comments and General Recommendations Adopted By Human Rights Treaty Bodies, UN Doc. HRL/GEN/1/Rev.7, 12 May 2004.
239. OJ 2002 C 325/1, OJ 2003 L 236/17.
240. Opinion 2/94 Accession by the Community to the European Convention on Human Rights [1996] ECR I-1759, para. 27. Though note specific provisions on non-discrimination discussed supra.
241. Council Directive 75/117/EEC of 10 Feb. 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45/19) and Council Directive 76/206/EEC of 9 Feb. 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions (OJ 1976 L 39/ 40).
242. Current Art. 141 ECT.
243. Grant case, supra note 14, at para. 45.
244. Ibid., at paras. 43-47.
245. Weiler and Fries, supra note 3, 147, at 154 ff.
246. Case C-68/95, [1996] ECR I-6065.
247. At para. 40.
248. CESCR, The Right to the Highest Attainable Standard of Health (Art. 12), General Comment 14, para. 33. See also CESCR, The Right to Education (Art. 13), General Comment 13, para. 46, CESCR, The Right to Adequate Food (Art. 11), General Comment 12, para. 15. See Compilation of General Comments, supra note 77.
249. While they are now dealt with separately, there is often considerable overlap and fluidity between them.
250. CESCR, The Right to Water, General Comment 15, para 21. See also the same views expressed in The Right to Adequate Food, General Comment 12, para 15;
251. The Right to the Highest Attainable Standard of Health, General Comment 14, paras 33 and 34. See Compilation of General Comments, supra note 77.
252. CESCR, General Comment 12, supra note 134.
253. Steiner and Alston point out that for many, but not all, rights the duty to respect falls upon individuals and non-state actors: H. Steiner and P. Alston, International Human Rights in Context, Law Politics and Morals (2nd edn., 2000), at 182.
254. De Witte, 'The European Community and its Minorities', in C. Brolmann et al. (eds), Peoples and Minorities in International Law (1993), 167, at 179.
255. Nevertheless, it may require the existence of legal provisions in the first place obliging non-interference: See X & Y v. Netherlands, ECHR Series A No. 91 (1985) at 23, and resolutions of the CESCRs, cited in M. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (1995), at 112.
256. Steiner and Alston, supra note 136, at 182.
257. E.g., CESCR, General Comment 15, para. 23, supra note 134.
258. 'There is a clear responsibility on states under international law, which extends beyond violations by those acting on behalf of the state and its organs, such as police officers, military personnel and security forces': Amnesty International, Respect, Protect, Fulfil - Women's Human Rights, State Responsibility for Abuses by 'Non-State Actors', Sept. 2000, At Index: IOR 50/01/00 at 2. In relation to the ECHR, Keir Starmer QC points to three theoretical bases for the acceptance of positive obligations (which would include actions to prevent breaches by third parties): Art. 1 ECHR requiring states to 'secure' a right; the principle that Convention rights must be practical and effective; and Art. 13 requiring effective remedies: K. Starmer, European Human Rights Law (1999), at ch. 5. The development of positive obligations by the ECtHR seems to be primarily justified by the need to make rights 'practical and effective': A. Mowbray, The Development of Positive Obligations under the European Court of Human Rights (2004), at 221.
259. Amnesty International, supra note 141, at 5.
260. See HRC General Comment 31, para. 8 in Compilation of General Comments, supra note 77.
261. CESCR General Comment 14, para. 33 in Compilation of General Comments, supra note 77.
262. CESCR, General Comments 12, at para. 15, and 14, at paras 36-37, supra note 134 (emphasis in original).
263. See for instance in relation to food, Art. 11(2) of the ICESCR, which reads: 'the States Parties to the present Covenant... shall take... the measures... which are needed... to improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and milisation of natural resources...'.
264. Budlender, 'Justiciability of Socio-Economic Rights: Some South African Experiences', in Y. Ghai and J. Cottrell, Economic, Social and Cultural Rights in Practice (2004), 33, at 37.
