Attuazione delle risoluzioni del Consiglio di sicurezza contro il terrorismo e tutela giurisdizionale dei diritti fondamentali nell'ordinamento comunitario: la sentenza della Corte di giustizia relativa ai casi Kadi e Al Barakaat

2009 ◽  
pp. 55-84
Author(s):  
Pasquale Pirrone
Keyword(s):  
Human Rights ◽  
Security Council ◽  
Legal System ◽  
International Security ◽  
Fundamental Rights ◽  
Member States ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Un Security Council ◽  
Community Courts

- UN Security Council antiterrorism measures pose the classic problem to reconcile two different values: security and human rights protection. Furthermore, the implementation of Security Council resolutions gives rise to a multilevel phenomenon, which involves three legal systems (UN - EC - Member State) with different degrees of human rights protection. Particularly, while EC legal order provides for a judicial protection of fundamental rights, in the UN legal system there is no similar kind of protection. So, as far as the EC is concerned, there is the need to ensure its ordinary level and instruments of human rights protection and, at the same time, to enable the Member States to comply with their obligations deriving from UN legal system. Legal solutions to the problem to reconcile the abovementioned values and needs were pointed out, at first, by the Court of First Instance. It stated that EC is bound to abide by UN Security Council resolutions and, consequently, community courts cannot review the legality of the EC regulations implementing Security Council resolutions. They only can value, albeit indirectly, the lawfulness of these resolutions with regard to international peremptory norms. This approach clearly favours the international security and the observance of UN legal system obligations. The ECJ has reversed the abovementioned approach. It has stated that EC regulations implementing UN Security Council resolutions, as all the other community acts, are subjected to the EC principles concerning human rights and to the jurisdiction of community courts. Moreover, striking a dualistic attitude, it has stated that even if it declares the EC regulation implementing a Security Council resolution to be void, that does not compromise the validity and primacy of this resolution. This approach seems to favour human rights protection rather than the value of international security and the need for the Member States to comply with their obligations deriving from UN legal system. Nevertheless, some statements and, above all, some concrete solutions show that the Court does not neglect this value and this need.

1 The Court Over Sixty Years

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Peace Treaty ◽  
Member States ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Definition Of ◽  
The Individual ◽  
Violent Conflicts

This introductory chapter provides a background of the European Convention on Human Rights (ECHR), a multilateral treaty based on humanism and rule of law. Similar to the—albeit non-binding—Universal Declaration of Human Rights (UDHR), the ECHR is a document that marks a change in philosophy and gives a new definition of the responsibility of the State towards the individual. It fixes basic values in times of change and paves the way towards reconciliation in Europe. Unlike in a peace treaty, not all wartime enemies participate in its elaboration, but, one by one, all the European States accede to it, signalling their consent to the values fixed by a small community of States in the early 1950s. Seven decades later, forty-seven European States have ratified the Convention. Admittedly, the new start based on common values could not prevent the outbreak of violent conflicts between Member States. At the same time, the resurgence of anti-democratic tendencies could not be successfully banned in all Member States, but such tendencies could be stigmatized as grave human rights violations in binding judgments of the European Court of Human Rights (ECtHR). Thus, it is not surprising that the European model of human rights protection has been attractive and inspirational for other parts of the world. Nevertheless, there was and is a debate in some Member States to withdraw from the Convention as the Court’s jurisprudence is seen to be too intrusive on national sovereignty.

The normative framework of the EU’s commitment to human rights

2020 ◽  
pp. 79-116
Author(s):  
Chiara Altafin ◽  
Karin Lukas ◽  
Manfred Nowak
Keyword(s):  
Human Rights ◽  
Legal Framework ◽  
Fundamental Rights ◽  
European Convention ◽  
International Human Rights Law ◽  
Member States ◽  
Double Standards ◽  
Human Rights Protection ◽  
Normative Framework ◽  
The Eu

The chapter presents and assesses the various normative layers—domestic, European, regional, international—on which the European Union’s (EU’s) commitment to human rights is built. It analyses the interaction of EU primary law, general principles of law derived from constitutional traditions of Member States, and international human rights law, including relevant regional instruments such as the European Convention on Human Rights, the European Social Charter, and the Istanbul Convention. It is contended that, despite an impressive and pioneering normative framework on human rights, the EU currently faces a number of challenges that call for a strong stance on human rights realisation in all areas of its competence and influence. Enduring deficiencies in the relevant normative framework include the absence of a fully fledged EU competence to legislate in the area of human rights protection and the application of ‘double standards’ in the EU’s approach to human rights internally and externally, leading to a deep divide between internal and external policies guided by starkly different logics. Further areas of concern include the difficulties of the Charter of Fundamental Rights implementation in view of EU institutions and Member States’ competencies, which have become particularly apparent in the EU’s response to the Eurozone crisis and the arising tensions between EU and Member States’ austerity measures, as well as the uneven nature of the EU and Member States’ human rights obligations with regard to the international legal framework, leading to gaps and overlaps.

