Course 7

Question 1

What is the European Social Charter?

Answer 1

• Other conventions that might be important: European Social Charter of 1961, revised by the 1996 Charter: very specific one: list of social and economic rights that are conceived of as aims of the policies of states.
  
  • Also a minimum number of rights that states should commit to respect but they can commit to respect more of them of course. Binding obligations.

Question 2

What is the supervision mechanism of the European Social Charter and the monitorig issues?

Answer 2

• Supervision mechanism:
  • Not a court but the European committee on social and economic rights which in Turin.
• Monitoring issues:
  • State reporting and additional protocol with a collective complain mechanism  an individual applicant is not allowed to go to the Turin committee = only for recognized NGO’s, recognized associations, typically also trade unions and employer associations that can go to the committee. So, there is a strong collective dimension.

Question 3

What was data protection treaty?

Answer 3

• Already in 1981: The Council of Europe was concerned with data processing, now everyone with GDPR so it shows that Council of Europe is not that kind of bureaucratic institution, they were extremely forward looking.

Question 4

What is the European Convention for Prevention of Torture?

Answer 4

• Important one! Created the CPT = Committee for Prevention of Torture:
• They do very important work since they travel throughout Europe, visit prisons or places where people are deprived of their liberty and they write reports and establish minimum criteria:
  
  • Minimum number of space, minimum number of calories.
• Important because these reports come up when a state is found to be violating article 3 and usually a state tries to pretend they are better:
  
  • Belgian prisons and the psychiatric annexes  reference to reports without the applicant referring to it himself.

Question 5

What is the European framework convention for the protection of national minorities

Answer 5

• Much debated and contested in the Belgian situation: problematic why?
• If you want to protect national minorities within a state: you have to find a definition of who are the national minorities living on your territory and for some minorities or in some states it won’t be too much of a problem and in others it will be. In the Belgian context for example there is still not an agreement on who then are the national minorities in Belgium.
  • Eg. German minority.
  • Easy to have clashes or contradictions.

Question 6

What are the 2 main principles of European framework convention for the protection of national minorities?

Answer 6

1. Protected zone for minorities: territorial protection. Belgian system based on the territoriality principle: in Leuven with the official administration, you cannot use French. In theory, they are not allowed to address you in French. These are constitutional choices but also one of the reasons why it is so complex this framework convention.
2. Protect a person as a minority on the whole territory.

Question 7

What is the commissioner for human rights?

Answer 7

• The commissioner for human rights: Council of Europe has a commissioner:
• Travels around, fosters rising, promotes human rights, informs, tries to see where there are problems and has this kind of promoting function. This function of educating and fostering, of course the effective protection of human rights.

Question 8

What is the organisation for security and cooperation in Europe?

Answer 8

• Also includes the Atlantic sphere: used to be a diplomatic conference, very important during time of cold ware = venue and framework where East and the West could engage in discussion.

After fall of Berlin Wall: do we still need it?

• They turned themselves from a conference to an organization that deals with human rights issues: every active as observers for elections so that it is conducted in a fair way. This kind of guarantying of the fair procedure that is something that the organization for security and safety in Europe is dealing with.
• They are also dealing with media pluralism, also having issues or focusing on minority protection, it is more the kind of international policies and international politics rather than really dealing with the hard-legal issues.

Question 9

What does the EU do for fundamental rights?

Answer 9

• EU could not escape issue of fundamental rights although not at the heart of the project  fundamental freedoms also include some human rights issues = link.
• There were human rights issues but not in a comprehensive way, but they do come up within the EU framework. First through the word of ECJ is going to consider that human rights are general principles of EU law and then you see how these general principles of EU law is integrated, human rights as fundamental principles references to the European convention of human rights is written down what know is art. 6 of the treaty of EU.

Question 10

Is the EU a member of the convention of human rights?

Answer 10

• No but that question has been asked if the EU should become a High Contracting party to the convention of HR?
  
  • The treaties have to be adapted for this to be possible: this is one track.

Question 11

What is the Charter of Fundamental rights of the EU?

