A. Can the family bring a claim against the EU Agency before the European Court
of Human Rights for violation of the ECHR?
- The family can´t bring a claim against the EU Agency before the European
Court of Human Rights for violation. Frontex (Coast Guard Agency of the
European Union) is part (an agency) of the European Union and therefore the
family can´ t bring a claim before the Court. They have to go to the Court of
Justice and not the Court of Council. According to article 51 of the Charter
agencies are only bound when EU law is in order and not national law.
● There are two different legal orders:
I. EU: European Union Handvest (supranational order) → treaty
(verdrag) : Charter.
➢ Court EU: CJEU (Court of Justice of the EU);
➢ CFR is directed to respect human rights (members and
individuals). The state member has to protect the rights
according to article 51 Charter.
II. COE: Council of Europe →treaty: ECHR (Convention)
➢ Court: ECtHR;
➢ ECHR is directed to respect the human rights:
members of the convention according to article 1
ECHR.
➔ Article 34 ECHR allows individuals to go directly to the ECtHR. The family can´t
pursue a claim before this court, because Frontex is part of the EU. Therefore they
have to go to the CJEU.
❖ It would have been different if it was Greece. Then you can go to ECtHR,
because Greece is part of the Council of Europe and not the EU.
B. If they want to rely on the ECHR in the procedure before the domestic court, is
it relevant whether Greece has a dualist or monist system? And is that relevant
if they appeal to EU law, for example a Directive?
- It is the domestic law that makes the determination whether international law
has to be translated into national law, but the fact that it is legal and has
power is determined by the international agreement. In the EU the Member
States don’t get to choose if an act is valid, but they are able to decide if it has
to be national law first.
- Under the EU law it is irrelevant whether Greece has a dualist or monist
system. The reason therefore is explained in Van Gend & Loos: the court
stated that the EU constitutes as a new legal order of international law for the
benefit of which states have limited their sovereign rights. Accordingly, it can
be said that many provisions of EU law are capable of being directly
applicable throughout the whole European Union. EU law makes every state
monist, directly applicable. Therefore, it is irrelevant.
,Aantekeningen vraag C
● Direct effect: individuals can go to every national court in Europe and invoke EU-law
in the national court directly. Van Gend & Loos (article 12 Treaty): (1) clear, (2)
unconditional) and (3) implemented before the deadline has passed ex Van Duyn.
● If the Directive complies with the conditions named in Van Gend & Loos, it has direct
effect against States.
★ Direct effect: individuals can go to every national court in Europe and invoke
EU-law in the national court directly. So it is focused on individuals.
★ Direct applicable: this is law and the EU decides if you can apply and how you
can apply. That it applies immediately doesn't mean that there is a direct
effect. The rule needs to be clear and unconditional as well.
Recap of Law
1. Primary law → Treaties in the Charter have direct effect, higher laws;
- TEU: verdrag betreffende de Europese Unie;
- Article 6 lid 1 TEU says that the Charter has the same value as the other
treaties.
- TFEU specifies how the EU works.
2. Secondary law → Lower laws;
- The directions, regulations have direct effect and Directives (richtlijnen) need
to be implemented.
3. All EU law is binding for all the member States.
C. Can the lawyer appeal to Article 12 of the Return Directive before the Greek
domestic court?
- To check if the Directive has a direct effect, we need to use Van Gend &
Loos. The Directive has to be clear, unconditional and the deadline of
implementing (of the entire Directive and not just an article) can´t be passed
(Van Duyn).
- The article undertakes actions by the Government. This means that it is a
negative obligation and the Directive does not have a direct effect before the
Greek domestic court. The lawyer cannot appeal to article 12.
➢ Using the word shall means an obligation. It is a must. When is it
conditional? When they use the word may.
D. A brief pitch about how the ideal of human rights relates to the practice of
human rights.
The ideals of human rights are based on shared, basic values. These values are defined and
protected by law. The values or ideals are written down, but they need to be practiced in real
life. Unfortunately, some people or organizations abuse their power. This is what the
Guardian article is about. You can lay down so many ideals, but if they are not practiced the
right way, then the ideals aren´t worth a thing. The ideals need to be a guideline for states or
organizations to practice human rights. Only not everyone listens to guidelines.
Week 2
A. Can you find a similar provision in the ECHR? If not, why would such a
provision lack? And in its absence, would it be possible to appeal to the
protection provided by the right to a clean or satisfactory environment under
another provision in the ECHR?
