Schlagwort-Archive: Council of Europe

Giegerich: Struggling for Europe’s Soul

Allgemein, ,

Last week, issue 3/2022 of the Zeitschrift für Europarechtliche Studien (ZEuS) came out. It includes Professor Giegerich’s article “Struggling for Europe’s Soul: The Council of Europe and the European Convention on Human Rights Counter Russia’s Aggression against Ukraine” (p. 519 – 557). 

This is the Abstract: “Russia was expelled from the Council of Europe with immediate effect and also from the ECHR with a six-month delay. The expulsion was based on Russia’s war of aggression against Ukraine which actually began in 2014 and only intensified in 2022. It was inevitable in view of the fact that Russia had not only distanced itself from the values of the CoE and the ECHR, but started to actively undermine them. This becomes evident from an overview of the pertinent case law of the European Court of Human Rights and Russia’s increasingly assertive unwillingness to comply with the Court’s decisions. While the pertinent resolutions by the Committee of Ministers and the ECtHR were made in accordance with the CoE Statute and the ECHR both procedurally and substantively, they should have been better explained to the European and world public. Russia has meanwhile begun to boycott the ECtHR procedures in violation of Art. 58 ECHR.”

Thomas Giegerich concludes his article with the following observations (footnotes omitted): “The attempt by the signatories of the Charter of Paris to build a united Europe, together with a transforming Russia, on the basis of human rights, democracy and the rule of law has unfortunately failed, because Russia left the common ground of values. Instead it returned to 19th century imperialist policies of power, violence and territorial conquest that were outlawed first by the Briand-Kellogg Pact and then for good by the UN Charter. We must not let it and its brothers in spirit succeed in distorting the international legal order of human dignity and self-determination built around the UN Charter and the CoE Statute into “authoritarian international law” or outright legal nihilism. Yet, while facing the unpleasant truths of today we should not stop in our efforts to promote transformation in both Russia and Belarus so that we can tomorrow resume construction work on our common European house, firmly founded on the ideals of the Charter of Paris for a New Europe, the CoE Statute as well as the ECHR and Protocols. The dream of 1990 lives on and its time will come.”

Das Bild zeigt das Gebäude des Europarats in Straßburg.

Giegerich: Whither Treaty Monitoring in the Council of Europe?

Allgemein, , , , ,

Soeben ist ein Beitrag von Univ.-Prof. Giegerich unter diesem Titel im von Stefan Kadelbach und Rainer Hofmann herausgegebenen Band „70 Years of Human Rights and the Rule of Law in Europe” erschienen. Prof. Giegerich zieht darin u.a. diese Schlussfolgerungen:

„Treaty monitoring in the Council of Europe provides a very diverse picture. The elaborate system of the ECHR with compulsory inter-State and individual application procedures leading to binding judgments of a true international court, the ECtHR, has set a standard unmatched anywhere in the world. Yet, its success has produced a huge case overload and growing reluctance by States Parties to abide by the ECtHR judgments. Accordingly, the ECHR monitoring system is in urgent need for reform in order to maintain its effectiveness as well as its credibility in the long run.

The much less elaborate ESC/ESC (rev) system with State reports and an imperfect and little accepted collective complaint procedure to a court-like body of independent experts is in no less urgent need of reform, but for the exact opposite reason – to make it more effective. An approximation of these two treaty monitoring systems would also give credence to the oft-proclaimed indivisibility of first- and second-generation human rights. … To the extent of overlap of the substantive guarantees of another human rights treaty with the Convention, Art. 34 ECHR enables the indirect enforcement of obligations deriving from that other treaty. The ECHR’s effectiveness is not solely based on the binding judgments of the ECtHR but also on the direct effect which the Convention rights are given by the national courts. Making the guarantees in other human rights treaties directly enforceable in the national court systems as far as possible would considerably increase their effectiveness and transform the national courts into informal treaty monitors which assist and relieve the international monitoring bodies, in accordance with the principle of subsidiarity. … Moreover, the EU‘s potential as protector of international human rights converted into EU law should also be systematically exploited, transforming national courts and the CJEU into indirect monitors with the help of supranational EU law provisions mirroring the international standards. On the other hand, the EU‘s potential as violator of international human rights should be decreased by its accession to the CoE’s human rights treaties, most notably the ECHR, and submission to external monitoring (like all Member States). This would enhance both the Union’s own and the CoE’s credibility in human rights matters in Europe and the wider world.”