EU Human Rights Research Articles

The EU's human rights policy towards turkey: how IT has impacted the accession negotiations

The EU's human rights policy towards turkey: how IT has impacted the accession negotiations

The EU's human rights obligations in relation to its data protection laws with extraterritorial effect

A form of extraterritoriality is evident in EU data protection law. International human rights law, as a subset of public international law, can help determine what are arguably the EU's obligations to safeguard the fundamental right to data protection extraterritorially. The EU could be understood to have positive and negative obligations to respect, protect, and fulfil its citizens' right to data protection. As the fundamental right to data protection evolves to carry more weight in the EU, this could amplify the EU's obligations under human rights law to protect its citizens' personal data when such data are processed outside EU territory.

European Union Guidelines on Human Rights Defenders: a review of policy and practice towards effective implementation

The European Union Guidelines on Human Rights Defenders (the guidelines) are an EU external relations policy tool providing European diplomats with operational recommendations to support and protect human rights defenders (HRDs) in third country missions, recognising the critical need to protect those working on the frontlines to ensure human rights obligations are enforced in their countries. Implementation of the guidelines by the EU and its member states has resulted in many good practice actions towards the support and protection of HRDs. However the guidelines' recommendations are not systematically implemented by all European member states and implementation in EU mission countries around the world is patchy and inconsistent. This article considers EU commitments to effectively implement the guidelines policy tool in practice, including steps taken to integrate the guidelines' operational recommendations within the relatively new process of planning EU Human Rights Country Strategies in mission countries. Drawing from a study for the European Parliament assessing implementation of the guidelines in Kyrgyzstan, Thailand and Tunisia, the author identifies key areas of stakeholders' concerns, and argues for the need to link the EU's efforts towards coherence in human rights policy with on-the-ground approaches towards the protection of HRDs in third countries.

THE INFLUENCE OF EU AND EUROPEAN HUMAN RIGHTS LAW ON ENGLISH PRIVATE LAW

AbstractThis article examines the extent to which EU and European human rights law, following the enactment of the European Communities Act 1972 and the Human Rights Act 1998, have changed the manner in which English courts use comparative law in the private law field. Despite legislative intervention rendering EU law part of the national legal system and requiring the courts ‘to take into account’ the jurisprudence of the European Court of Human Rights, there remains evidence that private law courts retain a preference for comparisons within the common law world. This article will examine, with reference to a number of recent empirical studies, the reasons for this position and what this signifies in terms of future comparative law reasoning.

The Contribution of the European Charter of Human Rights to the Right to Legal Aid

In many countries legal aid is an indispensable tool in order to ensure that everybody has access to the judicial system. In Europe, despite the pride of place that is rightly given to the European Convention on Human Rights, Human Rights guarantees are found also within EU law. EU human rights have long been known to be relevant in the context of fair trial guarantees in general, for example, as they pertain to European Criminal law. But while legal aid makes sense from the perspective of the state and is important for many persons who are involved in legal disputes, the question needs to be asked whether, and if so, how the European Charter of Human Rights contributes to strengthening the right to legal aid?In this article the authors attempt to answer this question by looking at the topic from the perspective of both practicing attorneys and academicians. Based on our practical experience, we begin with the need of poor clients for legal aid, as well as the regulation of legal aid in different states. Afterwards, we will look at the right to a fair trial as it pertains to legal aid, paying attention to legal aid in different cases before answering the question of the EU Charter’s impact on legal aid.

The EU's Human Rights Obligations in Relation to Policies with Extraterritorial Effects

In principle, there are two ways in which states and international organizations can violate the human rights of persons outside their territorial jurisdiction. The first is by extraterri t orial conduct; the second is by domestic conduct, in the form of policies with extraterritor ial effect. This article considers the second of these scenarios, taking as its case study the EU’s obligations under EU law. To this end, it analyses Articles 3(5) and 21(3)(1) of the EU Treaty, EU fundamental rights, and the EU’s international obligations, which are also binding under EU law. It concludes by looking at the enforcement of any such obligations by individuals, the EU institutions, and EU Member States.