- I haven´t found a similar provision in the ECHR. The lack of the provision is
because of the time the ECHR was written. Social rights were not included
during those years. There was a separate charter for these rights.
, ➔ Article 2 ECHR is the right to life. The first sentence says that
everyone's right to life shall be protected by law. This is a possibility to
appeal to the protection for a clean or satisfactory environment.
➔ You can also argue article 8 ECHR right to respect for private and
family life. The government needs to make sure that you can live
your private life in a healthy environment. That's why you can use this
article to make an appeal for a clean or satisfactory environment.
B. The Charter refers to environmental protection in article 37. Reflect on the
differences between article 37 of the EU Charter and Article 24 of the African
Charter.
- The EU Charter has more criteria. It states that environmental protection must
be integrated into the policies. The African Charter misses such a criteria.
- The EU Charter is more specific then the African Charter. In the EU Charter
you must integrate and there has to be a high level of environmental
protection. The African Charter says that there should be a general
satisfactory. Last named is less strict and tough than the European version.
- The EU Charter is more of an explanation on how the right should be
implemented. Who is in charge of making this right happen and it seems
more of a policy and not a right. The African Charter is more directed to the
people and giving them their rights.
- The EU Charter and the African Charter is a positive obligation, but the EU
Charter is more explicit than the African Charter.
➔ What is a negative obligation? The State should refrain from
interfering. The prohibition of the state. What is a positive
obligation? An invitation to protect and fulfill the rights.
C. Reflect on whether climate cases require novel approaches to jurisdiction
under Article 1 ECHR. In your answer, you engage with the ECtHR judgment in
Al Skeini in which the ECtHR mentioned a number of situations in which states
are bound to respect and protect human rights outside their territories under
Article 1 ECHR.
➔ Scope of Application →ECHR →Article 1 ECHR →Question: What does
jurisdiction mean? And what types of jurisdiction do we have?
➔ Al Skeini →p. 48 en 49;
, - Al Skeini gives a number of situations in which states are bound to respect
and human rights:
1. The territorial principle;
➢ Primarily territorial, but there are exceptions par. 10;
2. State agent authority and control;
I. Diplomatic and consular agents par. 13;
II. A consent, invitation or acquiescence of another country to
govern instead of the country. So act like you are the
Government in their country par. 14;
III. Use of force by a State´s agent operating outside its territory
may bring the individual thereby brought under the control of
the State´s authorities into the State´s Article 1 jurisdiction par.
15. →So you have a State´s agent who is using force outside
of their own territory against an individual, so that means that
the State where the agent comes from is responsible.
3. Effective control over an area.
➢ A military occupation, a war par. 17.
- Yes, climate cases require novel approaches to jurisdiction, because in the Al
Skeini case it is determined that when you have effective control over an
area, you still have jurisdiction. Even if it is outside of your territory. States
have a say over their governments, so therefore they have effective control.
Furthermore they make laws regarding the protection of the climate.
Class assignment
B. Can Corrie appeal to the Charter of Fundamental Rights of the EU in the domestic
courts of Spain? Does it matter whether Spain has a monist or dualist system? Which
rights protected by the Charter can she specifically appeal to?
➔ So Article 51 of the Charter is about the scope of the Charter: when is it applicable?
Is Spain implementing Union law? If it is, then it will fall under the scope of the
Charter. → Based on Article 51 of the Charter you need to be implementing Union
law. Spain is using Union law, because of the European Arrest Warrant. Therefore
Corrie can appeal to the Charter in the domestic courts of Spain.
➔ The Charter has a direct effect. That is noted. It doesn't matter if Spain has a monist
or dualist system, because it has direct effect and for the Charter it is not relevant.
➔ She is protected by Article 47 for an effective remedy and a fair trial, legal aid and
Article 11 to get the right information about her trial and evicted to the Netherlands.
D. Which human right is protected under Article 6 ECHR? What kinds of obligation by
the state does this right entail? Can Corrie appeal to Article 6 ECHR in the domestic
criminal proceedings?
➔ Right to a fair trial is protected under Article 6 ECHR. When the civil rights and
obligations are being determined or of any criminal charge against him, you have the
right to a fair trial and public hearing within reasonable time by an independent
tribunal established by law. The State has to presume you are innocent of the crime
of Human Rights for violation of the ECHR?
