Course „European System of Human Rights Protection“ – Has been Regularly Updated
Professor Rowe
After the opening of the new semester (I have already held four lectures on state law, and am trying to read two more today), on 4th September I depart for Frankfurt (Oder), wishing to participate in the summer course “The European System of Human Rights Protection” at the Europa-Universität Viadrina.
As I read a course on protection of human rights in the EU, for foreign students, I was interested in taking part of this course, as first, the course’s website says that „this course concentrates on an integrated treatment of the various European systems and of specifically European issues of human rights protection“. Secondly, it seemed interesting to me that the course has been earlier organized and presented by representatives of universities from eleven European states – the Viadrina European University Frankfurt (Oder) (Germany), University of Lund (Sweden), University of Sevilla (Spain), University of Rotterdam, Univerity of Utrecht (The Netherlands), University of Aberystwyth, University of Hull (United Kingdom), University of Rennes I (France), University of Maribor (Slovenia), University of Malta, University of Vienna, and University of Salzburg (Austria). Thirdly, the Viadrina European University holds a comprehensive Central and Eastern European Internet Directory for Human Rights (CEEHR). Before the departure, I was composing an e-course on human rights in a specific e-learning environment, and I applied for two study-objects under the BeSt-programme – “Protection of Fundamental Rights in the European Court of Justice”, and “Protection of Fundamental Rights in the European Court of Human Rights“ that I promised to work out as exe packages – and the answer by the University of Tartu was positive.
I think that I am going to post here information about the issues discussed during the course as it proceeds. I do not know what to exactly expect from this course, but I know that I have reached the point where I just cannot solely sit home and read in order to prepare for my lectures.
● The first day (6 September 2010) at the Viadrina University –
What remains with me from the first lecture, read by Professor Christopher Harding (University of Wales) on philosophical, conceptual, sociological and historical aspects of human rights, is that human rights form part of Europe with the ECtHR being the most important element of the European integration process. The idea of Europe is breaking down boundaries, which idea reminds me of the Ono Academic College in Israel, where Priest, Rabbi, Imam and Sheik learn side by side. (In our summer school, participants from Australia, Austria, Azerbaijan, Belarus, Costa Rica, Cyprus, Ecuador, Estonia, France, Georgia, Germany, Greece, Hungary, Iraq, Kazakhstan, Lithuania, The Netherlands, Portugal, the Republic of Moldova, the Russian Federation, Serbia, Singapore, Slovakia, Slovenia, Turkey, Ukraine, and Uzbekistan sit side by side. – In that sense, also participation in summer courses is meant to break down boundaries).
Professor Harding also raised the following issues:
– Should we protect dead people? Future generations? Non-human actors?
– Whether state as an entity/ organization should have human rights equal to individuals? (Right to information of an undertaking when the European Commission is investigating its competition violations is understandable, but don’t one place by that non-human actors / organizations above human beings again, as it was common in the Soviet Russia? Who should be put first?
– Participants of the course also had the possibility to read Chapter 9: „Rights Talk in the Market Place: „Nonsense upon Stilts“? in C. Harding, U. Kohl, N. Salmon, Human Rights in the Market Place: The Exploitation of Rights Protection by Economic Actors (Ashgate, 2008) – about how do companies compare with human individuals.
– Who should be responsible for the human wrong? – Every member of society, because people could not have been, say, deported to Siberia without the work of every single installer of the railway rails? Or the administrators of states, because a state bases on coercion? The latter would not mean absolute shift of responsibility from the ordinary members of society to the state, because individual society members remain still responsible under criminal law. There still remain, for example, such questions as who should be responsible for famine? And although human rights are universal by nature, usually the governments sign human rights treaties, which in turn means that the governments may conclude conventions against themselves.
The second lecture: „Overview of Regimes and Institutions“ was read by Professor Ryszard Piotrowicz (Aberystwyth University). Professor Piotrowicz gave an overview of the variety of regimes and institutions directly or indirectly connected to human rights protection in Europe, beginning with global regimes and documents: The UN (UN Charter, UDHR, ICCPR, ICESCR, CAT, CRC, CRSR, ICC, ICTY); ICRC (Geneva Conventions and Protocols), Non-Human Rights Institutions (ICJ, ILO, NATO), with European regimes: CoE (ECHR, European Social Charters), EU (TEU, CFREU, Fundamental Rights Agency), OSCE (Office for Democratic Institutions and Human Rights), and ending up with NGOs.
Talking about bridges between states and regimes – the participants of the course daily cross the bridge between the towns Slubice (where lies the hostel for the participants) and the German town Frankfurt (Oder), over the river Oder, which used to be the border between Poland and Germany – Piotrowicz reminded that the Roman Catholic Church had favoured a Polish priest becoming the Pope.
