I (24 September 2010) The new semester’s introductive conceptual approach toward human rights
The first lecture under the course “Protection of Human Rights under EU Law” was read today in the University of Tartu. B.A. and M.A. students from the University of Tartu (6 law students and one student of international relations), St. Petersburg State University (law), University of Bremen (political management), Rouen University (law?), University of Wroclaw (?), Vilnius University (law), and Tbilisi University (2 law students) participated. Due to the technicalities (exam requirements; organization of the course, overview of the compulsory and optional literature, e-learning environments – which are all very important), we could substantially cover only the general idea of the course, and start thinking what human rights are, (how) do they relate to fundamental rights and thus to state and international organizations, and (how) do the two named afore groups of rights differ from other rights. By the end of the day, the participants were sent an e-mail explaining how could they access the study materials in the e-learning environment Moodle, so that we could have a vivid discussion during the next meeting.
II (1 October 2010) Historical development of human rights in Europe
Basing inter alia on the articles: M.-B. Dembour (2010) „What Are Human Rights? Four Schools of Thought“ 1 Human Rights Quarterly, 1-20; Donnelly (2007) „The Relative Universality of Human Rights“ 2 Human Rights Quarterly, 281-306; A. J. Langlois (2003) „Human Rights without Democracy? A Critique of the Separationist Thesis“ 4 Human Rights Quarterly, 990-1019; Chapters in the book An Introduction to the International Protection of Human Rights. Turku/Åbo: Åbo Academy University: M. Piechowiak (1999) „What are Human Rights? The Concept of Human Rights and Their Extra-Legal Justification“, pp. 3-14; J. Zajadlo (1999) „Human Dignity and Human Rights“, pp. 15-24; J. G. Merrills (1999) „Promotion and Protection of Human Rights within the European Arrangements“, pp. 275-286; K. Drzewicki (1999) „Internationalization of Human Rights and Their Juridization“, pp. 25-47; A. Rosas, M. Scheinin (1999) „Categories and Beneficiaries of Human Rights“, pp. 49-62; and research paper: C. O’Cinneide (2009) „Human rights and within multi-layered systems of constitutional governance: rights cosmopolitanism and domestic particularism in tension“ Research Paper No. 12/2009, UCDWorking Papers in Law; we discussed liberal and universal values, and the codification history of human rights. We also asked for the source of morality, and compared values in Judaism and Christianity with Islamic values.
III (8 October 2010) Protection of fundamental rights in the European Union
We discussed the judicial structures of Europe and the EU, the changed by the Lisbon Treaty structure of the EU, historical development of human rights by the ECJ (now „CJEU“), the protection of human rights in the CJEU: review of the Member States’ acts adopted under EU law, review of the Member States’ acts outside the scope of EU law (internal exclusive competences), review of EU acts. We also compared the main procedural elements in the ECtHR and the CJEU, and discussed the question of responsibility, because until the EU is not a contracting party to the ECHR, it cannot be directly responsible before the ECtHR for violating rights in the ECHR. In addition to some Chapters in the (already referred to in this blog) book: P. J. Birkinshaw, M. Varney (eds.) The European Union Legal Order after Lisbon. Austin, Boston, Chicago, New York, The Netherlands: Kluwer, 179; I found an article written by S. Carruthers (2009) „The Treaty of Lisbon and the reformed jurisdictional powers of the European Court of Justice in the field of justice and home affairs“ 6 European Human Rights Law Review, 784-804 that seemed quite suitable for explaining the structural changes in the EU. I really must take time in order to directly discuss the compulsory articles with the participants in the course.
IV (15 October 2010) Protection of fundamental rights in the European Court of Human Rights
After having recalled what had we done during our earlier lectures, discussing the human rights protection mechanism in the ECtHR and the “would be” of that mechanism, introducing to the participants the HUDOC-database, I introduced two judgments – partial decision of the ECtHR as to the admissibility of Application no. 10195/08 by Aleksandr Korobov and Others vs. Estonia, decision of 14 September 2010, and judgment of the ECtHR in Application No. 20972/92 by Raninen vs. Finland, judgment of 16 December 1997. During our next meeting, I have to add a comment that Finland is bigger and far more established and powerful state than Estonia to allow itself the freedom of acknowledging its mistakes.
V (22 October 2010) Protection of fundamental rights in the Court of Justice of the European Union – Seminar
Today, we had a seminar about protection of human rights in the CJEU. After having discussed the remedial system in the CJEU for protecting human rights, basing on the article by C. Kombos (2010) „The Esoteric Dimension of Constitutional Pluralism: EU’s Internal Constitutional Sub-units and the Non-symbolic Cumulative Constitution“ in P. J. Birkinshaw, M. Varney (eds.) The European Union Legal Order after Lisbon. Austin, Boston, Chicago, New York, The Netherlands: Kluwer, we discussed the concepts „constitutional pluralism“ (as overlap, reflectivity, interdependence, influence, mixity, coexistence, patterns of relation; also the sources of constitutional pluralism, the meaning of ontological pluralism, typological pluralism, and relational pluralism), „constitution“, „multi-level constitutionalism“, „constitutionalism“. We also discussed, what is the constitutive element that allows distinguishing an international treaty from a constitution. Finally, we discussed the possible reasons why had the author of the article discussed case law in the article written about problems related to constitutional pluralism in Europe. As one reason for that we established that in the case Schmidberger, the CJEU had balanced the EU’s fundamental rights and fundamental freedoms. Such theorizing helped us to build the competences for discussing the core elements of the core case law of the CJEU during our next meeting, and for evaluating the effectiveness of protection of human rights in the CJEU.
