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SECURING HUMAN RIGHTS IN THE FACE OF INTERNATIONAL INTEGRATION

  • Israel de Jesús Butler (a1)
Abstract
Abstract

The continuous transfer of authority from the national sphere to inter-governmental organizations gives rise to an increasing risk that States may be mandated by their obligations under these organizations to take measures that are inconsistent with their obligations under International Human Rights Law. Drawing on the approaches of various international, regional and national jurisdictions, this article explores two possible models for restructuring International Law that could ensure that human rights obligations remain effective. The ‘international constitutional’ approach would ensure that human rights are enshrined within the ‘constitutional’ instruments of IGOs, preventing incompatible rules from emerging. The ‘parochial’ approach would ensure that human rights as protected at the national or regional level would take precedence over conflicting international obligations.

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Email: i.butler@lancaster.ac.uk; Israel.butler@fra.europa.eu.
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1 See I Butler, ‘Unravelling Sovereignty: Human Rights Actors and the Structure of International Law’ (Intersentia, 2007) ch 3.

2 For status of ratifications and accessions see: http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en, visited 16 December 2010.

3 P Alston (ed), ‘Non-State Actors and Human Rights’ (OUP, Oxford, 2005); A Clapham, Human Rights Obligations of Non-State Actors (OUP, Oxford, 2006). Inter-governmental organization is understood to mean an ‘inter-state body created by multilateral treaty … [with] what may be called a constitution … [and] organs separate from its members’. CF Amerasinghe, ‘Principles of Institutional Law of International Organizations’ (2nd edn, CUP, Cambridge, 2005) 9–10.

4 See UN Human Rights Committee General Comment 26, ‘Continuity of Obligations’ (8 December 1997) CCPR/C/21/Rev.1/Add.8/Rev.1. The wording used by the HRC in the General Comment is: ‘the rights guaranteed under the Covenant belong to the people living in the territory of a State party, and that once the people are accorded the protection of the rights under the Covenant, such protection devolves with territory and continues to belong to them, notwithstanding changes in the administration of that territory’.

5 Compare arts 19–23 of the Vienna Convention on the Law of Treaties 1969 (1155 UNTS 331) with UN Human Rights Committee General Comment 24 ‘On issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant’ (11 November 1994) CCPR/C/21/Rev.1/Add.6.

6 See eg Petersmann E-U, ‘How to Reform the UN System? Constitutionalism, International Law, and International Organizations’ (1997) 10 Leiden Journal of International Law 421; Fassbender B, ‘The United Nations Charter as the Constitution of the International Community’ (1998) 36 Columbia Journal of Transnational Law 529.

7 There is some difference of opinion over whether monism implies that international law automatically enters national law, or whether a prior rule of domestic law is necessary to grant international law this status. See Morgenstern F, ‘Judicial Practice and the Supremacy of International Law’ (1950) 27 British Yearbook of International Law 42. There is also some difference of opinion over whether monism implies that international law is automatically superior to national law, or whether this should be left to the national judge to decide. See review of literature in Schaffer RP, ‘The Inter-Relationship between Public International Law and the law of South Africa: an Overview’ (1983) 32 ICLQ 277, 281282.

8 For a discussion of the monist and dualist traditions see: Fitzmaurice G, ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’ (1957-II) 92 Hague Receuil 1, 7080; Margolis E, ‘Soviet Views on the Relationship between National and International Law’ (1955) 4 ICLQ 116; Preuss L, ‘The Relation of International Law to Internal Law in the French Constitutional System’ (1950) 44 AJIL 641.

9 The nuances and intricacies of the monist-dualist debate are slightly simplified here. It is hoped that the level of detail is sufficient to present the two approaches sufficiently to distinguish them from ‘constitutionalism’ and ‘parochialism’.

10 For Kelsen, national law derives its validity from international law, because international law establishes the scope of application of national law. The only reason that the law of a particular State applies within that State's jurisdiction to the exclusion of the laws of other States is because international law regulates the territorial scope of each States' laws. It would follow that international law is therefore superior to and take precedence over national law. Accordingly, international law and national law form part of a single legal system. See Kelsen H, ‘The Pure Theory of Law and Analytical Jurisprudence’ (1941) 55 Harvard Law Review 44, 6670.

11 This issue of hierarchy is addressed below.

12 For a discussion of the practice of various States in this regard see Jackson JH, ‘Status of Treaties in Domestic Legal Systems: A Policy Analysis’ (1992) 86 AJIL 310. Brownlie explains dualism in the following terms: ‘International law is a law between sovereign states: municipal law applies within a state and regulates the relations of its citizens with each other and with the executive. On this view neither legal order has the power to create or alter rules of the other. When municipal law provides that international law applies in whole or in part within the jurisdiction, this is merely an exercise of authority of municipal law, an adoption or transformation of the rules of international law. In case of a conflict between international law and municipal law the dualist would assume that a municipal court would apply municipal law.’ I Brownlie, ‘Principles of Public International Law’ (7th edn, OUP, Oxford, 2008) 31–32.

