Title: Inherent hinders in International Law – a case study of obstacles for coherent human rights protection in Europe
Abstract: This thesis deals with the inherent hinders in international law, which are obstacles to a coherent human rights protection in Europe. By looking at cases from the European Court of Justice and the European Court of Human Rights respectively, the inherent hinders are presented through the differences in attitudes demonstrated in case-law from the two courts and discussed in light of the potential effects for human rights protection in Europe.
The ECJ had previously clearly, and firmly, established that EU-law (EC-law until 1 January 2010) is an autonomous legal system: separate from, and superior to, the domestic legal systems of the member states. In 2008, in Kadi, the ECJ took another decisive step in establishing its legal independence by distinguishing EU-law from International Law created by the UN Security Council when human rights were at issue.
Quite on the contrary, in a series of cases, the European Court of Human Rights has accepted and confirmed its position as an international organ, part of the system of International Law, or the International Legal Order, with the UNSC as the supreme lawmaker.
This thesis highlights and discusses the key legal aspects underlying the two courts’ reasoning; Article 103 of the UN Charter and the human rights limitations of the UNSC as well as the notion of sovereignty in international law. Further, it discusses potential consequences of these attitudes and presents an argument to overcome part of the problem. The author argues that the principle of lex specialis could be used as an interpretive means to allow for human rights to trump the mandating character of Article 103 of the UN Charter.
Publication Year: 2011
Publication Date: 2011-01-01
Language: en
Type: article
Access and Citation
AI Researcher Chatbot
Get quick answers to your questions about the article from our AI researcher chatbot