The Slippery Slope of UN Peacekeeping: Offensive Peacekeeping in Congo and Beyond

2016 ◽  
Vol 19 (1) ◽  
pp. 100-141 ◽  
Author(s):  
Diana Kearney
Keyword(s):  
Human Rights ◽  
Security Council ◽  
Slippery Slope ◽  
Human Rights Violations ◽  
Military Operations ◽  
Member States ◽  
Un Peacekeeping ◽  
Un Security Council ◽  
Self Defence ◽  
The Way

Fed up with the decades-old violence plaguing the DRC, the UN Security Council broke new ground by granting peacekeepers an offensive mandate to pursue rebels rather than waiting to react in self-defence. This transformation in UN military operations alarmed several States, concerned over a perceived loss of sovereignty and a weakening of the principle of non-intervention. To allay these fears, Resolution 2098’s drafters incorporated a provision expressly assuring Member States that offensive peacekeeping tactics in the DRC would not generate precedent for future UN action. However, examining past UN practice and ‘slippery slope’ theory alike reveals that explicit disavowal of precedent cannot guarantee that offensive peacekeeping will not be used as a template for future UN action. In fact, the incorporation of such language may foster the generation of a slippery slope in UN peacekeeping, ultimately paving the way for increased scope of UN intervention in situations of gross human rights violations. The article concludes by proposing a framework for how actors can manipulate slopes to generate or slow precedent for future UN action.

The EU’s Area of Freedom, Security and Justice: A Lack of Fundamental Rights, Mutual Trust and Democracy?

2009 ◽  
Vol 11 ◽  
pp. 53-85 ◽  
Author(s):  
Sionaidh Douglas-Scott
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Identity ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Arrest Warrant ◽  
Legal Accountability ◽  
To Come ◽  
Free Movement Of Persons ◽  
The Eu

AbstractThe EU’s ‘Area of Freedom, Security and Justice’ is a hugely important area covering criminal law, terrorism, immigration, visa control and civil justice, as well as the massive area of free movement of persons. What is clear, however, is that measures which fall within its scope have the capacity to alienate EU citizens rather than making them feel aware of their European identity in a positive sense. This chapter examines some of the measures taken by the EU in this broad field which cause particular concern, namely a lack of democratic and legal accountability as well as inadequate regard to human rights. It focuses in particular on two areas in which human rights protection in the EU has been undermined. The first is in the field of data protection. The second is in the field of suspects’ rights, particularly in the context of the European arrest warrant. The chapter concludes by considering why so many restrictions on freedom have been allowed to come about and suggests some possible solutions.

“Not Taking Rights Seriously”. Opting for the Primacy of eu Law over Broader Human Rights Protection

2015 ◽  
Vol 4 (2) ◽  
pp. 277-302
Author(s):  
Fisnik Korenica ◽  
Dren Doli
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
Protection Of Human Rights ◽  
The Relationship

The European Union (eu) accession to the Convention for the Protection of Human Rights and Fundamental Freedoms (echr) has been a hot topic in the European legal discourse in this decade. Ruling on the compliance of the Draft Agreement on eu accession to the echr with the eu Treaties, the Court of Justice of the eu (cjeu) came up with a rather controversial Opinion. It ruled that the Draft Agreement is incompliant with the eu Treaties in several respects. One of the core concerns in Opinion 2/13 relates to the management of horizontal relationship between the eu Charter of Fundamental Rights (ChFR) and echr, namely Article 53 ChFR and Article 53 echr. The article examines the Opinion 2/13’s specific concerns on the relationship between Article 53 ChFR and Article 53 echr from a post-accession perspective. It starts by considering the question of the two 53s’ relationship from the eu-law autonomy viewpoint, indicating the main gaps that may present a danger to the latter. While questioning from a number of perspectives the plausibility of the cjeu’s arguments in relation to the two 53s, the article argues that the Court was both controversial and argued against itself when it drew harshly upon these concerns. The article also presents three options to address the cjeu’s requirements on this issue. The article concludes that the cjeu’s statements on the two 53s will seriously hurt the accession project, while critically limiting the possibility of Member States to provide broader protection.