13 The content of this article might serve as an empirical example of pluralism. See, eg Berman F, ‘A Pluralist Approach to International Law’ (2007) 32 Yale Journal of International Law, 301; BZ Tamanaha, ‘Understanding Legal Pluralism Past to Present, Local to Global’ St. John's Legal Studies Research Paper Series, Paper No. 07-0080, May 2008 available on: http://ssrn.com/abstract=1010105, accessed 16 December 2010.

14 Even writers concerned about the legitimacy or desirability of establishing a hierarchy of norms admit that there has emerged at the international level a relativity among the value of different legal obligations with certain norms having different legal value. See Weil P, ‘Towards Relative Normativity in International Law?’ (1983) 77 AJIL 413.

15 It seems to be generally agreed that art 38 of the Statute of the International Court of Justice did not intend to create a hierarchy in its ordering of different sources of law available to the Court. Akehurst's analysis rejects that—apart from rules of jus cogens—there is any inherent hierarchy among the sources of law listed in art 38 of the ICJ Statute: ‘treaties are easier to prove than custom and custom is easier to prove than general principles of law; that is one reason why they are likely to be applied in that order, and perhaps why Articles 38 lists them in that order.’ See The Hierarchy of the Sources of International Law’ (1974–75) 47 British Yearbook of International Law 273, 274.

16 For an exploration of what is actually meant by the idea of a hierarchy of law or norms in international law see: Weiler P and Paulus AL, ‘The Structure of Change in International Law or Is there a Hierarchy of Norms in International Law?’ (1997) 8 EJIL 545; Koskenniemi M, ‘Hierarchy in International Law: A Sketch’ (1997) 8 EJIL 566.

17 Vienna Convention of the Law of Treaties (1155 UNTS 331), arts 53 and 64.

18 International Law Commission, ‘Articles on Responsibility of States for Internationally Wrongful Acts, with commentariesYearbook of the International Law Commission (2001) Vol II, Part Two, 8485. The case law applying the principle has also extended this to the validity of rules of national law. See cases from the Inter-American system, below (n 19). While the Articles on State Responsibility are not themselves legally binding the commentary supports the view that this is a valid rule of international law.

19 For a discussion of Inter-American case-law see Butler I, ‘The US and Brazil before the Inter-American Commission on Human Rights: Recent Cases’ (2004) 4 Human Rights Law Review 2 295, 304308. See eg Roach and Pinkerton v USA IACnHR Case No. 9647, Res. No. 3/87 (1987) paras 56, 60; Miguel Dominguez v USA IACnHR Case 12.285, Report No. 62/02 (2002), paras 83–84; ‘Gómez-Paquiyauri Brothers’ v Peru IACtHR, Series C 110 (2004), para 128; Maritza Urrutia v Guatemala Series C 103 (2003), paras 92, 100–101. Other courts have been far more cautious in recognizing rules of this nature. The International Court of Justice found that the prohibition on genocide constituted a ‘peremptory norm’ in the Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of Congo v Rwanda) [2006] ICJ Rep 6, 27. The European Court of Human Rights found that the prohibition on torture could be seen as a rule of jus cogens: Al-Adsani v UK (2002) 34 EHRR 273, para 61. This was also the opinion of the International Criminal Tribunal for the former Yugoslavia: Prosecutor v Furundzija IT-95-17/I-T, para 144. Recently the General Court of the EU also addressed the concept in two cases: Cases T-315/01 Kadi v Council and Commission (21 September 2005) para 226 and Yusuf and Al Barakaat International Foundation v Council and Commission T-306/01 (21 September 2005) para 277. The principle has been thoroughly explored by A Orakhelashvili ‘Peremptory Norms in International Law’ (Oxford, OUP, 2006). See also: R Jennings and A Watts (eds), Oppenheim's International Law Volume I Peace, Parts 2–4 (9th edn, OUP, Oxford, 1992); Charney J, ‘Universal International Law’ (1997) 87 AJIL, 529;Christenson, ‘The World Court and Jus Cogens’ (1987) 81 AJIL, 93. Shelton D, ‘Hierarchy in International Law100 (2006) AJIL, 291.