The EU's Human Rights Obligations in Relation to Policies with Extraterritorial Effects: A Reply to Lorand Bartels

The scope of human rights is undergoing a paradigm shift, from a territory-based conception to a functional conception, which tends to protect human rights against the extraterritorial exercise of public authority. In the EU domestic system, this is upheld by Articles 3(5) and 21 TUE, which establish the promotion and protection of human rights as a foreign policy directive. However, the normative effect of these provisions is limited. Due to restraints deriving from the EU Treaties, these two provisions do not seem capable of providing a sufficient legal basis for EU action aimed at promoting and protecting human rights. To endow the Union with the means of action necessary to discharge the engaging function of global protector of human rights, a further development of the European constitutional framework seems to be indispensable.

The criminalisation of symbols of the past: expression, law and memory

AbstractThis paper examines the criminalisation of symbols of the past. It considers the 2011 judgment of the Polish Constitutional Tribunal. In this compact and well-ordered decision, the Tribunal, with reference to key European examples, assessed critically the constitutionality of criminal law provisions that prohibit the dissemination and public use of symbols of the past pertaining to fascist, Communist or other totalitarian content. Its ruling, which found amendments to the law in Poland that tightened up restrictions on the use of totalitarian symbols to be unconstitutional, is considered within three important contexts: first, the broad European context, where the concept of totalitarian crimes has become subject to EU human rights legislation relating to the freedom of expression; second, the context of post-dictatorial Europe, where specific states have addressed the use of totalitarian symbols in their respective criminal laws; and finally, the context of transitional justice, where criminalising symbols of the past has become a central and permanent feature in European narratives about justice. Significantly, these cases reveal the temporal element of transitional justice. The paper discusses the two case-studies most relevant to Poland, namely those in Germany and Hungary. Reference is also made to the Baltic States, which, together with Poland, have made a concerted effort to bring the notion of totalitarian crimes and histories to the attention of Europe. The paper concurs with the contention that cases concerning the use of symbols provide an excellent illustration of where memory and law intersect. Using historical, comparative and contextual methodologies the paper demonstrates the legal and philosophical complexities of criminal uses of symbolism, the political realities, and the key dimension of transitional justice and its relationship to expression, law and memory.

The German and Dutch Courtss Application of EU Non-Discrimination Law: Is There a Common Framework?

This paper compares how German and Dutch courts integrate the European equality framework within their national systems. Within the EU, the principle of non-discrimination is well developed and prohibits vertical as well as horizontal discrimination in order to foster substantive equality. Today, it is one of the key elements of the EU human rights policy and covers a wide range of protected grounds. As a result, national courts cannot ignore the EU equality framework. However, the reception of EU non-discrimination law on the national level and, in particular, the national courts’ response to the European challenge to re-address national equality concepts, which often focus on vertical relationships alone, still depends on the national legal and cultural background. This paper evaluates how and to what extent the EU non-discrimination law framework had an impact on the national approaches towards equality, using pregnancy discrimination as the example. As such, it highlights the differences between the Member States and national influences on the application of EU law, but also demonstrates the EU influence – which can promote but also hinder the development of a coherent equality framework.

Compelling criteria? Human rights in the European Union

ABSTRACTThe European Union's (EU) ‘widening’ to post-communist democracies contributed to the ‘deepening’ of integration to human rights: protection of individual (and minority) rights first emerged as EU requirements of democratic consolidation. Here I explore whether the EU deserves its reputation for promoting democratic consolidation by assessing whether transitional democracies meet the ‘Copenhagen Criteria’ on human rights. I find that transitional democracies currently in or acceding to the EU progressed in respecting human rights, but conclude that EU human rights commitments remain shallow and transitions to rights-respecting democracies are reversible.

The EU's Human Rights Obligations in Relation to Policies with Extraterritorial Effects

That states can be responsible for the effects of their economic policies in third countries is not controversial. Thanks to a network of international trade agreements, virtually all states are under obligations designed to protect the economic interests of the producers of imported goods and services. And yet the proposition that states should also be responsible for the human rights effects of such policy measures is not universally accepted. Thus, a subsidy that causes injury to the domestic industry of a WTO Member or a market access barrier that negatively affects conditions of competition for imported products can violate trade obligations. But even if those effects on the producers of those products are severe, it is debatable whether they are capable of violating any given human rights obligations. In short, the extent to which human rights obligations apply to policies with extraterritorial effects is still very much an open question. This article considers the extent to which EU law applies to such policies, which is to say EU policies with extraterritorial effects on persons outside of EU territory. Section A discusses the human rights aspects of Article 3(5) and Article 21 of the Treaty on European Union (TEU), which date from the 2009 Lisbon Treaty. Section B looks at the jurisprudence of the EU Court of Justice on EU fundamental rights as these exist as general principles of EU law and in the EU Charter of Fundamental Rights, as influenced by the European Convention on Human Rights (ECHR). Section C discusses the EU’s obligation to comply with its international obligations, including with the human rights clauses found in all EU trade and cooperation agreements and with customary international law. Section D considers the enforceability of these obligations by the EU institutions and individuals. Section E summarises and concludes.

