Chapter 3 | Lesson 3

Human Rights

Introduction to the International Dimensions of Law | Dr.iur. Thomas Thiede LL.B., LL.M. | [email protected]

Historical Development •

originally – nationalism

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modern ‘human rights law’, only post 1945

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UN Charter • •

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general obligations requiring UN Member States to respect human rights creation of a Human Rights Commission

Numerous UN international instruments Universal Declaration of Human Rights Genocide Convention 1948 • Convention on the Political Rights of Women 1952 • •

Standard Minimum Rules for the Treatment of Prisoners 1957 Convention on the Elimination of All Forms of Racial Discrimination 1965 • International Covenants on Civil and Political Rights and on Economic, Social, and Cultural Rights in 1966 • European Convention on Human Rights • Inter-American Commission on Human Rights in 1960 • American Convention on Human Rights in 1978 • •

Introduction to the International Dimensions of Law | Dr.iur. Thomas Thiede LL.B., LL.M. | [email protected]

Sources of Human Rights • • •

•

variety of sources; many kinds of materials, both international and national over twenty important multilateral treaties legally binding obligations for the parties (states) enforcement different from treaty to treaty ECHR: institutions of their own (European Court of Human Rights) • person alleging a violation of his/her human rights under the ECHR first has to litigate in the national court system; • he/she will eg have to call upon the Austrian Constitutional Court (VfGH) as the last instance in the national court system before he/she can appeal to the ECtHR • others: complaints filed with the appropriate political or juridical institutions by states against states • some complaint systems also include human rights organizations as complainants. •

Introduction to the International Dimensions of Law | Dr.iur. Thomas Thiede LL.B., LL.M. | [email protected]

Sources of Human Rights • •

• • •

• • •

Other examples: UN Charter • binding upon almost every country in the World • various UN sponsored human rights conventions (Int’l Covenants of Civil and Political Rights, Economic, Social, Cultural Rights, Convention on Racial Discrimination etc). not legally binding ‘other sources’ (‘soft law’) Universal Declaration of Human Rights 1948 international declarations, resolutions, and recommendations regarding international human rights adopted by the UN or other int’l organizations or conferences establish broadly recognized standards invoked in connection with human rights moral authority standards could develop into customary public int’l law, then legally binding Introduction to the International Dimensions of Law | Dr.iur. Thomas Thiede LL.B., LL.M. | [email protected]

Sources of Human Rights | ‘Soft Law’ •

Other examples: 1975 Final Act of the Conference on Security and Cooperation in Europe (Helsinki Accord) • UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment • UN Declaration on the Rights of the Child • Standard Minimum Rules for the Treatment of Prisoners •

Introduction to the International Dimensions of Law | Dr.iur. Thomas Thiede LL.B., LL.M. | [email protected]

Sources of Human Rights | National Layer •

national statutes and Constitutions – fundamental rights Austria: Staatsgrundgesetz 1867 (StGG) • note: sometimes limited to citizens

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citizens‘ rights do not bind the state with respect to its treatment of foreigners • strong tendency in interpretation of Austrian fundamental to open these fun-damental rights, that were formerly considered rights of citizens only, to non-nationals of Austria Jurisdiction by national and international institutions • Example: European Court of Human Rights in Strasbourg •

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Introduction to the International Dimensions of Law | Dr.iur. Thomas Thiede LL.B., LL.M. | [email protected]

Enforcement of Human Rights key problem: enforcement of human rights example: ECHR before the institutions in Strasbourg (ECtHR) • main effect of human rights treaties: reduction of the sovereign powers of the Member States • ECtHR reluctant to give the human rights a wider scope and meaning than a national court in the same situation • tendency to be rather conservative in the interpretation of human rights • Treaties other than the ECHR: • generally, much less effective enforcement system • example: Inter-American Court of Human Rights • consent to jurisdiction by a few states • generally open only to states as complainants and not to individuals • no enforcement – heavily rely on the voluntary compliance by states •

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Introduction to the International Dimensions of Law | Dr.iur. Thomas Thiede LL.B., LL.M. | [email protected]

Enforcement of Human Rights •

possible actions: within the national systems of the state concerned (direct application of the Member State itself • by other states in the course of international relations (one state trying to directly exercise its influence on the violating state) • by international bodies (institutions like int’l courts, commissions or committees created by the human rights convention to deal with complaints by states, human rights organizations and/or individuals) •

Introduction to the International Dimensions of Law | Dr.iur. Thomas Thiede LL.B., LL.M. | [email protected]