20 Akehurst (n 15).

21 Orakhelashvili (n 19) 7. Orakhelashvili writes that among treaties ‘instances of hierarchy are based on the conception of international law as a consent-based system of norms derived from the will of States. Assumptions that a later norm prevails over an earlier one or that it does not so prevail because the States concerned have so wished, or that a norm applicable between a limited number of States can trump general international law all imply that the will of States determines the priority of norms. This means that there is no categorical hierarchy of international instruments, for no instrument is inherently superior to another. The issues of hierarchy arise only in the specific cases when the clauses of different instruments come into conflict with each other and the rule which prevails does so because this was so wished by the relevant States for this specific case.’

22 Art 351 of the Treaty on the Functioning of the European Union. Formerly, EC Treaty, art 307.

23 NAFTA Agreement, art 103. Consolidated text provided by NAFTA secretariat on http://www.nafta-sec-alena.org/en/view.aspx?conID=590&mtpiID=ALL#103, accessed 16 December 2010.

24 Art 84. Available on the ECOWAS website: http://www.comm.ecowas.int/sec/index.php?id=treaty&lang=en, accessed 16 December 2010.

25 Text available on the WTO website: http://www.wto.org/english/docs_e/legal_e/04-wto.pdf, accessed 16 December 2010.

26 Art VIII, s 6. Full text available on the IMF website: http://www.imf.org/external/pubs/ft/aa/index.htm, accessed 16 December 2010.

27 It is not that rules become valid because they derive from a higher body of jus cogens—indeed the reverse is true since a rule of jus cogens will only come into being once it has been accepted by the international community as a whole and so will have most probably been a rule of customary international law or treaty law first. Similarly, the limited body of rules of jus cogens quality could not be said to have spawned the breadth of existing international law.

28 Salcedo C, ‘Reflections on the Existence of a Hierarchy of Norms in International Law’ (1997) 8 EJIL 583, 584 notes that ‘most rules of international law are only authoritative for those subjects that have accepted them. The relativism of international law may thus lead to a clash between the unilateral legal claims of states, as each state is free to assess the scope of the obligations it has assumed and is on an equal footing with every other state as regards the interpretation of its commitments … international norms are relative because their scope varies according to states’ commitments: each state which has actively or passively subjected itself to the effects of those norms, is bound by them to every other state which has done the same. To be sure, the sovereign state must comply with international law, but it is up to each state to assess the requirements of that law in each situation and in each specific case.' (emphasis in original).

29 See eg Case 29/69 Stauder v Ulm [1969] ECR 419.

30 Over a decade ago CF Amerasinghe, Principles of Institutional Law of International Organizations (CUP, Cambridge, 2005) 6, estimated the number of IGOs was between 500 and 700.

31 On the problem of conflicting treaties in the context of the EU Member States vis-à-vis third States see Hartley T, ‘International Law and the Law of the European Union—a Reassessment’ (2001) 72 British Yearbook of International Law 1, 2235.

32 See: Council Decision 2010/48 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities, OJ L 23, 27.1.2010, p. 35; Article 44 of the Disabilities Convention (UN Doc. A/61/611, 13 December 2006); Protocol 14bis to the European Convention (CETS No.: 204, 27/5/2009) and Article 6(2) of the Treaty on European Union (as amended by the Lisbon Treaty, OJ C 83, 30.3.2010, 13).

33 See International Law Commission (n 18) 36–38. The commentaries support the view that this rule forms part of customary international law.

34 This expectation that States will adjust their domestic laws to ensure observance of their international obligations is neatly labelled a ‘presumption against hypocrisy’ by Dyzenhaus. He points to the common law jurisdictions of the UK, New Zealand, Australia and Canada as examples where the domestic courts, while unable to apply treaty-law directly, have ensured that existing national law is interpreted consistently with international obligations. Dyzenhaus D, ‘The Rule of (Administrative) Law in International Law’ (2005) 68 Law and Contemporary Problems 127, 133137.

35 Hartley (n 31) 2 notes ‘international law and the national (municipal) law of a State are two different legal systems. This follows from the fact (if from no other) that it is possible to have two mutually incompatible rules, one in international law and one in national law, each of which is valid in its own system. Thus a statute passed by a State might be contrary to international law; yet it may nevertheless be valid in its own system. This would not be possible if the two were part of the same legal system.’

36 For a comparative discussion of the role of national courts in interpreting and giving effect to treaties domestically see Schreuer C, ‘The Interpretation of Treaties by Domestic Courts’ (1971) 45 British Yearbook of International Law 255.

37 See sources cited above (n 7–12).

38 They may still, of course, abuse their legitimate scope of discretion to interpret the law in such a way as to commit a violation of human rights. For an example of this see the approach of the European Court of Justice in Case 29/69 Stauder v Ulm [1969] ECR 419, where the CJEU found that the potential violation of human rights standards was not inherent in EC law, and was rather a result of the way that Germany had chosen to implement it.