Assessing Human Rights in Russia: Not to Miss the Forest for the Trees A Response to Preclik, Schönfeld and Hallinan

2012 ◽  
Vol 37 (2-3) ◽  
pp. 349-356 ◽  
Author(s):  
Vladislav Starzhenetskii
Keyword(s):  
Human Rights ◽  
Soviet Union ◽  
Legal System ◽  
Transition Period ◽  
Russian Society ◽  
Human Rights Protection ◽  
Rights Protection ◽  
The Past ◽  
The Soviet Union ◽  
Implementation Of Standards

AbstractLooking fourteen years into the past, Russia has made enormous progress in reforming its legal system in order to ensure human-rights protection under the Convention. This process of reform is still ongoing. The causes of the existing difficulties in the area of human-rights protection are better explained in terms of difficulties with implementation of standards in the Russian legal system rather than any antagonism between Russian and European human-rights attitudes. There are several groups of violations of the ECHR that need to be analyzed separately because of the different nature of the problems. Some of them reflect structural and practical problems of the Russian legal system immanent in a transition period of reforms and of the dismantling of old regulations and attitudes; others may be accounted for by the lack of proper (efficient, adequate and balanced) measures and solutions to address the numerous new challenges that Russian society is facing after the collapse of the Soviet Union. There are many examples that provide evidence that Russia is trying to amend its legal and political system to meet the requirements of the Convention.

scholarly journals SUSPENSION AND EXPULSION OF MEMBERS OF THE COUNCIL OF EUROPE: DIFFICULT DECISIONS IN TROUBLED TIMES

2019 ◽  
Vol 68 (2) ◽  
pp. 443-476
Author(s):  
Kanstantsin Dzehtsiarou ◽  
Donal K Coffey
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
Financial Stability ◽  
Council Of Europe ◽  
Member States ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Current State ◽  
State Of Affairs

AbstractThe effectiveness and legitimacy of the Council of Europe can be undermined by the actions of Member States which fail to comply with their international law obligations of genuine cooperation with the organization. This article first briefly examines the practice of international organizations in applying sanctions such as expulsion and suspension to their members. It then explains why it is necessary to discuss potential sanctions that the Council can apply in the context of current controversies involving the Council and Member States. It will be argued that the scale and intensity of challenges distinguish the current state of affairs from other ‘problematic’ periods in the Council's history. It proceeds to outline the considerations that should be taken into account in deciding whether a Member State should be suspended or expelled. These considerations include the implications of sanctions on the legitimacy of the Council of Europe, the level of human rights protection and the financial stability of the organization.

The Council of Europe, Rights and Political Authority

2013 ◽  
Vol 21 (1) ◽  
pp. 118-134 ◽  
Author(s):  
Kundai Sithole
Keyword(s):  
Human Rights ◽  
Death Penalty ◽  
Political Authority ◽  
European Convention ◽  
Council Of Europe ◽  
Member States ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Regional Organisations ◽  
Post War

This paper examines the importance of human rights protection – in particular the European Convention on Human Rights – to the Council of Europe's survival as a political authority. Its underlying premise is that the proliferation of regional organisations in Europe in post-war Europe, and the creation of the Communities in 1958, contributed to a loss of a sense of purpose as to the Council of Europe's role in post-war Europe. Initial attempts to widen the scope of its political authority in relation to the Member States and other regional organisations were unsuccessful. It was, therefore, necessary for the Council of Europe to consolidate its existing mandate in ensuring the region's democratic security through human rights protection. Thus, led by its Parliamentary Assembly, Council of Europe institutions have, since 1949, provided the Member States with the necessary regional fora for examining and promulgating regional human rights legislation, such as the European Convention on Human Rights and its two additional protocols abolishing the death penalty.

II. Human Rights

2001 ◽  
Vol 50 (3) ◽  
pp. 690-701 ◽  
Author(s):  
Joe McMahon ◽  
Lammy Betten
Keyword(s):  
Human Rights ◽  
European Parliament ◽  
Fundamental Rights ◽  
Political Leaders ◽  
Human Rights Protection ◽  
Rights Protection

At the Nice Summit in December 2000, Europe's political leaders adopted the much-discussed EU Charter on Fundamental Rights in the form of a legally non-binding political declaration. It is the second such instrument in relation to human rights protection.1 The Presidency Conclusions to both the 1999 Cologne and Tampere Summits ordered the preparation of a draft Charter which was to be solemnly proclaimed by the European Parliament, the Commission and Council at the Nice Summit.2 It was only after that fact that “It will … have to be considered whether and, if so, how the Charter should be integrated into the treaties.”3

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