EU Accession, NGOs, and Human Rights: Discrimination Against the Roma in Slovenia and Croatia

This paper measures discrimination against the Roma (commonly known by the disfavored term Gypsies) to test the ground level efficacy of two strategies of human rights improvement: top-down diffusion and bottom-up change. The study spans three towns, Murska Sobota and Novo mesto in Slovenia and Cakovec in Croatia, and includes over 600 subjects. Levels of discrimination were estimated via trust games played with money, which are particularly appropriate because the Roma are widely stereotyped as cheaters and thieves. The findings suggest that the EU accession process, widely regarded as an exceptionally strong incentive-based mechanism of rights diffusion, does not severely reduce discrimination on the ground. Instead, they suggest that ground level organizing aimed at improving relations between Roma and non-Roma helps reduce discrimination.

La tutela judicial de los derechos fundamentales en el ámbito de aplicación nacional del derecho de la Unión Europea : recientes acotaciones del Tribunal de Justicia y del Tribunal ConstitucionalEspañol = The judicial protection of fundamental rights in the sphere of the national application of EU law : recent remarks by the Court of Justice and by the Spanish Constitutional

Este artículo es un estudio relativo a la tutela judicial de los Derechos Fundamentales cuando se aplica Derecho de la Unión en el ámbito interno, y a cuáles son los principales problemas con los que se topa el Juez nacional que aplica el Derecho de la Unión al llevar a cabo dicha función protectora. El trabajo, dicho de forma más concreta, se centra en el examen de una serie de recientes y decisivas resoluciones jurisdiccionales, dictadas tanto por parte del Tribunal de Justicia de la Unión Europea como por parte del Tribunal Constitucional Español, que analizan problemas y señalan soluciones relativas a esas cuestiones, además de mostrar cuál es la evolución y el estado de la situación al respecto. Se trata de resoluciones que abordan cuestiones de fondo, como, por ejemplo: ¿hasta qué punto es posible utilizar estándares nacionales de protección de los Derechos Fundamentales en situaciones conectadas con el Derecho de la Unión o con su aplicación, en lugar de utilizar el sistema de protección de los Derechos Fundamentales de la Unión Europea? Y asimismo, resoluciones que atienden a cuestiones de dimensión más procesal como la de dirimir hasta qué punto tiene autonomía el Juez nacional a la hora de plantear una petición prejudicial (se entiende a la hora de tutelar derechos reconocidos por normas de la Unión) en relación a las normas procesales nacionales.This article deals with the judicial protection of fundamental rights when EU Law is applied at national level and the main problems national judges have to deal with when applying EU Law as protectors of rights. More precisely, the work is focused on the examination of some recent and decisive judicial decisions, both by the European Court of Justice and by the Spanish Constitutional Court which analyze the problems and address the solutions to those questions besides showing the evolution and current situation in that regard. They are decisions that deal with the merits as for example to which extent it might be possible to use national standards of protection of fundamental rights in situations connected to EU Law or to its application instead of using the system of protection of EU human rights. Likewise, they are decisions which handle with more procedural questions as for example to what extent national judges are autonomous to file a preliminary question (it is understood that when it comes time to protect rights acknowledged by the EU) relative to national procedural rules.

US and EU Human Rights and Democracy Promotion since the Arab Spring. Rethinking its Content, Targets and Instruments

The momentous changes in the Middle East and North Africa have brought the issue of human rights and democracy promotion back to the forefront of international politics. The new engagement in the region of both the US and the EU can be scrutinised along three dimensions: targets, instruments and content. In terms of target sectors, the US and EU are seeking to work more with civil society. As for instruments, they have mainly boosted democracy assistance and political conditionality, that is utilitarian, bilateral instruments of human rights and democracy promotion, rather than identitive, multilateral instruments. The content of human rights and democracy promotion has not been revised.