VI (29 October 2010) Evaluation: Are fundamental rights effectively protected in the European Union?
We actually managed to discuss the case law development from 1/58, Stork (judgment of 4 February 1959) to C-112/00, Schmidberger (judgment of 12 June 2003). When in Stork the ECJ was of opinion that (para. 4) “under Article 31 the Court is only required to ensure that in the interpretation and application of the Treaty, and of rules laid down for implementation thereof, the law is observed,” and “[I]t is not normally required to rule on provisions of national law”, then in Schmidberger the ECJ balanced the values, asking what is superior – a fundamental right with its roots in the ECHR, or a fundamental freedom of the EU? Can a restriction of a fundamental freedom of the EU be justified by a fundamental right? And in the case C-36/02, Omega (judgment of 14 October 2004; we are going to discuss the case in the beginning of our next meeting) the ECJ balances values in German constitutional law (human dignity) and fundamental freedoms of the EU. Thus, a clear line of development may be observed.
I have composed two exe-files for the case study. This one is the preliminary one for the CJEU’s case study: http://www.hot.ee/yanayana/ecthr_5_11/index.html – any critique welcome – beginning with the correct use of the official websites of the EU institutions, and ending up with pedagogical-methodological issues.
VII (5 November 2010) Should the European Union accede to the European Convention on Human Rights? – The legal and political implication of such accession
We did not manage much more than to still discuss the cases of the CJEU – Omega, Viking, Laval, Rüffert, Kadi, and finally Kadi II, judgment of 30th of September 2010. What we noticed was that in earlier cases Kadi was represented by Ian Brownlie before the CJEU.
VIII (12 November 2010) The legal and political implication of the accession of the European Union to the European Convention on Human Rights – Seminar
In the begining of the seminar we could finally discuss the question, whether human rights are effectively protected in the EU. For that aim, we first discussed what effective protection of rights means for the EU and what are the legal basis for it. Thereafter, we tried to establish whether there exist problems in the current system for protection of human rights in the EU, indicate the problems, and discuss whether the problems indicated also legally mean ineffectiveness of human rights protection in the EU. Thirdly, we tried to establish some universal criteria (independent of the two major developments in EU law today – the accession of the EU to the ECHR and the Charter of Fundamental Rights of the EU) for changing protection of human rights in the EU more effective. Fourthly, we discussed Opinion No. 2/1994 of the European Court of Justice about the accession of the European Community to the ECHR – what was asked from the Court about the accession; what did the Court say why, and under which legal basis about such accession; how do Articles 235 EEC, 308 EC, and 352 TFEU differ; does Article 352 TFEU give the EU the competence to conclude human rights treaties; (why) is it possible that the EU now accedes to the ECHR. Fiftly, we discussed whether and to what extent by accession to the ECHR, the EU would loose its autonomy. Sixthly, I put back the list with the problems indicated by legal publicists in the EU’s human rights protection system, and asked whether and which of those problems could accession of the EU to the ECHR solve.
We did not have time to discuss the technical issues of the accession, although the students participating demonstrated high competence of and willingness to discuss also those questions.
IX (19 November 2010) The Charter of Fundamental Rights of the European Union – codification, content, political and legal status
Having begun with the technical issues related to the accession of the EU to the ECHR, broader aspects of Protocol No. 14 to the ECHR, and types of jurisdiction generally and in the ECtHR, we moved on to the Charter of Fundamental Rights of the European Union – to the history of the Charter, how much should protection of human rights in the EU reflect the level of protection of human rights in the constitutional norms of the Member States of the EU (Does Handelsgesellschaft tell us that each right in the German Basic Law should be guaranteed by the CJEU, or is it enough when the minimum level of protection foreseen by the ECHR is guaranteed?), why does the EU need its own Charter of fundamental rights, the Convention-method for putting together the text of the Charter, transparency and openness of the process, engagement of the civil society, the sources of the Charter, new rights and developments reflected in the Charter, typology of rights in the Special Part of the Charter. In the end of the lecture we noticed that the Charter contains rights, freedoms, and principles, and hopefully we are able to talk about the difference between rights and principles in the Charter, more about special Articles in the Charter, their sources and content, the Preamble and the General Part of the Charter next week.
X (26 November 2010) General Provisions of the Charter of Fundamental Rights of the European Union
XI (3 December 2010) General Provisions of the Charter of Fundamental Rights of the European Union – Seminar
XII (10 December 2010) Legal status of the Charter of Fundamental Rights of the European Union – Seminar
XIII (17 December 2010) Implementation of human rights – Seminar