39 See eg Report of the Counter-Terrorism Committee to the Security Council for its consideration as part of its comprehensive review of the Counter-Terrorism Committee Executive Directorate (18 December 2006) annexed to UN Doc S/2006/989; Policy Guidance Regarding Human Rights at the CTC, UN Doc A/AC.40/2006/PG.2, adopted 25 May 2006. For the disappointed reaction of the UN's Special Rapporteur see para 24 of the Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (21 November 2007) UN Doc A/HRC/6/17, In contrast the Security Council Committee established pursuant to resolution 1267 (1999) concerning Al-Qaida and the Taliban and Associated Individuals and Entities (which is responsible for maintaining the list of organizations and individuals against whom sanctions may be taken) is under no such obligation. See for instance this committee's report for activity in 2007 (UN Doc S/2008/25, adopted 17 January 2008) where there was no mention at all of rights issues. There has been occasional engagement of the CTC by human rights treaty bodies, eg http://www.un.org/News/Press/docs/2003/hrct630.doc.htm, accessed 16 December 2010.

40 The organs and offices now principally responsible for this within the UN are the Human Rights Council and the Office of the High Commissioner for Human Rights. See http://www.ohchr.org/EN/Pages/WelcomePage.aspx; and http://www2.ohchr.org/english/bodies/hrcouncil/, accessed 16 December 2010.

41 See the policy of the Commission in conducting ‘impact assessments’ of proposed legislation in ensuring compatibility with the EU's Charter of Fundamental Rights: Commission Communication ‘Compliance with the Charter of Fundamental Rights in Commission legislative proposals. Methodology for systematic and rigorous monitoring’ COM(2005) 172 final (27 April 2005) and ‘Report on the Practical Operation of the Methodology for a Systematic and Rigorous Monitoring of Compliance with the Charter of Fundamental Rights’. COM(2009) 205 (29 April 2009). The Fundamental Rights Agency (FRA) may also be consulted by the EU Institutions when law-making in order to verify compliance with human rights of legislative proposals. However, it is a right, rather than an obligation, to consult the FRA in this respect, and the FRA may only offer its opinions on legislative proposals to the institutions at their request. See Regulation 168/2007/EC OJ L 53, (22 February 2007) 1. On the role of National Human Rights Institutions see the ‘Paris Principles’ adopted by UNGA Res 48/134, 20 December 1993 (‘Principles relating to the status of national institutions’).

42 See eg Report of the Special Representative of the Secretary-General on the situation of human rights defenders, Mission to Serbia, including Kosovo (29 February 2008) UN Doc A/HRC/7/28/Add.2.

43 See eg paras 47–54 of the Report of the Special Rapporteur on violence against women, its causes and consequences, Mission to the Democratic Republic of the Congo (28 February 2008) UN Doc A/HRC/7/6/Add.4. A Code of Conduct regulates the behaviour of peacekeepers who may be investigated and disciplined.

44 See Butler (n 1) 114–123.

45 See for instance the agreement of Serbia and UNMIK to allow UNMIK to make reports to the Human Rights Committee relating to the territory of Kosovo. See Concluding Observations on Serbia, CCPR/CO/81/SEMO (12 August 2004); Concluding Observations on the report on Kosovo (Serbia) submitted by the United Nations Interim Administration Mission in Kosovo, para 4. See UN HRC Report 2005/2006, Vol I, A/61/40, 68.

46 Statute of the International Court of Justice, arts 59 and 65.

47 While a State's responsibility for human rights violations extends to all those within its jurisdiction (thus not discriminating between nationals and non-nationals), the majority of those within a State's jurisdiction tend to be its nationals. Thus the potential pool of ‘victims’ is composed predominantly of nationals.

48 Mavrommatis Palestine Concessions PCIJ Series A, No. 2 (1924), 1, 12. See also Panevezys-Saldutiskis Railway, PCIJ Series A/B, No. 76 (1939) 1, 16. Similarly Nottebohm (Second Phase) [1955] ICJ Rep 4, 24; Barcelona Traction, Light and Power Co Ltd case [1970] ICJ Rep 3 44. Of course, if one considers human rights rules to be erga omnes in nature, then any other State could demand their fulfilment. However, this depends upon the willingness of a foreign government to make such a demand. The fact that the inter-state procedure under the International Covenant on Civil and Political Rights has never been used serves as an illustration of how unsatisfactory reliance upon this proves. See UN Human Rights Committee General Comment 31, ‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, CCPR/C/21/Rev.1/Add. 13 (26 May 2004).

49 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v UK) Preliminary Objections [1998] ICJ Rep 9; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v USA) Preliminary Objections (27 February 1998) [1998] ICJ Rep 115.