Answer 11

• Other track: fundamental rights catalogue themselves: Charter of fundamental rights of the EU in 2000:
• First and second generation rights, also some third generation: very comprehensive catalogue, although it is in great deal inspired by the European convention of human rights it clearly goes much beyond.

Question 12

What was the European convention?

Answer 12

European constitution: that did not end up happening but the charter remained = same legal force & importance as the treaty of the EU and TFEU.

Question 13

What is the growing case law?

Answer 13

Growing case law on that charter but can only be used within the framework of the EU:

• There has to be a link to the institutions or the member states of the EU where they act as organs of the European union or within the sphere of the European union which is not always very easy to decide.

Question 14

What is the discussion on whether EU should join the European Convention on Human rights?

Answer 14

• Lots of negotiation and then draft passed to the ECJ, the Luxembourg court for an opinion in 2013: it was a bomb because it was quite negative even though the discussions had been very positive:
  
  • Court basically said no to accession and pointed to some fundamental issues.

Question 15

What were the problems alluded to in the opinion of the ECJ in the report of 2013?

Answer 15

• ECJ said: the only court who is competent to deal with EU law is the ECJ  so if you bring a case before the ECHR, we cannot exclude that bringing cases to the Strasbourg court concerning ECJ EU law.
  
  • Suppose someone brings a case against the EU  then you would give the Strasbourg court jurisdiction on issues pertaining to EU law.
  • This is a problem for the EU concerning foreign policy where ECJ has limited competence and ECHR would have more competence.
  • Also issues on the level of protection, primacy & effectiveness of EU Law could be affected through accession, issue of mutual trust,…
• Cold shower and felt like a deception to them but some weeks ago: new communication and some new steps will perhaps be taken. Still some action possible but you can ask the question: isn’t it a symbolic discussion?
  
  • Important: then the ECHR will be the highest court in Europe = a court above ECJ. This could create diplomatic tension.

Question 16

What was the Bosporus case?

Answer 16

• Bosporus-airways v. Ireland case: one of the most important cases for situaties in which EU law has to be accessed. Can be difficulet ofr national states to comply with both the European Covnention on Human Rights and EU law.
• Bosporus airways is a Turkish aircraft, leasing an aircraft that was owned by a company registered in the former Yugoslavia. Now there was a sanction regime by the UN, in the afterward of the war with Yugoslavia. So, there was a sanction regime that the EU copied, turned into EU law.
• Now the Turkish company is leasing an airplane and it needs maintenance in Ireland and the Irish authorities had to seize the plane under EU law so they appeal in Ireland on the basis of property rights.
• Preliminary ruling to the ECJ: European regime in which the Irish authorities acted was in line with fundamental rights = outcome of the Irish procedure is basically to Bosporus airways: too bad but it’s legal.
  
  • And then off course Bosporus goes to the Strasbourg court and what are the arguments of the Bosporus company is: the Irish authorities are not respecting our rights, article 1 of the first protocol. Now can you see. It is a little bit of a complex issue, but can you see what a difficult situation that is for the Strasbourg court?
• If Strasbourg states yes, there is a problem  pointed out that ECJ assessed the fundamental rights wrong = open clash Strasbourg – Luxembourg.

Question 17

What was the Bosporus presumption?

Answer 17

• Bosposrus presumption: “well, we presume that under EU law the protection of fundamental rights is equal to that of the European Convention on Human Rights”. And so, if Luxembourg has already found that there is no problem, there is no problem and then off course they say the presumption can be rebutted in cases where manifestly the Human rights protection was deficient. This is off course a very elegant way of legal diplomacy.
• Prof is not convinced of this reasoning because then why aren’t we applying such a presumption to national states? Eg. we presume that in Germany the fundamental rights protection is of the same nature
  • Weird thing that apparently some legal orders enjoy the presumption of high standards of protection, whereas the legal orders of the other states do not enjoy that presumption.
  • Pragmatic because otherwise an open clash of the legal systems because EU is not like a state party. Then the EU would be able to defend its position before the Strasbourg court.

Question 18

What happened after 2014 and the negative opinion?

