International and European Law PDF

International law part one: international law =========================== intro ----- A state cannot invade another state. Circle: international law with continental law (human rights law) International law is about **states!!!** (not people) can't take this away. the nature and development of...

International law part one: international law =========================== intro ----- A state cannot invade another state. Circle: international law with continental law (human rights law) International law is about **states!!!** (not people) can't take this away. the nature and development of international law ----------------------------------------------- ### intro What is the objective of law? to create **order** - An imagined order: state has created the fiction (ex: red stoplight) - Away with the rules house of cards falls. Horizontal relationship between independent states state creates international law Private intern law (ex: car accident in France but with victims of Spain) = national law Public intern law (!!!!) = international law - Law of the sea, moon, war, international organisations, human rights. - Relations between **SOVEREIGN** states = state can decide how it is going to organize itself states create rules - Sovereignty = states are equal ### States **DOCUMENT 1 (Montevideo convention) (art 18 UN Charter)** Art 1: creation of states - Permanent population - Territory - Government - Capacity to enter relations with other states. Question exam: Ceci n'est pas un divorce 'why surging separatism won't break Belgium'. - Belgium is a state. - Could a separated Belgium be a state? Yes, but they need independence, so they must be recognized. ### Enforcement International law is shaped by political and social factors, leading to skepticism about its effectiveness. Many believe power, not law, governs international relations. A key criticism is its lack of enforceability, raising doubts about its legitimacy as \"true law.\" While international law seeks to maintain peace like domestic law, its existence depends on states' recognition and acceptance. The absence of an international governing body doesn\'t negate its impact; states often comply with international law, even against their interests. This compliance is based on the principle of voluntarism, where states willingly adhere to international norms. ### A league of nations **Post-Cold War Era** the end of the Cold War in 1990 marked a rise in the United Nations\' influence. **Impact of World War I** the 1919 Peace Treaty established the League of Nations to promote peace. **Weakness of the League** struggled due to the absence of the U.S. and Soviet Union, remaining primarily a European organization despite some achievements. **Creation of the UN** in 1946, the UN was established to address the League\'s shortcomings and to function as a global organization based in New York. United nations -------------- ### Introduction Charter of the UN = constitution of UN - Purposes of UN: art 1 - Functions of UN: art 2 - [Par 7]: sovereignty = Belgian matters are Belgian matters - Domestic jurisdiction provision - Principals that must be followed by UN and member states. UN is also a fiction in order to work and operate it needs institutions. ### Principal organs: art 7 1. **Security Council** [Obligation to Act:] - The Security Council is required to take measures to *maintain international peace and security*, as outlined in art 23 and 27 of the UN Charter. [Two Main Powers:] - Peaceful Settlement Council can recommend peaceful resolutions, as illustrated in art 36; however, such recommendations are not legally binding. - Enforcement Measures art 41 and 42 empower the Council to adopt binding decisions that dictate actions required from member states. [Veto Power:] - Any action proposed by the Security Council can be vetoed by a negative vote from any one of the five permanent members (France, the UK, China, Russia, and the US). - Exception: art 27 provides an exception for procedural decisions, which do not require unanimous approval from all members. [Membership: ] - The Security Council consists of 15 members, including five permanent members (reflecting the dynamics of power politics) and ten non-permanent members. 2. **General assembly** [Role: ] - The General Assembly serves as the \"parliament\" of the United Nations, providing a platform for discussing international issues and engaging in debate. [Membership: ] - All member states of the UN participate in the General Assembly, as specified in art 9 and 4. [Voting System: ] - Each member state has one vote, as outlined in art 18. [Nature of Decisions: ] - The General Assembly does not have permanent members and cannot impose binding decisions on its members. Instead, it issues recommendations. [Binding Resolutions: ] - Resolutions can be binding only if they reflect *customary international law*. 