human rights considerations, enforcement of security council sanctions and the eu legal order prof....

Human rights considerations, enforcement of Security Council sanctions and the EU legal order

Prof. Dr. Erika de Wet, LL.M. (Harvard)

2 De Wet

Lecture 2: the SC and Regional/ Domestic Courts (1)

 When will ECJ or ECtHR engage in review?

Incidental review

EU versus non-EU member States

Membership in Council of Europe

(Ir)relevance of centralized UN body?

3 De Wet

The SC and Regional/ Domestic Courts (2)

Competence to review?

ECtHR has reviewed other norms of international law Against wide range of rights in ECHR

ECtHR displays reticence re SC resolutions

Behrami (Extra-territoriallity at issue) Can be distinguished from Bophorus/ Kadi/ OMPI

4 De Wet

SC and Regional/ Domestic Courts (3)

ECJ/ ECtHR versus “international” tribunals

Role of ICJ

Role of ICTY (sub-organ)

Who can act on behalf of the “international community”?

Common standards of procedure emerging “spontaneously”?

Are judicial bodies acting as if they belong to the same system?

5 De Wet

SC and Regional/ Domestic Courts (4)

Comparing Bosphorus/ OMPI/ Kadi

Absence of language of contestation (Bosphorus, ECJ)

Attacking implementing measure only (OMPI)

Attacking SC resolution unavoidable (Kadi)

6 De Wet

SC and Regional/ Domestic Courts (5)

Comparing techniques ECJ & ECtR

Harmonization

Increased politicization of ECtHR

Long-standing influence of ECtHR on ECJ

ECJ may have overtaken in the ECtHR in HR protection

7 De Wet

SC and Regional/ Domestic Courts (6)

Comparing Behrami with Kadi etc

Extra territoriality

Political influence on the courts