Answer 18

• After 2014: the opinion perceived negative:
• Next occasion: assumed that Strasbourg will take revenge and do away with the presumption but in the next cases: Strasbourg court continues doing the logic -> not looking for a conflict.
• Theoretical point of view:
  • Some differences in the case law, even though they are inspired by channels but you have to remember that the Council of Europe is not the EU but they should treat each other with respect. More a matter of diplomacy than of the law.

Question 19

What is the fundamental rights agency?

Answer 19

• 2007: in Vienna since 2007:
• Main goal:
  
  • Provide assistance information to the European Commission, to the member states, precisely human rights issues and policies: collecting information, collecting data, scientific research, opinions,… Very useful.
  • Also: fundamental rights as a policy concern internally: procedure concerning Poland, Hungary.
  • Also the sanction mechanism: member states are monitored on article 7: respect for the rule of law, democracy.
  • Also external relations of the member states: human rights are an important policy issues in trade agreements, investment agreements, cooperation agreements  very specific area of law

Question 20

What is the American Convention on human rights?

Answer 20

• Two track system, inspired by the European HR systems:

1. Charter-based mechanism
2. Treaty-based mechanism based on the American Convention of Human rights. Convention of 1996 with a very complex monitoring system:
   
   1. Interim American commission on Human rights in Washington: 7 independent members.
   2. Interim American Court on HR in Costa Rica: 7 judges.

Question 21

What is the function of the commission with the American system?

Answer 21

• The commission has a function, a function both in the system of the charter, as the organisation of the American states and the American declaration on Human rights and under the American convention on human rights, okay?
• Ambiguous: states that do not ratify the convention can only deal with the commission.
• States that did ratify the convention: applications are assessed by the commission and they can end up at the court level.
  
  • But they can never be brought directly to the court by an applicant. Only done by either the state or the commission.
• Commission can find that a state is not sufficiently following and they may decide to bring a case to the court  very complex system based on the former European system before the reform = very complex interplay in the Americas.

Question 22

What is the American court really good at?

Answer 22

• Now the American court on human rights is extremely innovative when it comes to execution of judgements.
• In European Court: sometimes just moral satisfaction, sometimes some money or insisting that states change legal systems.
• American court: very innovative: mostly for issues forts disappearances and transitions justices: waarheidscommissie for apartheid for example.
• Good relationship between Strasbourg & the American court.

Question 23

What is the African charter on human and people’s rights?

Answer 23

• Africa has a charter: the African charter of human and people’s rights.
• Very intriguing text: all-in compassing: all three generations, it addresses the issue of duties and it gives a specific African understanding of some of the rights. Much more socially imbedded, a less individualistic approach to human rights. It a very open text and prof likes it a lot.

Question 24

What is the monitoring body for the African charter?

Answer 24

• African Commission and an African Court on human rights:
• Very complex relationship and not long lasting caselaw so the African court seems to be awaiting a further reform. The real idea is to create one African court within the African Union. Two chambers and one would be like the Luxembourg court and the other would be the Strasbourg court, that is the idea in the very long term. I think that is very promising and ambitious. But in the meantime, we have to do and deal with what there is.
• But problem: lacks money but really lacks knowledge and people so it is kind of illusionary at this point. The African court had its first cases who were inadmissibility decisions so there was an issue as well.

Question 25

How do human rights get protected in Asia?

Answer 25

• In Asia no courts and commissions in the regional system: even more specific systems in Asia or systems related to the Middle Eastern world or Arab, but nothing you can easily compare.
• They have specific activities: Cairo declaration on Human rights: relation between Islam and human rights = political but not a legal document, lots of things lacking.
• What you have is often a very, if you see initiatives coming up, they quite stress a lot sovereignty, sovereignty of states. And also, the idea of having independent people judging states seems to be very complex.
• Asia is a very diverse continent with a particular conception of human rights. So that, you know between their national domestical authorities lacking and the UN, with so far away, its specific problems. There is no intermediate level. So, I see that this can be a serious problem.

Question 26

What are the obligations for the state stemming from human right treaties?