50 R (on the application of Al-Jedda) (FC) (Appellant) v Secretary of State for Defence (Respondent) 12/12/07, [2007] UKHL 58.

51 Lord Bingham, para 34; Lord Rodger, para 118; Baroness Hale, paras 125–126; Lord Carswell, para 136; Lord Brown, para 152.

52 Preamble, para 2 and arts 1(3), 13(1)(b), 55, 56, 62(2) and 68. Art 76 relating to the Trusteeship system is now obsolete. See Butler (n 1) ch 3.

53 The USA and Somalia are the only two States not to have ratified the UN Convention on the Rights of the Child but both are party to other UN-sponsored human rights treaties. See ‘Multilateral Treaties Deposited with the Secretary-General’ (ST/LEG/SER/E/19), or http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en, accessed 16 December 2010.

54 Al-Jedda, paras 28–30, with which the other Lords agreed: Lord Rodger, paras 114–115; Baroness Hale, para 129; Lord Carswell, para 131; Lord Brown, para 152.

55 It seems to be generally accepted that this is possible, at least in theory. See eg Bowett D, ‘The Impact of Security Council Decisions on Dispute Settlement Procedures’ (1994) 5 EJIL 5, 9293; Shubber SThe Destruction of Aircraft in Flight over Scotland and Niger: the Questions of Jurisdiction and Extradition under International Law’ (1995) 66 British Yearbook of International Law 239, 268277; F Morgenstern, ‘Legality in International Organizations’ (1976–77) 44 British Yearbook of International Law 241; E de Wet The Chapter VII Powers of the United Nations Security Council' (Hart, Oxford, 2004) ch 3; ND White, The Law of International Organisations (2nd edn, Juris, Manchester, 2005) 102–107. HG Schermers and NM Blokker, ‘International Institutional Law’ (4th edn, Martinus Nijhoff, 2003) §§ 206–208. As noted, the idea was certainly not excluded by the ICJ in the Lockerbie case and is in fact firmly established within EU law (see eg art 263 TFEU).

56 In particular Security Council Resolution 1390, adopted 16 January 2002, UN Doc S/RES/1390.

57 Cases T-315/01 Kadi v Council and Commission (21 September 2005) paras 228–229 and T-306/01 Yusuf and Al Barakaat International Foundation v Council and Commission (21 September 2005) paras 279–280.

58 GC Kadi para 226; Yusuf para 277.

59 GC Kadi para 228 Yusuf para 279.

60 For a discussion of different opinions relating to which human rights may or may not be counted among the body of jus cogens norms see Orakhelashvili (n 19) 53–60.

61 GC Kadi paras 234 ff; Yusuf paras 285 ff.

62 See Butler (n 1) 41–55.

63 See eg GA Resolutions relating to Cuba: 47/139, 18/12/92; 48/142, 20/12/93; 49/200, 23/12/94; 50/198, 22/12/95; 51/113, 12/12/96; 52/143, 6/3/98; GA Resolutions relating to Myanmar: 16/132, 17/12/91; 47/144, 18/12/92; 48/150, 20/12/93; 49/197, 23/12/94; 50/194, 22/12/95; 51/117, 12/12/96; 52/137, 3/3/98; 53/162, 25/2/99; 54/186, 29/2/00; 55/112, 1/3/01; 56/231, 28/2/02. For detailed discussion of how the UDHR has been used by the GA, as well as the recognition it has been accorded by the ICJ see Butler (n 1) 37–55.

64 Weiler and Paulus (n 16) 559 write: ‘[W]e can discern problems of this, apparently easy and indisputable, positivist confirmation of international law hierarchies. There is, firstly, the indeterminate contents of jus cogens—which gives rise to the suspicion that either jus cogens norms are so indisputable that codification adds nothing to their quality, or so disputed that they never meet the criteria for their creation, namely the acceptance and recognition as peremptory norms ‘by the international community of States as a whole’. And, secondly, the treaty mode of the creation of sub norms leaves the question open of whether they are binding on those who resist them and have not become parties to the relevant Convention'.

65 S Skogly, The Human Rights Obligations of the World Bank and the IMF (Cavendish, London, 2001); M Darrow, Between Light and Shadow: the World Bank, the International Monetary Fund and International Human Rights Law (Hart, Oxford, 2006); Alston (n 3).

66 Case 29/69 Stauder v City of Ulm [1969] ECR 419; Case 11/70, Internationale Handelsgesellschaft v Einfuhr- und Vorratsstelle Getreide [1970] ECR 1125.

67 On the issue of coordination and priority between IGOs see Schermers and Blokker (n 55) §§1702–1712; F Morgenstern, Legal Problems of International Organisations (Grotius Publications, Cambridge, 1986) 26–31.