Chapter 4 | Lesson 1

European Law

Introduction to the International Dimensions of Law | Dr.iur. Thomas Thiede LL.B., LL.M. | [email protected]

European Law | What is the EU? — — — — — —

—

27 member states: 1951/1957: Belgium, Germany, France, Italy, Luxembourg, Netherlands 1973: Great Britain, Ireland und Denmark Greece (1981), Portugal und Spain (both 1986) 1995: Sweden, Finland und Austria 2004: Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia 2007: Romania and Bulgaria

European Law | What is the EU? 3-pillar model before the Lisbon Treaty (07/09)

EU EEC from 1993 EC ECSC (until 2002) EURATOM

common foreign and security policy (CFSP)

police and judicial cooperation in criminal matters (PJCC)

European Law | What is the EU? —

Reform Treaty of Lisbon (Lisbon Treaty 2007/2009)

—

The 3-pillars-model was abandoned on 1 December 2009 with the entry into force of the Treaty of Lisbon, when the EU obtained a consolidated legal personality.

—

TEU- Treaty on the European Union TFEU- Treaty on the Functioning of the European Union

—

European Law | What is the EU?

European Law | Aims of the EU, Art 3 TEU • • • • • •

Promotion of peace, its values and the well-being of its people Area of freedom, security and justice without internal frontiers Establishment of an internal market Establishment of an economic and monetary union Promote the values and interests of the Union in international relations Contribute to peace, security, sustainable development and the protection of human rights

European Law | Competences of the EU Principle of limited singular competence • No general competence for EU organs • EU-organs can only act within the limited areas of competence assigned it by the treaties

•

Introduction to the International Dimensions of Law, WS 2011/12, Univ.- Prof. Dr. Brigitta Lurger (LL.M. Harvard)

European Law | Competences of the EU 3 different categories of competences (Art 2 et seq TFEU) • exclusive competence: only the EU may legislate and adopt legally binding acts • shared competence: EU and Member States are allowed to act ! principle of subsidiarity • supporting, coordinating and complementary competence: Union supports, coordinates or supplements actions of the Member States • principle of proportionality in all competences •

European Law | What is European Law?

—

European law has to be divided into two different types of law:

—

“Primary“ European law (Primärrecht)

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“Secondary” European law (Sekundärrecht)

Reform Treaty of Lisbon •

Reform Treaty of Lisbon (Lisbon Treaty 2007/2009)

•

The 3-pillars-model was abandoned on 1 December 2009 with the entry into force of the Treaty of Lisbon, when the EU obtained a consolidated legal personality

•

TEU - Treaty on the European Union TFEU - Treaty on the Functioning of the European Union

•

Introduction to the International Dimensions of Law | Dr.iur. Thomas Thiede LL.B., LL.M. | [email protected]

European Law | Primary European Law EU#TREATY#1992

ROME%TREATY%1957 EEC#Treaty

EU#Treaty

!Single!European!Act,!1986

EEC#Treaty

as#amended#by#the# Single#European#Act

Treaty'of'Amsterdam,'1997

EU#Treaty

Treaty!of!Maastricht,!1992

as#amended#by# Amsterdam

EC#Treaty

as#amended#by# Maastricht

Treaty'of'Nice,'2001

Treaty!of!Amsterdam,!1997

EU#Treaty

as#amended#by#Nice

EC#Treaty

as#amended#by# Amsterdam

as#amended#by#Lisbon

Treaty!of!Nice,!2001

EC#Treaty

as#amended#by#Nice

TFEU

as#amended#by#Lisbon

© Lurger/Melcher

TEU

© Lurger/Melcher

Treaty'of'Lisbon,'2007

Introduction to the International Dimensions of Law | Dr.iur. Thomas Thiede LL.B., LL.M. | [email protected]

European Law | Secondary European Law •

Art 288 TFEU Regulation • binding in all its parts • direct effect in the Member States • no act of implementation required Directive • only binding in respect of its targeted and defined aims • details of implementation left to Member States

Chapter 4 | Lesson 2

European Law | European Organs

Introduction to the International Dimensions of Law | Dr.iur. Thomas Thiede LL.B., LL.M. | [email protected]

European Law | European Organizations Council of Europe (Europarat) Organization of Economic Cooperation and Development (OECD) • European Free Trade Area (EFTA) • European Economic Area (EEA) • Organization of Security and Cooperation in Europe (OSCE) • •

European Law | The Organs of the EU —

Articles 13-19 TEU, Articles 223 et seq TFEU — The European Council — The Commission — The European Parliament, EP — The Court of Justice of the European Union, CJEU — The European Central Bank, ECB — The European Court of Auditors