Answer 26

• Human right committee: “well it is erga omnes obligations, states have those obligations erga omnes”. Not only with respect to other state partners. The obligations are binding on all branches of government.
• There are negative and positive obligations. Although there is no direct horizontal effect, there can be at least an indirect horizontal effect and the obligations extend to everyone within the territory of the state.

Question 27

What is the territorial jurisdiction?

Answer 27

• Article 1 ECHR: territorial jurisdiction:
  • States have responsibilities but those are limited to those who are within their jurisdiction: main point: what does it mean.
• Jurisdiction = territorial concept: if you are on the territory of the state = in its jurisdiction.
  • Some exceptions where you are under the jurisdiction even if you are outside the territory: eg. if a state is occupying a region of your state then that state does not have full jurisdiction anymore: exceptional cases: military occupation.
• Also means: if the state goes outside its jurisdiction that in principle there is no obligation and that was made clear very clearly in one of the famous case the ‘Bankovic’ case on the NATO-bombings in Yugoslavia on airstrikes.

Question 28

What was the case Bankovic?

Answer 28

• Case Bankovic: was declared inadmissible on 19^th December 2001:
  
  • Inadmissible ratione loci = a state cannot be held accountable for cases or for the consequences outside the territory of behavior or actions or that were allowed on its territory.

Question 29

What was the case against Denmark?

Answer 29

• Another case against Denmark:
• Danish journal published Mohammad cartoons completely lawful under Danish but people in Morocco got offended and the court said: ‘well you can’t hold Denmark accountable for the consequences of something that on their territory happened was completely lawful and may cause prejudice outside.’
• Not always black and white: Always a matter of indicating what happens normally but there can be exceptions

Question 30

What was the case Soering vs. United Kingdom?

Answer 30

• 1989 case: Very well-known precedent of typically negative consequences outside the territory of the state, where the Court will accept that there is jurisdiction.
• You can’t extradite Soering to the United States, because he risks the death penalty in the United states.’ It was not capital punishment executed by the UK authorities. No-one was contesting the UK’s right to extradite; they could do that. But it was the negative consequence outside that made the court say ‘you can’t’
• That is to say ‘you can’t without guarantees.‘ If you manage, if you UK, you managed to negotiate guarantees what ultimately happened in this case, if you manage to negotiate guarantees with the US authorities that no capital punishment will be applied, that changes the situation.

Question 31

What is extraterritorial jurisdiction?

Answer 31

• Case al-Skeini and case Hirsi Jamaa. Also case against Belgium: M.N v. Belgium of 5^th of May 2020:
• 2 categories:
  
  1. State agent authority
  2. Effective control

Question 32

What is the state agent authority?

Answer 32

• Form of extraterritorial jurisdiction:
• There are various sub-categories:
  
  • Diplomatic and consular agents who are present on foreign territory: eg. French embassy  state agents.
  • It can also be possible that the receiving state is asking you to do something = extraterritorial activity where you exercise powers, functions that the state would do itself but it is based on consent of the state.
• Case law: Liechtenstein has asked Switzerland to deal with issues of resident permits, part of the administration is done by Switserland, something goes wrong  bring case against Switserland.
• Use of force by state agents acting outside of the territory: Case Al-Skeini: policemen and military personnel exercising violently in Iraq or Afghanistan. There is power and there is jurisdiction.

Question 33

What is effective control?

Answer 33

• The second big category, there the focus is on effective control. Effective control by a state of an area outside its territory of a result of military action.
• Situation like Cyprus: the northern part occupied by Turkey.
• Case v. Belgium: people asking in the Belgian embassy in Beirut for a visa that was refused: article 3 violation?
  • Serious risk on ill-treatment if they were sent back.

Question 34

What was the case Hirsi Jamaa?

Answer 34

• Asylum seekers from Libya and saved by Italian coastal boats = under a duty to rescue = international obligation. Also a human obligation to save people in distress and in need. They were send back to Libya.
• Strasbourg said: this is a collective expulsion.
• Italians: you cannot expel people that have not been on your territory = not an issue here but issue here was that these people were under the effective control of Italy, they they could not escape from your orders. So yes there is jurisdiction.
• Politician has stated that this makes migration issues difficult because we cannot do any pushback.