68 See eg Nowak M, ‘The Need for a World Court of Human Rights’ (2007) 7 Human Rights Law Review 1, 251.

69 This may be a challenge given that in the past the UN has not even been able to persuade members of its own ‘family’ to follow its approach to human rights. See Morgenstern (n 67) 28–29 on the negative response of the World Bank to requests by the UN regarding the denial of assistance to certain regimes during the decolonization period, despite continued UNGA resolutions calling for States to refuse such cooperation.

70 The EU's courts do provide for supervision of human rights compliance by the EU and the Member States when executing EU law by reference to internal human rights standards. See further below. Exceptionally for a UN instrument the Disabilities Convention allows for membership ‘regional integration organizations’. Additionally, several Council of Europe treaties relating to particular aspects of human rights protection also permit adherence by the EU. Eg the Council of Europe Convention on Action against Trafficking in Human Beings, CETS 197; the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, CETS 201. According to Protocol 14bis to the ECHR and Article 6(2) of the Treaty on European Union (as amended by the Lisbon Treaty) the EU will become party to the ECHR. See Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Council of the European Union, Brussels, 20 April 2009, 6655/1/08 Rev. 1 and Protocol Nol. 14bis to the Convention for the Protection of Human Rights and Fundamental Freedoms CETS No: 204, 27/5/2009.

71 ECHR art 35(1) requires that domestic remedies must be exhausted before the ECtHR can take jurisdiction.

72 The term ‘jurisdiction’ is used here since it is wider than ‘territory’ because States may remain responsible for their obligations under the Convention even outside their territory where they are taken to have jurisdiction, such as in the cases relating to Kosovo and Iraq, discussed below.

73 ECtHR, Case of Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v Ireland, Application No 45036/98, (30 June 2006) para 137.

74 ECtHR, Case of Capital Bank Ad v Bulgaria Application No 49429/99 (24 November 2005) para 111.

75 One might question whether inter-State cooperation should be classed as a ‘legitimate aim’ given that it is fundamentally different in nature from the other accepted legitimate aims. Traditionally legitimate aims have always been considered to be rooted in the needs of society such as public safety, health, morality, and the rights of others. (See eg art 8 ECHR or art 29 of the Universal Declaration of Human Rights.) These can hardly be equated with the compromises reached in the context of inter-State cooperation between government officials (many of whom have no democratic mandate).

76 Bosphorus (n 72) para 156.

77 ibid 155.

78 Bosphorus para 156.

79 ibid para 150.

80 ibid para 165.

81 See para. 30 of AG Gerven's Opinion, Case C–159/90 SPUC v Grogan [1991] ECR I–4685: ‘A feature of [the] … case-law [of the CJEU] is that it does not confer direct effect in the Community legal order on the provisions of … international treaties but regards those treaties, together with the constitutional traditions common to the Member States, as helping to determine the content of the general principles of Community law.’ Similarly, AG Slynn has noted that ‘the Convention provides guidelines for the Court in laying down those fundamental rules of law which are part of Community law, though the Convention does not bind, and is not part of the law of, the Community as such’. See Cases 60–61/84 Cinéthèque SA and Others v Fédération Nationale des Cinémas Francais [1986] 1 CMLR 365, at 379. The GC made this express in Case T–347/94 Mayr-Melnhof Kartongesellschaft mbH v Commission [1998] ECR II–1751, para 311; Case T–112/98 Mannesmannrohren-Werke v Commission [2001] ECR II–729, para 59.

82 The CJEU refers to this as the ‘complete system of legal remedies’ (see eg Case 50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, para 40). Art 230 of the EC Treaty is now art 263 of the Treaty on the Functioning of the European Union (TFEU). Art 234 EC is now art 267 TFEU. Art 235 EC and 288 EC are now 268 TFEU and art 340 TFEU. See (n 70).

83 The basic rules were established in Case 25/62 Plaumann v Commission [1963] ECR 61.

84 C-283/81 CILFIT [1982] ECR 3415 (para. 7): ‘Article 177 [later Article 234 and now Article 267 TFEU] does not constitute a means of redress available to the parties to a case pending before a national court or tribunal. Therefore the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of community law does not mean that the court or tribunal concerned is compelled to consider that a question has been raised within the meaning of Article 177.’ Although standing under 263 TFEU has been widened by the Treaty of Lisbon, it remains fairly narrow.

85 See C-224/01 Köbler [2003] ECR I-10239. Compare Case C-73/03 Traghetti del Mediterraneo [2006] ECR I-5177 paras 24–46.

