Protection of Human Rights - Research Paper Example

137354 The European court of Justice (ECJ) and the European Court of Human Rights (ECHR) are not only of mutual benefit, but also are complimentary to one another. ECHR, also called Strasbourg Court, is mainly to hear the complaints about Human Rights violations in the Member States that could be contradicting principles laid down in Convention for the Protection of Human Rights and Fundamental Freedoms approved in 1950 by Council of Europe. For ECHR, regularising the Human rights violations committed by the Member states is its main work. If citizens belonging to any of the Member States feel that their rights are encroached upon, they have the admissibility to complain to ECHR. If complainants were unhappy with the initial three judge decisions in ECHR, and then the Full Chamber, they can further complain to the Grand Chamber and all the decisions (in the given fields) are binding on Member States. The Committee of Ministers supervise and ensure that all judgements are carried out by the particular member state. Member state could be marginalised if refuses to honour such judgements. "However, the ultimate sanction of non-compliance is expulsion from the Council of Europe and thus becoming a 'pariah' state within Europe", http://en.wikipedia.org/wiki/European_Court_of_Human_Rights Even though explicitly ECJ is not only for Human Right violations like ECHR, there are many cases where issue touches both the courts and eventually, these two law bodies pass judgements in supportof one another. In the Cossey case1 (ECHR, 1990), of sex change, it upheld applicant's claim that she has lived a woman's life, and after the operation, she was a complete woman, and is capable of marrying a man and claim all benefits reserved for women and this was a landmark judgement. The European convention of Human Rights established The European Court of Human Rights as the law making body, governing and securing the human rights that has been approved by the Convention. Court has the power to award damages, decide punishments and direct the Member States. "The establishment of a Court to protect individuals from human rights violations is an extremely innovative feature for an international convention on human rights, as it gives the individual an active role on the international arena" http://en.wikipedia.org/wiki/European_Convention_on_Human_Rights The European convention is perhaps the highest body in the world that provides great amount of protection of the individual human rights of a person, as opposed to another person and also against member states. There is a rarely used option of one State complaining against another state in matters of Human Rights. Human rights enshrined by the Convention are (from Article 1 to 27): obligation to respect human rights, right to life, prohibition of torture, prohibition of slavery, right to liberty and security, right to a fair trial, no punishment without law, right to respect for private life, right to freedom of thought, conscience and religion, right to freedom of expression , right to freedom of assembly and association, right to marry, right to an effective remedy, prohibition of discrimination, derogations, exemption for political activities of aliens, prohibition of abuse of rights, limitation on permitted restrictions of rights etc. and the Protocols are concerned with right to property, education and free elections, civil imprisonment, freedom of movement, expulsion, death penalty, expulsion, criminal appeals, compensation, double jeopardy, spousal equality, discrimination, death penalty, changing the conventions machinery etc. Though set up in 1950, ECJ did not start functioning till 1959. Almost all the cases that are solved by ECJ are connected with civil rights, political rights and freedoms. The cases come perilously close to the same work done by ECHR, in either a bigger scale, or connected with some other area. After 1980, the number of cases grew steadily and today the annual applications received are above 14,000 and the number is increasing every year. Human Rights that were glorified through the Convention are based on Magna Carta of 1215 that provided justice and right to fair trial for all. Today almost all the member states have incorporated these rights into their own law of the land and they deal with it in their own way and only those individuals or institutions, which have already exhausted all the avenues available in their home countries, can, as a last resort, approach the ECHR. This reduces the work load of ECHR while keeping options open for people with grievance. Scotland's ceasing to have temporary sheriffs; UK's outlawing corporal punishments, Denmark's updating law of illegitimate children, all come under amended Human Rights with stress on individual freedom and comfort. But UK granted the individual petitioning right to its citizens only in 1966, even though UK