Question 35

What was the case M.N v. Belgium

Answer 35

• Court has stated that in order to establish extraterritorial jurisdiction or link that jurisdiction with control, it is not sufficient for people outside the territory with no links to the territory of a country, no ties, no nothing, and the mere fact of initiating an administrative procedure, the court says, is not sufficient to consider that you have been within the jurisdiction of a state.

Question 36

What is the difference between UN and ECHR wrt obligations of the state?

Answer 36

• UN: matter of protection human rights to fulfil: state itself should abstain from HR violations and protect means the state should protect you from others violating your Human Rights and fulfil means that States are under duty to do what is possible, what is needed for an effective njoyment of human rights by citizens.
  
  • Respect, protect, fulfil.
• ECHR: talk about negative & positive obligations:
  
  • Negative: States should respect HR through non-intervention: they can interfere but they have to respect the conditions (see art. 8-11):
    
    • Legal basis – Legitimate aim – proportionality test  case law also copies this reasoning when it is not referred to in the article.
    • What is not accepted as a reasoning or implicit restriction: there should not be an inherent limitation of human rights: Gouda case on a prisoner: a prisoner has not lost human rights = still have human rights if you’re in prison.

Question 37

What is the non-interference?

Answer 37

• Negative obligations: non-intervention
• 3 conditions for lawful interference –> explicitly admitted limitations?
  
  1. Legality: legal basis = intrinsic protection against arbitrary interference
  2. Finality = does it pursue a legitimed aim?
  3. Necessity in a democratic society?

Question 38

What is the legality criterium?

Answer 38

• Legal basis = intrinsic protection against arbitrary interference:
  • Legal basis needs to have formal qualities, substantiative qualities: content wise: protect you from arbitrary interferences which means it can give some discretionary power to authorities when interfering: mostly limited discretionary power: states cannot do what they want, it has to be foreseeable by citizens.
• A legal basis means, a legal basis means a basis in domestic legislation on the one hand, secondly that legal basis needs a certain quality.

Question 39

Is law = formal act of parliament?

Answer 39

• Law should not be understood as a formal act of Parliament: can also be a stable rule (eg. established case law) = law has to be interpreted in the broad sense.
• Important because you have civil and common law traditions.
• Whatever the specific sources of law: it must be established, present in domestic law: you cannot rely on uncertain rules = that is not sufficient.

Question 40

What should be the quality of the rule?

Answer 40

• Specific quality of the rule:
• Accessible & sufficiently precise: fairly clear rule and not going to rely on secret texts that are unpublished  the person facing a limitation should be aware of that limitation = should be foreseeable so that you are not surprised by the application of the rule.

Question 41

What is the degree of precision?

Answer 41

• Degree of precision: depends on who is concerned:
  • If it is clear for technicians it is fine = if it is clear for the targeted group because some legislation is just more complex than others which is fine.
  • Court accepts that sometimes you need to look at the preparatory works or need a lawyer but it it must be generally predictable.

Question 42

What is the case RTBF v. Belgium?

Answer 42

• RTBF wanted
• to broadcast a documentary on the risks and dangers of aesthetic surgery but one of the surgeons had a bad reputation and realizes he won’t get any more clients if this airs.
• He goes to court and asks for an injunction  RTBF says = freedom of expression and refers to the constitution. Whole discussion on a priori interventions in the freedom of expression = are they lawful?
• Strasbourg court: one of the rather limited number of cases where the Strasbourg court, dealing with freedom of expression, did not even go into all the criteria. Read the first criteria, said is it lawful, is there a legal basis?
  
  • The Belgian State said yes of course there’s a legal basis, article 1382 of the civil code, article 584 of the civil procedure, article 25 of the constitution and so on and so forth, no problem.
• But the Strasbourg Court said “you have a law, you have many rules, they are accessible, but they are not foreseeable, they are simply not foreseeable. You as a citizen, as a journalist, as a broadcaster and so on, you can’t know what the judge is going to decide” and therefore, the restriction did not have a legal basis as in the Convention. So, violation of article 10. So that’s what is meant by a legal basis. Is that clear?