86 See Case 175/84 Krohn v Commission [1986] ECR 753 and Case T-47/02 ECR [2006] II-1779 Danzer v Council.

87 These provisions set out the right to a fair trial and to a remedy.

88 Case T-177/01 Jégo-Quéré v Commission [2002] ECR II-2365, para 47. The GC's attempt to widen the rules relating to standing under art 230 of the EC Treaty was reversed by the CJEU which pointed out that such an alteration would require an amendment to the treaty. Case C-263/02 P, Commission v Jégo-Quéré [2004] I-3425, para 31. See also the Opinion of Advocate General Jacobs (when the case was appealed) 10/7/03 in Case C-263/02 P Jégo-Quéré, para 43: ‘I find highly problematic the strict test of standing currently applicable under the fourth paragraph of Article 230. In my view, that test gives rise to a real risk that individuals will be denied any satisfactory means of challenging before a court of competent jurisdiction the validity of a generally applicable and self-implementing Community measure. It may prove impossible for such individuals to gain access to a national court (which in any event has no competence to rule on validity) … otherwise than by infringing the law in the expectation that criminal (or other enforcement) proceedings will then be brought against them when the national court may be persuaded to refer to the Court of Justice the issue of the validity of the measure. Besides the various practical disadvantages which may attend the making of a reference in the context of criminal proceedings, such a procedural avenue exposes the individuals in question to an intolerable burden of risk.’

89 For further criticism of the conclusion that the system of remedies at the EU level could provide ‘equivalent protection’ see Costello C, ‘The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe’ (2006) 6 Human Rights Law Review 1, 87, 115 ff.

90 ECtHR Matthews v UK, Application No. 24833/94, 18/2/99, para 18.

91 Matthews, para 33 and para 157 of the Bosphorus case.

92 Perhaps this can be explained on the grounds of the degree of control exercised by individual EU Member States. The principle of pacta sunt servanda provides that States will only be bound by those treaties that they enter into and the principle of sovereign equality would leave States free to enter treaties of their choosing. See the Vienna Convention the Law of Treaties, 1969 (1155 UNTS 331) in its Preamble (recognising the principle of ‘free consent’), arts 26 (‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’) and 34 (‘A treaty does not create either obligations or rights for a third State without its consent’). See also the Declaration on Principles of International law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 1970 (GA Resolution 2625 XXV), which among other things reaffirms sovereign equality.

93 Costello (n 89) 115.

94 Report of the International Law Commission, 59th Session (2007), A/62/10, 178-220. Draft Article 5 provides that the ‘conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.’ While not of itself binding this provision of the draft articles has been referred to in pertinent cases as authoritative including, ECtHR Behrami v France and Saramati v France, Germany and Norway Application Nos. 71412/01, 78166/01, 2/5/07, (para 31), as did the UK House of Lords in R (on the application of Al-Jedda) (FC) (Appellant) v Secretary of State for Defence (Respondent) [2007] UKHL 58, (para 5).

95 Behrami and Saramati ibid paras 134–135.

96 ibid para 141.

97 See eg Al-Jedda (n 94), judgment of Lord Rodger, paras. 107–120.

98 See ECtHR Grand Chamber decision on admissibility, Behrami and Saramati (n 94) paras 144–152. This reasoning was subsequently applied in several cases relating to KFOR (see ECtHR decisions on admissibility, Kasumaj v Greece, Application No 6974/05, 5/7/07 and Gajic v Germany, Application No 31446/02, 28/8/07) and the UN's High Representative (see ECtHR decisions on admissibility, Kasumaj v Greece Application No 6974/05 (5 July 2007) and Gajic v Germany Application No 31446/02, 28/8/07).

99 Behrami and Saramati (n 94) paras 147–149.

100 See above, text accompanying (n 43–45) relating to exceptional cases where the Special Procedures under the Human Rights Council have received complaints relating to the UN's administration of territory.

101 For the current form of the Draft Articles see: Report of the see International Law Commission, 59th Session (2007), A/62/10, 178–220.

102 For the commentary on this article Report of the see International Law Commission, 58th Session (2006), A/61/10, 283–286.

103 Wet E De, ‘The Emergency of International Regional Value Systems as a Manifestation of the Emerging International Constitutional Order’ (2006) 19 Leiden Journal of International Law 611.

104 See European Commission, ‘Report on the Practical Operation of the Methodology for a Systematic and Rigorous Monitoring of Compliance with the Charter of Fundamental Rights’ COM(2009) 205 (29 April 2009) 8.

105 See (n 70).

106 Opinion 2/94 (Re the Accession of the Community to the European Human Rights Convention) [1996] ECR I-1759.

107 Case 6/64 Costa v ENEL [1964] ECR 585; Case 26/62 Van Gend en Loos [1963] ECR 3.

108 See Ahmed T and Butler IDJ, ‘The European Union and Human Rights: An International Law Perspective’ (2006) 17 EJIL 771. Indeed, this author has in the past been far more concerned about the potential damage that the EU could do to human rights rather than its capacity to protect them.