had been one of the first members of the Council of Europe that ratified the Convention and its regulations in the year 1951. European court of justice, based in Luxembourg, is the Supreme Court of European Union, deals with most of the matters relating to citizens of Member States. It has supremacy over whole of Europe and enjoys superiority over all other courts belonging to the Member States and the judgements passed by ECJ are binding on State Law giving bodies, on certain specific issues coming under its control. . It is the Supreme Court of the European Union. Member states have their own law giving bodies that are adequate for their citizens. "EU member states' supreme courts, or equivalent, are the highest courts in their respective jurisdictions in all other matters, as each nation state has its own sovereign and different legal and jurisprudence systems", http://en.wikipedia.org/wiki/European_Court_of_Justice Mainly it adjudicates on matters between Member States, their conflicts, decisions of 'rogue' states that could be violating human rights or EC law, and upholding European Union law. It also deals with claims of member states complaining that European Commission has overstepped its prescribed authority. Rulings on particular clarity matters as reply to questions from Member States are binding on them. But the actual cases have to be disposed off by law bodies of member states, in accordance with the directives of ECJ. The major difference between ECHR and ECJ is unlike ECHR; individuals cannot approach ECJ, but can approach it through an institution, if unsatisfied by a judgment of Court of First Instance on points of law. "The ECHR is an essential source of law in the EU human rights jurisprudence, even if the EU/EC is not a Contracting Party to the Convention" http://www.jeanmonnetprogram.org/papers/01/010401-02.html The court mainly solves human rights encroachment problems of individuals2 and sometimes of general public depending on the situation. ECJ mostly tries to avoid tensions between the member states and institutions3. Both these courts are supposed to be crossing the borders and blurring the sovereignty of European countries. But it is argued that it is a small price to pay to have human rights and free trade which will make all European countries strong, irrespective of their wealth or poverty. This cannot be done without these two courts officiating transnational rules and reducing tension between countries. European Union experience is considered to be model for other regions of the world, which is impressed by the way these countries stood above the traditional distrust and hatred, and worked for a common ground to avoid future Hitlers and Mussolinis. In spite of this, there are scholars who voice their opinion that a supervisory body should be in place to see that ECJ adheres to Human Rights. "An external supervisory mechanism would be preferable to supervision by the Court of Justice of the European Communities (ECJ), if only from the viewpoint of maximum independence and objectivity, though the ECJ has demonstrated that it takes the human rights enshrined in the ECHR seriously and adheres in broad outline to the interpretation of these rights by the European Court of Human Rights" http://www.ombudsman.nl/english/ombudsman/publications/eu.asp It is not always easy for these two courts to officiate. They have to face many problems, especially from member states. "In Europe, transnational courts such as the European Court of Human Rights (ECHR) and the European Court of Justice (ECJ) began unraveling the link between territory and rights in asserting that even though human rights treaties and conventions set territorial limits, the "fundamental values" of democratic societies require cross border intervention. More recently, states have joined in asserting their own authority beyond state bounds" http://humanrights.uchicago.edu/workshoppapers/Ruffer.pdf Immigration is one such issue where all lines are blurred and both the courts are working closely for a permanent solution without harming the political issues of member states. Because of multilayering of law in EU, it is popularly said that judicial authority has become more of a thickening web today. It is also stated that as a result, human rights will have an opportunity of gaining additional judicial authority. The international refugee crisis, the Right of asylum in the creation of freedom, justice and security, and the role of the courts in defining the Right of Asylum are all dealt by these two law making bodies. This does not mean that human rights were invented by EC. Human rights have always been a part of national and international law, in every part of the world, and many transnational agencies and institutions have been forever fighting for the justice of individuals. Actually Human Rights had always been the basic of every law in every country since time immemorial, as it was