Two seminars, a library tour, and the official reception followed the lectures.
● The second day (7 September 2010) –
Professor Gerard C. Rowe (European University Viadrina Frankfurt (Oder)) discussed in his lecture “Prohibition of discrimination” the meaning of discrimination; why, where, when, and to what extent to avoid discrimination; the legal methodologies appropriate to avoid discrimination; sources of European anti-discrimination law; elements of discrimination; the nature and structure of remedies. Having researched application of EU discrimination law, the lecture about the broader basis of discrimination under the ECHR and the case law of the ECtHR seemed especially important.
The next lecture “Universal Periodic Review of the Human Rights Council and Europe” was read by Pablo Pareja Alcaraz (University of Pompeu Fabra Barcelona) discussing the GA Resolution 69/251 of 3 April 2006, by which Resolution the Human Rights Council was established (in replacement of the Commission on Human Rights, as a subsidiary organ of the GA) to be responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner. Having discussed the reasons why the Human Rights Council was not and with great probability will not be established as a new principal UN organ, the Universal Periodic Review (UPR) mechanism, and Europe’s participation in the UPR mechanism were discussed.
The lectures were followed by two seminars, and a city tour, after what some participants had coffee at the tallest building in the town.
● The third day (8 September 2010) –
Professor Dirk Voorhoof (University of Ghent) gave a lecture on freedom of expression. As tool to improve the quality of democracy, freedom of expression includes media freedom and pluralism, public debate, transparency, but also whistleblowing, etc. I thought for the first time about characteristics of Article 10, which can be brought out as: Who?, What?, About whom?, How?, To whom?, When?, Where?, Why?, Under which circumstances?, With what intention?, With what (possible) effect?
The next lecture “Criminal justice within the EU” was read by Dr. Jonas Grimheden (EU Agency for Fundamental Rights), covering criminal sanctions and human rights in the EU. The lecture also touched differences btw. human rights and fundamental rights, CoE and EU human rights protection mechnisms, the ECtHR and CJEU, the ECHR and the Charter of Fundamental Rights of the EU, Case Pupino was discussed.
After the lectures, professor Carmeen Thiele introduced the rules of the moot court with which court the course ends. Two seminars followed.
● The fourth day (9 September 2010) –
Dr. Carmen Thiele (European University Viadrina Frankfurt (Oder)) gave lecture on “Self-determination and minorities” that was a most brilliant transmission of legally relevant aspects of international law. Example: There exists a UN GA Declaration on the granting of independence to colonial countries and peoples, saying: “All peoples have the right to self-determination …”, BUT (even if we do not look at the name of the document, which is declaration, but look at the content) the GA can only adopt not legally binding acts. BUT we may ask if a GA Declaration amounts to customary law. – That way, even a GA Resolution can be binding. – The preconditions of customary law are state practice and opinio iuris, BUT also practice of the ICJ who has stated that the ICJ has turned the Declaration into the source of customary international law, consequently – for the colonial peoples we have a principle of self-determination. BUT what about the other peoples … etc., etc. Isn’t such chain of argumentation brilliant? Dr. Thiele, who has written her Ph.D. Dissertation about the situation of minorities in Estonia, explained about her style of lecturing that she is not a politician, but gave an overview of the legal regulation of the matter. Metries to figure out now, what is the difference between legally binding right, and legally binding principle.
Professor Leo Zwaak (University of Utrecht) thereafter read lecture about “The right to life and abolishment of death penalty” during which lecture he gave an overview of the relevant case law of the ECtHR. One relevant example based on the case law: If a citizen of, say, Estonia approaches the police and claims violation of his /her rights and the police does not do anything, and the person jumps out of the window as the consequence – this means that the police has not performed its tasks.
After the lectures, professor Carmen Thiele introduced the rules of the moot court with which court the course ends. Two seminars followed.
● The fifth day (10 September 2010) –
LL.M. Tobias Gries (K&L Gates Berlin) talked about “Human Rights within the EU”. His most interesting assertion was that in the area of exclusive EU competences, the EU is not bound by the ECHR. His argumentation was that as the EU is a legal personality, it is not obliged by any other conventions than those, by which it itself directly chooses to take obligations.
Dr. Therese Comodini Cachia (University of Malta) gave a lecture “Utilising the European Court of Human Rights”, Dr. Cachia analysed the text of the ECHR as amended by Protocol No. 14.
Two seminars followed.