109 See I Butler and Schutter De, ‘Binding the EU to International Human Rights Law’ (2008) 27 Yearbook of European Law 277, 280287.

110 In particular Regulation 881/2002 OJ L139/9. The original has been amended many times.

111 In particular, Security Council Resolution 1390, adopted 16 January 2002, UN Doc S/RES/1390 (2002). Case T-315/01 Kadi v Council and Commission [2005] ECR II-3649; Case T-306/01 Ali Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533.

112 GC Kadi paras 181–183; Yusuf paras 231–233.

113 GC Kadi para 193; Yusuf para 243.

114 GC Kadi paras 186–207; Yusuf paras 235–257.

115 See Consolidated Versions of the Treaty on European Union and of the Treaty Establishing the European Community, OJ C (29 December 2005) 1; art 351 TFEU see (n 70) above.

116 This finds expression, for instance, in the doctrine of the margin of appreciation in ECtHR case-law. See eg Lester Lord, ‘Universality versus Subsidiarity: A Reply’ [1998] European Human Rights Law Review 73; R St J Macdonald: ‘The Margin of Appreciation’ in J Macdonald, F Matscher and H Petzold (eds), The European System For The Protection Of Human Rights (Martinus Nijhoff, Leiden, 1993); Ovey CThe Margin Of Appreciation and Article 8’ (1998) 19 Human Rights Law Journal 10; Prebensen S, ‘The Margin of Appreciation and Articles 9, 10, and 11 of the Convention’ (1998) 19 Human Rights Law Journal 13; Schokkenbroek J, ‘The Basis, Nature and Application of the Margin-of-Appreciation Doctrine in the Case-Law of the ECHR’ (1998) 19 Human Rights Law Journal 30.

117 Joined Cases C-402/05 P and C-415/05 P Kadi v Council and Commission [2008] ECR I-6351.

118 CJEU Kadi paras 288, 299, 327.

119 ibid 282, 317.

120 ibid para 285.

121 ibid paras 286, 287, 326.

122 ibid para 304.

123 Opinion of the Advocate General Maduro of 16 January 2008 in Case C-402/05 P Kadi v Council and Commission, para 24.

124 AG Maduro's Opinion, paras 30, 39.

125 ibid para 32.

126 The cases relate to the Al-Qaida and Taliban (United Nations Measures) Order 2002 (SI 2002/111); the Al-Qaida and Taliban (United Nations Measures) Order 2006 (SI 2006/2952); the Terrorism (United Nations Measures) Order 2006 (SI 2006/2657).

127 Judgment of [2008] EWHC 869. The Orders quashed were the 2006 Orders (ibid.).

128 ibid 374–376.

129 ibid 376–380.

130 Al-Qaida and Taliban (United Nations Measures) Order 2002 (SI 2002/111).

131 Case C-340/08 M (FC) et al (Pending) [2008] OJ C 260/8.

132 [2008] UKHL 26. This indeed has been the approach of AG Mengozzi (Opinion of 14 January 2010), who suggests that Regulation 881/2002, obliging Member States to freeze suspects' assets, does not permit the halting of benefits paid to the spouse of a suspect which are sufficient only to cover basic subsistence needs.

133 See explanatory notes attached to the Orders in Council cited above (n 125).

134 Above (n 122) para 30. See further Case C-260/89 ERT [1991] ECR I-2925.

135 For instance, the UK's constitutional tradition does not grant the Human Rights Act 1998 such superior status. Conflicting rules of primary legislation may receive a ‘declaration of incompatibility’ but cannot be invalidated (s 4).

136 Internationale Handelsgesellschaft mbH v Einfur- und Vorrastelle fur Getreide und Futtermittel [1972] CMLR 177; Frontini v Ministero delle Finanze [1974] 2 CMLR 372.

137 Corbett PE, ‘World Order—An Agenda for Lawyers’ (1943) 37 AJIL 207, 212: ‘A practical consequence of monism that established the primacy of international law might be that nationassl courts, in dealing with the rights and duties of States, would act as judicial agencies to the community of States and declare any offending rule of municipal law to be ultra vires and void. This function would be analogous to that performed when they pass upon the conformity of acts of national authorities with a national constitution. How much this would simplify the enforcement of an international “bill of rights” needs no elaboration.’

All views and opinions expressed in this article remain those of the author and do not purport to reflect the views or policy of the Fundamental Rights Agency. The author would like to thank Robert McCorquodale, Steven Wheatley and Nigel White, Sigrun Skogly and the anonymous reviewer for their extremely helpful comments. All mistakes, of course, remain my own.

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International & Comparative Law Quarterly
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