COMBATING DISCRIMINATION ON THE GROUNDS OF DISABILITY IN INTERNATIONAL AND EU LAW

The article provides for a critical overview of international and in particular EU human rights and non-discrimination frameworks relevant and applicable to unequal treatment of persons with disabilities. Having considered the contents and scope of relevant international human rights and non-discrimination provisions the author turns to the questions as to how these provisions might be exercised, who the rights holders and duty bearers would be and what the challenges of balancing different rights and needs are. The article also includes the definition of the concept of disability in the context of non-discrimination law and examines the dimensions of disability discrimination as defined in international and EU law. The author concludes that international and especially modern EU non-discrimination law establish a wide and inclusive legal framework for dealing with disability discrimination. However, the actual scope of the realisation of international and European legal standards on disability discrimination in each state will depend on the consistency and effectiveness of their national implementation and on the manner of putting them into practice.

The Doctrine of Equivalent Protection: Its Life and Legitimacy Before and After the European Union's Accession to the European Convention on Human Rights

The relationship between the Court of Justice of the European Union (henceforth: Luxembourg Court) and the European Court of Human Rights (henceforth: Strasbourg Court) has been one of the prevailing issues in the human rights debate in Europe. The main crater in the relationship between the two courts is the fact that Strasbourg could not call directly into responsibility the Luxembourg Court due to the fact that EU is not a party in the ECHR, whereas the Luxembourg Court is not likely to obey a Strasbourg ruling without having any international legal obligation to do so. This situation has thus far led to many observations that have called for the accession of the EU to the ECHR, a step that would legalize the relationship between the EU and the Council of Europe, offering critics of human rights an assurance that the EU's human rights regime will become externally controlled by a specialized human rights court.

The Brüstle Case: Has the European Court of Justice Overstepped its Competency in Deciding on the Status of the Embryo?

This paper highlights the legal background by examining the various protected rights and interests in EU law and human rights law. The paper was given at a conference organised by Biopeople and Copenhagen Forum for Biotech & Pharma Law under Centre for Information & Innovation Law, University of Copenhagen, held on March 21, 2012 at Carlsberg Academy in Copenhagen.

A responsible lender? The European Investment Bank’s environmental, social and human rights accountability

This article examines the principles of accountability applied by the European Investment Bank in comparison with the practices of other Multilateral Lending Institutions. After a brief description of the EIB and its activities, the substantive and procedural principles governing the EIB's external accountability are reviewed. The substantive accountability principles considered are the applicable rules of the EU legal order and the voluntary human rights, social and environmental principles and standards which the EIB has identified for itself and committed to follow throughout its operations. The article evaluates the extent to which these norms form a credible normative framework against which the EIB's lending practices can be appraised. From a procedural accountability point of view, the article assesses the transparency and participation policies of the EIB, as well as the mechanisms offered to external stakeholders to seek redress from the EIB in case they are wronged by one of its decisions. The redress mechanisms analysed are the recent EIB's Complaints Office, the European Ombudsman and the Court of Justice. We conclude that the EIB should take more advantage of its being subjected to the EU human rights, social and environmental rules and of the EU judicial apparatus in order to upgrade its substantive and procedural accountability towards external stakeholders.

EU Asylum Law and Human Rights Protection: Revisiting the Principle of Non-refoulement and the Prohibition of Torture and Other Forms of Ill-treatment

Abstract The principal objective of the article is to examine the EU legal framework and international law parameters of legal harmonisation processes in a specific field of human rights protection: asylum legislation. In particular, it is to provide an in-depth analysis of the compatibility of EU asylum legislation with existing international norms in relation to the principle of non-refoulement and the prohibition of torture and other forms of ill-treatment. It also aims at exploring the correspondence and controversies of relevant legal principles and norms under international law. Similarly, it attempts to provide an analysis of the incomplete and inefficient implementation of these international norms and principles by EU asylum law as well.

Market imperative meets normative power: Human rights and European arms transfer policy

Arms transfers are both an economic necessity for the European arms industry and a potential obstacle for the EU’s emerging normative power role. Nevertheless, research on how well EU members’ arms trade mirrors EU normative power rhetoric is scarce. To help fill this void, I use regression analysis to examine the relationship between EU arms exports and human rights, conflict, and democracy in recipient states from 1990 to 2004. A case study of the China embargo debate provides a more in-depth assessment of the politics behind EU arms transfers. Both analyses reveal a questionable relationship between EU norms and arms transfer practices. The findings suggest, first, that domestic-level material and normative concerns remain important to the formation and execution of EU foreign policy and, second, that low levels of EU socialization may hinder the creation of a single European external identity.