● The sixth day (11 September 2010) – It was Saturday, and the participants were invited to Berlin, where we enjoyed a boat tour on the river Spree. Thereafter we were acquainted to the Reichstag and Brandenburger Tor. At the Brandenburger Tor, I sat on the city tour bus that took the passengers to the residence of German Chancellor, the Berlin wall, and to other famous places in the town.
● The seventh day (12 September 2010) – For me, this was a library day.
● The eighth day (13 September 2010) –
Professor Silvo Devetak (University of Maribor) read a lecture: “Minority rights within the EU” that actually could be summarized as ideological and political structure of Europe. Having begun with Roma situation and the related dangers in different states, Anti-Semitism, German-Polish property problems, Islamophobia (Islam being the second-largest religion in Europe), religion-based political movements, prof. Devetak talked about the phenomenon of Jean Marie Le Pen (France), MP Geert Wilders (The Netherlands), right-wing party Jobbik attempting at legitimizing anti-Semitism (Hungary). He concluded that although Europe faces different movements, dangers (things going out of control), and politicians, the “demographic structure of about 495 million people living in the EU [that] is composed of a great variety of ethnic, cultural, linguistic, religious and similar identities” does not have Europe-wide politicians and a view of common Europe.
Dr. Richard Burchill (University of Hull) thereafter talked about “Right to free elections”. After having raised the questions about the necessity and possible better organization of elections, Dr. Burchill provoked thinking with questions such as:
-What if the electing people are wrong (Gaza-Strip)?
-If people can be wrong, could there be better way for expressing their will than elections?
-How much choice do we have in expression of people’s will?
-Do elections help us to express certain will?
-Secret ballot vs. democracy as open process
-Eventually, the State decides what is best for people, but the state is the elected people
-Should the age of election depend on education (should the Oxford or Cambridge diploma give extra vote – because the people ho have made it are really smart)?
-Have you ever listened to the opinion of a political party of another European state?
Two seminars followed.
● The ninth day (14 September 2010) –
Representative of German Red Cross, Bernard Dougherty, talked about “Relationship between human rights protection and international humanitarian law”. The lecturer introduced division of IHL into two branches: Geneva law (protection of individuals; Geneva Convention I-IV + Additional Protocols), and Hague law (means and methods of warfare; Hague Regulations, Weapons Conventions, etc.).
Dr. Ulrike Brandl (Paris Lodron University Salzburg) thereafter gave lecture “Migration and refugees”, where she analysed the concepts and regulation of migration and refugees, as well as the related case law.
Two seminars followed. What was interesting about those seminars, where the cases of the CJEU and the ECtHR (Bankovic) were discussed – according to the facts of one of the cases decided by the CJEU, the European Parliament sought annulment of the final subparagraph of Article 4(1), Art. 4(6), and Art. 8 of Council Directive 2003/86/EC of 22 September 2003 on the right of family reunification. Those Articles, inter alia, allowed Member States prior to authorizing entry and residence under this Directive, verify, whether a person meets a condition for integration (for example, can language requirements limit the right of family reunification). The European Parliament was of opinion that the named Articles violated human rights – the right to family life and the right to non-discrimination – as guaranteed by the ECHR and as they result from the constitutional traditions common to the EU Member States, as general principles of Community law. The CJEU did not want to annul the EU’s legal act, but shifted the responsibility on Member States, stating that there was no violation, because wide margin of appreciation had been left to the Member States, who cannot breach the ECHR, incl. the right to family reunion. By that, the CJEU shifted the responsibility from international organization to its Member States.
Whereas, in the Case Bankovic that was discussed during the second seminar (Dougherty), the Member States of NATO were willing to shift their responsibility on international organization (NATO). Whereas NATO, in its turn, indicated that it was legally not bound neither by IHL, nor HRL.
● The tenth day (15 September 2010) –
Professor Jan Reijntjes (University of Curaçao) gave lecture “The right to liberty and security” about certain criminal law concepts and their application, for example, difference btw. arrest and detention; reasonable suspection; lawful reasons for deprivation of liberty; reasonable time with regard to the right of suspects to a trial;
Professor Paul Mevis (Erasmus University of Rotterdam) thereafter gave during the lecture “The right to fair trial” a good overview of Article 6, about which Article he in the beginning stated that it is not understandable without case law, and that the largest amount of case law is devoted to Article 6. For me was important to see, which Articles in the ECHR can be read together. Two seminars followed.
● The eleventh day (16 September 2010) –
Professor Geistlinger (Paris Lodron University Salzburg) gave lecture on “The right to respect private life”.
After the lecture, the participants prepared in two groups for the moot court.
● The twelfth day (17 September 2010) – The last day of the course, and the day of moot court sessions. The day and the course are expected to end with closing ceremony and certificates.
