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