- The family can´t bring a claim against the EU Agency before the European
Court of Human Rights for violation. Frontex (Coast Guard Agency of the
European Union) is part (an agency) of the European Union and therefore the
family can´ t bring a claim before the Court. They have to go to the Court of
Justice and not the Court of Council. According to article 51 of the Charter
agencies are only bound when EU law is in order and not national law.
● There are two different legal orders:
I. EU: European Union Handvest (supranational order) → treaty
(verdrag) : Charter.
➢ Court EU: CJEU (Court of Justice of the EU);
➢ CFR is directed to respect human rights (members and
individuals). The state member has to protect the rights
according to article 51 Charter.
II. COE: Council of Europe →treaty: ECHR (Convention)
➢ Court: ECtHR;
➢ ECHR is directed to respect the human rights:
members of the convention according to article 1
ECHR.
➔ Article 34 ECHR allows individuals to go directly to the ECtHR. The family can´t
pursue a claim before this court, because Frontex is part of the EU. Therefore they
have to go to the CJEU.
❖ It would have been different if it was Greece. Then you can go to ECtHR,
because Greece is part of the Council of Europe and not the EU.
B. If they want to rely on the ECHR in the procedure before the domestic court, is
it relevant whether Greece has a dualist or monist system? And is that relevant
if they appeal to EU law, for example a Directive?
- It is the domestic law that makes the determination whether international law
has to be translated into national law, but the fact that it is legal and has
power is determined by the international agreement. In the EU the Member
States don’t get to choose if an act is valid, but they are able to decide if it has
to be national law first.
- Under the EU law it is irrelevant whether Greece has a dualist or monist
system. The reason therefore is explained in Van Gend & Loos: the court
stated that the EU constitutes as a new legal order of international law for the
benefit of which states have limited their sovereign rights. Accordingly, it can
be said that many provisions of EU law are capable of being directly
applicable throughout the whole European Union. EU law makes every state
monist, directly applicable. Therefore, it is irrelevant.
,Aantekeningen vraag C
● Direct effect: individuals can go to every national court in Europe and invoke EU-law
in the national court directly. Van Gend & Loos (article 12 Treaty): (1) clear, (2)
unconditional) and (3) implemented before the deadline has passed ex Van Duyn.
● If the Directive complies with the conditions named in Van Gend & Loos, it has direct
effect against States.
★ Direct effect: individuals can go to every national court in Europe and invoke
EU-law in the national court directly. So it is focused on individuals.
★ Direct applicable: this is law and the EU decides if you can apply and how you
can apply. That it applies immediately doesn't mean that there is a direct
effect. The rule needs to be clear and unconditional as well.
Recap of Law
1. Primary law → Treaties in the Charter have direct effect, higher laws;
- TEU: verdrag betreffende de Europese Unie;
- Article 6 lid 1 TEU says that the Charter has the same value as the other
treaties.
- TFEU specifies how the EU works.
2. Secondary law → Lower laws;
- The directions, regulations have direct effect and Directives (richtlijnen) need
to be implemented.
3. All EU law is binding for all the member States.
C. Can the lawyer appeal to Article 12 of the Return Directive before the Greek
domestic court?
- To check if the Directive has a direct effect, we need to use Van Gend &
Loos. The Directive has to be clear, unconditional and the deadline of
implementing (of the entire Directive and not just an article) can´t be passed
(Van Duyn).
- The article undertakes actions by the Government. This means that it is a
negative obligation and the Directive does not have a direct effect before the
Greek domestic court. The lawyer cannot appeal to article 12.
➢ Using the word shall means an obligation. It is a must. When is it
conditional? When they use the word may.
D. A brief pitch about how the ideal of human rights relates to the practice of
human rights.
The ideals of human rights are based on shared, basic values. These values are defined and
protected by law. The values or ideals are written down, but they need to be practiced in real
life. Unfortunately, some people or organizations abuse their power. This is what the
Guardian article is about. You can lay down so many ideals, but if they are not practiced the
right way, then the ideals aren´t worth a thing. The ideals need to be a guideline for states or
organizations to practice human rights. Only not everyone listens to guidelines.
Week 2
A. Can you find a similar provision in the ECHR? If not, why would such a
provision lack? And in its absence, would it be possible to appeal to the
protection provided by the right to a clean or satisfactory environment under
another provision in the ECHR?
