2.1 Treaties, conventions and constitutions International human rights are part of a much wider area, public international law, which in broad terms encompasses law relating to the legal rights, duties and powers of one nation state in relation to its dealings with other nation states. These rights, duties and powers are set out in international treaties or conventions. Such treaties and conventions may be global in their application or restricted to certain regions of the world. Reference to a work on international human rights treati
1 Unit overview This unit will look at the concept of rights in their broadest sense: a freedom to do or be protected from something; a claim to do or enjoy something; a power to do something which affects others and not to be challenged over that use of power. This concept of rights defines the position of an individual and does not consider collective or majority rights. As you may already know, the subject of righ
8 Review of learning outcomes After studying this unit you should be able to: Part A understand the European Convention of Human Rights system of rights and the mechanism set up for their protection: You have seen that the ECHR emerged from the social and political aftermath of the Second World War. It emphasises individual rights and tries to provide a balance between specific individual and collective rights. Som
7.3 Summary of Part F The constitutional dimension of the EU has been continuously developing. It is influenced by changes both in the membership of the EU and by a desire to develop and strengthen the EU. Part of this development is reflected in the negotiations towards the adoption of a new EU constitution. This part of the unit has given you the opportunity to appreciate the complexity of this process. Whether the proposed new EU constitution merely consolidates existing legal provisions or whether it brings ab
7.2 An EU constitution: moving the debate on In the next activity you will be able to build upon the previous one and observe the way in which the debate on the new EU constitution has progressed and moved to another level on its way to ratification. 7.1 Towards a constitution The European treaties establishing the European Union: create an institutional structure for decision making, and set out the freedoms of the individuals and the limits of the decision-making powers over the citizens. The treaty establishing a constitution for Europe was signed by the member states in October 2004. However, at the time of writing (2005), the process of ratification is in abeyance following the rejecti 6.6 Summary of Part E In Part E you have had the opportunity to appreciate the relationship between the EU law and the domestic law of the EU member states. The principles guiding this relationship do not form part of the founding treaties of the EU but have been distilled by the ECJ from the aims of the Community as set out in those founding treaties. You have been introduced to: the principle of supremacy: in cases of conflict EU law prevails over the domestic law 6.5 The principle of subsidiarity This is defined in Article 5(1) EC and 5(2) EC. It requires decision-making bodies with responsibility for larger areas to perform only those functions that decision-making bodies with responsibility for smaller areas cannot fulfil themselves. For instance, the Treaty requires the Community to take action ‘only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States …’ and can ‘by reason of the scale or effects of t 6.4 The principle of proportionality This principle has been developed and refined by the ECJ and is also covered by Article 5 EC: Any action of the Community shall not go beyond what is necessary to achieve the objectives of this Treaty. However, given that the objectives of the Community are defined very widely in Article 2 EC, the principle of proportionality is not always the easiest tool for curbing EU legislative enthusiasm. 6.3 The principle of direct effect Does the principle of supremacy of EU law mean that the ECJ is the only court in charge of applying and enforcing EU law? The answer to this question is ‘no’, which is the consequence of the principle of direct effect. Certain provisions of EU law may confer rights or impose obligations on individuals that national courts are bound to recognise and enforce. This means that the national courts must apply the directly applicable EU rules and must do so in priority over any conflicting 6.2 The supremacy of EU law Whenever there is a conflict between the provisions of EU law and the provisions of the domestic (national) law of a member state, then EU law will prevail. This is a principle which was developed by the ECJ as the relationship between domestic and EU law is not clarified by treaty provisions. This is an important principle, as it ensures the proper functioning of the EU. If an EU member state had the power to annul EU law by adopting new domestic (national) law which was in conflict with the 6 1 The relationship between EU law and domestic law It is important to understand the relationship between EU law and the domestic (national) law of the EU member states. This is guided by a number of important principles. Except for third party materials and otherwise stated (see terms and conditions), this content is made available under a 5.4 Summary of Part D Table 3 summarises the main aspects of Part D. 5.3.4 Recommendations and opinions These have no binding force and therefore are ineffective as Community law. However, they can have ‘persuasive authority’. If a recommendation or opinion is ignored, it may later be followed up with a stronger legislative initiative, such as a decision or directive. 5.3.3 Decisions A decision is an individual act emanating from an EU institution and addressing particular individuals, firms or EU member states. It is a legal tool designed to allow the Community institutions to order that a measure be taken in an individual case. The decision therefore, unlike the regulation or directive, is of individual application, and is binding only upon the persons to whom it is addressed. Except for third party materials and otherwise stated 5.3.2 Directives A directive is a Community act which ‘shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods’. A directive therefore has to be implemented by each EU member state through its own domestic legislative process. After the enactment of a directive, the EU member states will generally be given a period of time within which to bring their domestic law in line with the obj 5.3.1 Regulations A regulation is a Community act, which ‘shall have general application. It shall be binding in its entirety and directly applicable in all Member States.’ Regulations are directly applicable, which means that once they have become EU law they apply immediately in all EU member states. They do not need implementation by the member states. Regulations come into force 20 days after their publication in the European Union's official journal, unless otherwise specified. 5.3 EU secondary legislation Law made by the EU institutions in exercising the powers conferred on them by the treaties is referred to as secondary legislation. This legislation includes: regulations directives decisions recommendations opinions. Another EU institution often required to contribute to the EU law-making process is the European Court of Justice. This has two main functions: 5.2 EU primary legislation In Part B we learned that the different stages in the development of the EU have been marked by the adoption of intergovernmental documents called ‘treaties’. These are the first source of EU law and contain the founding legal acts. They contain the basic provisions and the majority of EU economic law. The treaties also create the decision- and legal rule-making powers of the EU institutions. Except for third party materials and otherwise state 5.1 EU law The main sources of EU law are: EU primary legislation, represented by the treaties EU secondary legislation, in the form of regulations, directives, decisions, recommendations and opinions rulings on cases brought before the European Court of Justice. EU law is created by the legislative powers with which the EU member states have invested the EU institutions. The law created by EU institutions is al
Activity 7 A snapshot from the EU constitutional debate (2)
Table 3 Types of law and their effects
Type of law
Effect
Treaties
Directly applicable
Regulations
Directly applicable
Activity 4 The EU law-maki