265. Steiner and Alston, supra note 136, at 184. This necessarily implies a degree of public expenditure.
266. Eide, 'Asbjorn Report on the Right to Adequate Food as a Human Right', UN Doc. E/CN.4/Sub.2/1987/23.
267. Craven, supra note 138, at 109;
268. Scott and Mecklem, 'Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution', 14 Uni. Pennsylvania Law Rev. (1992) 1, at 73-84;
269. Budlender, 'Justiciability of Socio-Economic Rights: Some South African Experiences', in Ghai and Cottrell, supra note 147, at 33. H. Shue, Basic Rights: Subsistence, Affluence and US Forign Policy (2nd edn., 1996), at 52-53;
270. Van Hoof, 'The Legal Nature of Economic, Social and Cultural Rights, A Rebuttal of Some Traditional Views', in P. Alston andK. Tomasevski, The Rights to Food (1984), at 97, 106-107. It is currently applied by the UN's Committee on Economic, Social and Cultural Rights (CESCR) in its work supervising the implementation of and elaborating on the meaning of the ICESCR 1966. See, e.g., CESCR General Comments 11-15, in Compilation of General Comments, supra note 77.
271. See supra note 127.
272. CEDAW General Comments 24 and 25, in Compilation of General Comments, supra note 77.
273. The need to enumerate rights in this way has probably arisen with economic and social rights because of the perceived difficulty in quantifying the content of the obligations incumbent on the state. This typology has allowed the CESCR to be more explicit in enumerating state obligations to their fullest extent.
274. E.g., Scott and Macklem state that '[o]ver the decades, the United Nations has invested considerable energy in developing the idea of a multilayered obligations structure that may potentially be generated for any right whether it be a civil liberty or a social right': Scott and Mecklem, supra note 150, at 73.
275. also Alston and Steiner, supra note 136;
276. Amnesty International, supra note 141;
277. McCrudden, 'Main-streaming Human Rights', in C. Harvey (ed.), Human Rights in the Community, Rights as Agents for Change (2005), at 9, 12, and 14. Craven, supra note 138, at 110;
278. K. Tomasevski, Women and Human Rights (1993), at 107.
279. For a review of the relevant ECtHR case law see Mowbray, supra note 141. For the HRC, see generally Joseph, Schultz, and Castan and General Comment 23, at paras 6.1-6.2, in Compilation of General Comments, supra note 77.
280. The ECHR Art. 2 requires a state to 'secure everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention'. The American Convention on Human Rights Article 1 requires states 'to ensure to all persons subject to their jurisdiction the free and full exercise' of the rights listed in the Convention and Article 2 more explicitly requires states to carry out 'such legislative or other measures as may be necessary to give effect to those rights and freedoms'. The ICCPR essentially replicates this at Art. 2.
281. Nachova et al. v Bulgaria, App. Nos. 43577/98 and 43579/98, 6 July 2005, para. 160.
282. Ibid.
283. HRC General Comment 23 in Compilation of General Comments, supra note 77, at para. 7.
284. Bulacio v. Argentina, Series C No. 100, para. 142.
285. Villagran Morales et al. case (the 'Street Children' Case), Series C No. 63, para. 144.
286. Juridical Condition and Human Rights of the Child, Advisory Opinion 17, OC-17/2002, para. 86.
287. See, e.g., Weiler and Alston, supra note 3, at 23-24: 'it is clear that within carefully delineated boundaries, the Community and the Union do enjoy the necessary jurisdiction to enact a comprehensive and meaningful policy... [C]onsider some of the areas in which the Community has assumed exclusive competence, such as major aspects of the Common Commercial Policy, of the Common Agricultural Policy (which often implicate rights to property), or of the Single Market concerning the free movement of labour. It seems self-evident that in those areas it is only the Community which could reasonably be considered to be the custodian of human rights - in the same way that the Member States are custodians of human rights in the vast areas of state jurisdiction, like criminal law, which are largely outside Community jurisdiction.'
288. Ibid., at 27.
289. E.g., Yusuf and Kadi cases, supra notes 53 and 54.
290. International Fruit case, supra note 37.