International law, Sixth edition
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International Law MALCOLM N. SHAW
EC Bulletin, Suppl. 2/79. Note that the President of the European Court of Human
Rights suggested in January 2003 that the EU should accede to the Convention: see www.echr.coe.int/eng/Edocs/SpeechWildhaber.htm. 160 See J. Van Der Kaauw, ‘European Union’, 13 NQHR, 1995, p. 173. Note, however, that the European Court of Justice held in Opinion 2/94 that the EC had no competence to accede to the European Convention as it did not have any general human rights competence, [1996] ECR I-1759. 161 See e.g. E. Riedel and M. Will, ‘Human Rights Clauses in External Agreements’ in Alston, The EU and Human Rights, p. 723. r e g i o na l p r o t e c t i o n o f h u m a n r i g h t s 371 respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States’, and provided that the Union ‘shall respect fundamental rights as guaranteed by’ the Eu- ropean Convention on Human Rights. 162 Member states violating these principles in a ‘serious and persistent’ manner risk the suspension of cer- tain of their rights deriving from the application of the Union Treaty. 163 In addition, candidate countries have to respect these principles to join the Union. 164 The European Union adopted the Charter of Fundamen- tal Rights in December 2000. This instrument, for example, notes the principle of the equality before the law of all people, 165 prohibits dis- crimination on any ground, 166 provides for a number of workers’ rights and citizens’ rights, and requests the Union to protect cultural, reli- gious and linguistic diversity. Quite what the legal status of this Char- ter was 167 and how it related to the Strasbourg system were open ques- tions. 168 However, Advocates-General of the European Court of Justice have been referring to the Charter with great frequency as part of a shared set of values within the Union, 169 as has the Court of First In- stance 170 and more recently the European Court of Justice. 171 Further, the Lisbon Treaty, 2007 (which is not as yet in force) provides for article 6 to be revised so that the Charter would have legally binding force 172 and 162 See the discussion by the European Court of Justice of these principles in the context of the European Arrest Warrant, C-303/05, Advocaten voor de Wereld, Judgment of 3 May 2007. See A. Hinarejos, ‘Recent Human Rights Developments in the EU Courts’, 7 Human Rights Law Review, 2007, p. 793. 163 Article 7. See also the amendments introduced by the Nice Treaty, 2001. 164 Article 49. See also the Copenhagen Criteria 1993, including stable institutions guaran- teeing democracy, the rule of law, human rights and the protection of minorities, EC Bulletin 6-1993, I.13. 165 Article 20. 166 Article 21. 167 Note the official UK view that it is a political declaration and not legally binding, 365 HC Deb., col. 614W, 27 March 2001; UKMIL, 72 BYIL, 2001, p. 564. 168 However, article 52(3) of the Charter specifies that any rights that ‘correspond’ to those already articulated by the Human Rights Convention shall have the same meaning and scope. 169 See e.g. BECTU [2001] ECR I-4881 and Netherlands v. Parliament and Council [2001] ECR I-7079. 170 See e.g. J´ego-Qu´er´e v. Commission [2002] ECR II-2365. 171 See e.g. European Parliament v. Council [2006] ECR I-5769 and C-411/04 P, Salzgitter Mannesmann v. Commission, Judgment of 25 January 2007. 172 Although a Protocol to the treaty provides that the Charter does not extend the ability of the Court of Justice to find the law or practices of the UK and Poland to be inconsistent with the Charter and that no new justiciable rights applicable to these states have been created, and that a provision of the Charter referring to national laws and practices shall 372 i n t e r nat i o na l l aw opens the way for the accession of the EU to the European Convention on Human Rights. The Union, more generally, seeks in some measure to pay regard to hu- man rights as internationally defined, in its activities. 173 As noted above, there appears now to be a formal policy, for example, to include a human rights clause in co-operation agreements with third countries, which in- corporates a provision for the suspension of the agreement in case of a breach of the essential elements of the agreement in question, including respect for human rights. 174 The European Parliament is also active in consideration of human rights issues. 175 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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