- I haven´t found a similar provision in the ECHR. The lack of the provision is
because of the time the ECHR was written. Social rights were not included
during those years. There was a separate charter for these rights.
, ➔ Article 2 ECHR is the right to life. The first sentence says that
everyone's right to life shall be protected by law. This is a possibility to
appeal to the protection for a clean or satisfactory environment.
➔ You can also argue article 8 ECHR right to respect for private and
family life. The government needs to make sure that you can live
your private life in a healthy environment. That's why you can use this
article to make an appeal for a clean or satisfactory environment.
B. The Charter refers to environmental protection in article 37. Reflect on the
differences between article 37 of the EU Charter and Article 24 of the African
Charter.
- The EU Charter has more criteria. It states that environmental protection must
be integrated into the policies. The African Charter misses such a criteria.
- The EU Charter is more specific then the African Charter. In the EU Charter
you must integrate and there has to be a high level of environmental
protection. The African Charter says that there should be a general
satisfactory. Last named is less strict and tough than the European version.
- The EU Charter is more of an explanation on how the right should be
implemented. Who is in charge of making this right happen and it seems
more of a policy and not a right. The African Charter is more directed to the
people and giving them their rights.
- The EU Charter and the African Charter is a positive obligation, but the EU
Charter is more explicit than the African Charter.
➔ What is a negative obligation? The State should refrain from
interfering. The prohibition of the state. What is a positive
obligation? An invitation to protect and fulfill the rights.
C. Reflect on whether climate cases require novel approaches to jurisdiction
under Article 1 ECHR. In your answer, you engage with the ECtHR judgment in
Al Skeini in which the ECtHR mentioned a number of situations in which states
are bound to respect and protect human rights outside their territories under
Article 1 ECHR.
➔ Scope of Application →ECHR →Article 1 ECHR →Question: What does
jurisdiction mean? And what types of jurisdiction do we have?
➔ Al Skeini →p. 48 en 49;
, - Al Skeini gives a number of situations in which states are bound to respect
and human rights:
1. The territorial principle;
➢ Primarily territorial, but there are exceptions par. 10;
2. State agent authority and control;
I. Diplomatic and consular agents par. 13;
II. A consent, invitation or acquiescence of another country to
govern instead of the country. So act like you are the
Government in their country par. 14;
III. Use of force by a State´s agent operating outside its territory
may bring the individual thereby brought under the control of
the State´s authorities into the State´s Article 1 jurisdiction par.
15. →So you have a State´s agent who is using force outside
of their own territory against an individual, so that means that
the State where the agent comes from is responsible.
3. Effective control over an area.
➢ A military occupation, a war par. 17.
- Yes, climate cases require novel approaches to jurisdiction, because in the Al
Skeini case it is determined that when you have effective control over an
area, you still have jurisdiction. Even if it is outside of your territory. States
have a say over their governments, so therefore they have effective control.
Furthermore they make laws regarding the protection of the climate.
Class assignment
B. Can Corrie appeal to the Charter of Fundamental Rights of the EU in the domestic
courts of Spain? Does it matter whether Spain has a monist or dualist system? Which
rights protected by the Charter can she specifically appeal to?
➔ So Article 51 of the Charter is about the scope of the Charter: when is it applicable?
Is Spain implementing Union law? If it is, then it will fall under the scope of the
Charter. → Based on Article 51 of the Charter you need to be implementing Union
law. Spain is using Union law, because of the European Arrest Warrant. Therefore
Corrie can appeal to the Charter in the domestic courts of Spain.
➔ The Charter has a direct effect. That is noted. It doesn't matter if Spain has a monist
or dualist system, because it has direct effect and for the Charter it is not relevant.
➔ She is protected by Article 47 for an effective remedy and a fair trial, legal aid and
Article 11 to get the right information about her trial and evicted to the Netherlands.
D. Which human right is protected under Article 6 ECHR? What kinds of obligation by
the state does this right entail? Can Corrie appeal to Article 6 ECHR in the domestic
criminal proceedings?
➔ Right to a fair trial is protected under Article 6 ECHR. When the civil rights and
obligations are being determined or of any criminal charge against him, you have the
right to a fair trial and public hearing within reasonable time by an independent
tribunal established by law. The State has to presume you are innocent of the crime