part of natural law. "Human rights have long been understood as "other" to citizenship rights which enjoy the security of the institutions of a nation state. Human rights derive from natural law and must rely on the political agents of the state assuming a moral obligation for their implementation. Human rights as a political innovation, have lacked an authoritative institutional structure" http://humanrights.uchicago.edu/workshoppapers/Ruffer.pdf ECJ is not as easily accessible as ECHR and there is no doubt about it. This is because they have been created that way, so that they would not be doing the same work. Their work had been separated in a mild way and functions are clear to follow. But the fact remains that even though these two bodies were created for two different purposes, their ultimate goal seems to be identical. "The findings reveal how rights and access to legal institutions shape the way courts serve as arenas for public participation-a consequence that brings into question dominant theories of international organization and comparative studies of judicial politics4" Chichowsky (2005). Today, both, especially ECJ have become sources of impressive case laws. After their being established these two institutions never looked back, but advanced from strength to strength and managed to take the citizens along with it. "Consequently, an important body of European Court of Justice (ECJ) case law has accumulated defining what it is to be a family member and delineating the level of social entitlement available to them, particularly in the context of the free movement provisions" International Journal of Law, Policy and the Family, (2002)5. The European Court of Human Rights, on 30 June 2005, handed down its long awaited judgment in the case Bosphorus Hava Yollari Turizm v.Ireland. The case was concerned with the responsibility of contracting parties for legal measures induced by the European Community where a Yugoslav Airways was seized by Irish authorities according to EC directive. The individual human rights of the passengers were upheld by the ECJ and in similar cases; ECJ is actually doing the work of ECHR. "If the Court finds that the national measure violates Community law, it gives judgement against the Member State. The judgement takes the form of a declaration that the Member State has failed to fulfil its obligation under the Treaties and the Court specifies what act or omission is the source of infringement," Schwarze (1988, p.16). Failure to act by the Member States covers individual citizens too. It is not just lack of cooperation between EU States, it is also violation of Human Rights of citizens of member states too. ECJ has always upheld some stringent restrictions to be adhered with: "In Case 25 (62 Plaumann {1963} ECR 95, where the Court stated (at p. 107) : "Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed," Dine et al (1991, p.20). Another field that is gaining ground in both the courts is environment. Relationship between human rights and environment is mentioned in the preamble of Stockholm Declaration. Rio declaration says: "Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature," Dejeant-Pons (2002, p.13). Human rights could be terminated during wars and acute national emergencies. On the whole, it is important to note that both the courts are beneficial to one another, and both carry out judicial work of the EU. Both are equally necessary to carry out the Human Rights watch. They safeguard individual human rights, benefits, duties; admonish member state governments if their directives are ignored. They are complimentary to one another in their activities. BIBLIOGRAPHY: 1. Bagshaw, Simon (1994), The Protection of Human Rights in Europe, University of North London. 2. Chichowsky, Rachel A. (2005), Comparative Political Studies, Vol. 39, No. 1, 50-75 (2006,) Sage Publications, London. . 3. Dejeant-Pons, Maguelonne and Pallemaerts, Marc (2002), Council of Europe Publishing, Strasbourg. . 4. Dine, Janet, Sionaidh Doughas-Scott, Ingrid Persaud (1991), Procedure and the European Court, Centre of European Law, London. 5. Human Rights Today, European Legal Texts, (1999), Council of Europe Publishing 6. Usher, John A. (1983), European Court Practice, Sweet and Maxwell, London. 7. Schwarze, Jurgen (1988), The Role of the European Court of Justice (ECJ) in the Interpretation of Uniform Law among the Member States of the European Communities (EC), Eurpean University Institute, Florence. ONLINE SOURCES: 1. http://en.wikipedia.org/wiki/European_Court_of_Human_Rights 2. http://en.wikipedia.org/wiki/European_Convention_on_Human_Rights 3. http://en.wikipedia.org/wiki/European_Court_of_Justice 4. http://www.ombudsman.nl/english/ombudsman/publications/eu.asp 5. http://www.jeanmonnetprogram.org/papers/01/010401-02.html 6. http://humanrights.uchicago.edu/workshoppapers/Ruffer.pdf 7. http://humanrights.uchicago.edu/workshoppapers/Ruffer.pdf 8. Read More