3. **ECOSOC** - Recommendations (not binding), important for human rights 4. **UN Secretariat** - Art 97-99 International court of justice (1946) ------------------------------------- ### Organization of the court [Establishment: ] - The International Court of Justice (ICJ), established in 1946, is the successor to the Permanent Court of International Justice. [Location: ] - The Court is located in The Hague, Netherlands. [UN affiliation: ] - As the principal judicial body of the UN, the ICJ operates under art 92 UN Charter. [Judicial independence:] - The ICJ comprises independent judges, as stipulated in art 2 and 3 of its statute. [Functions: ] - Art 13 and 19 outline the Court\'s responsibilities and functions within the UN framework. ### Jurisdiction ICJ [Access to the ICJ:] - Art 35 of the ICJ Statute outlines restrictions on which entities can bring cases to the Court. - Art 93 of the UN Charter specifies which states have the right to access the ICJ. [Types of Rulings:] - Advisory Opinions: - Governed by art 65 of the ICJ Statute and art 96 of the UN Charter, these opinions provide legal guidance but are not binding. They cannot create law or set legal precedents. - Binding Decisions: - The Court's binding decisions are obligatory for the parties involved in the case, but they do not establish precedent for future cases. [Role of the Court:] - While the ICJ interprets and applies international law, it does not have the authority to create new laws. - *Cameroon v UK case* Serbia and Montenegro v. United Kingdom case 2004, §3, - Case brought by the Federal Republic of Yugoslavia against NATO countries following the Kosovo-conflict. *Libya v Malta Continental Shelf case 1984*, §40: - Duty to give the fullest decision The 1945 ICJ Statute requires that a matter brought before the Court should be a legal dispute - *Congo v Rwanda case 2006*, §90: definition legal dispute The usual form of compromissory clause provides that any dispute relating to the interpretation or application of the treaty in question may be referred to the Court unilaterally by any party to the treaty. Art 36, §2 ICJ Statute = optional clause court will only have jurisdiction to the extent that both the declarations of the two parties in dispute cover the same issue. - *Norwegian Loans case 1957, §36* ### Applying international law [Role of the Court:] - The International Court of Justice applies international law to resolve disputes. [Sources of International Law: ] - According to its 1945 Statute, the Court uses international conventions, customary international law, general principles recognized by nations, judicial decisions, and teachings from leading legal scholars as sources of law. ### Remedies Declaratory Judgment: - An applicant state typically seeks a declaration that the respondent state has violated international law. Reparations: - The applicant may also request compensation for any losses incurred due to the breach. ### Enforcement The Court's decisions are final and cannot be appealed: art 59 and 60 ICJ Statute Judgments are binding only between the involved parties for that specific case, yet they can shape international law. The Court relies on UN members to comply with its rulings - If a party does not comply, the other party can seek action from the Security Council to enforce the judgment. - *Nuclear Tests 1974*, §63 - Recourse to the Security Council: art 94 UN Charter Sources of international law ---------------------------- ### Introduction: the problem of discovering international law There is no single body or court that creates universally binding international laws, complicating the process of discovering these laws. Despite this challenge, international law exists, and its rules can be identified through various sources. ICJ Statute: art 38 ### International conventions or treaties States transact a vast amount of work by using international conventions/treaties. #### Law of treaties Basic framework = 1969 Vienna Convention Definition treaty = art 2, a) and 31 Vienna Convention - Art 3 Vienna Convention: international agreements not within the scope of the present Convention A treaty can be oral!!!! Treaties are binding upon the parties to them and must be performed in good faith pacta sunt servanda. The making of treaties: - The principal power to bind your nation state to a treaty on international level must be found on national level (mostly in the constitution) = full power. - In Belgium: art 167 Gw. - Full powers: art 2, c) and art 7 Vienna Convention - International conferences or [consent]: (art 9 & 11 - 15 Vienna Convention) - By signature - By exchange of instruments - By ratification - By accession Once a treaty has been drafted and agreed by authorizes representatives adoption: art 9 - Cases other than international conferences: by consent of all the states involved un drawing up the text of agreement. Consent is a vital element of international law, as states are sovereign and can, in principle, only be bound by their own consent. - Without consent, their provisions are not binding. - Art 11-16 - Art 306 of the 1982 Convention on the Law of the Sea State that is not happy with a treaty can make a reservation (art 2) - Underlines the principal of sovereignty. Art 2 and19 Vienna Convention: formulation of reservation - Reservation = a state agrees with the treaty but not with a specific article. - Unilateral statement - Sovereignty of states Treaty enters in force when consent is established. - Provision or agreement - Consent (art 34 Vienna Convention) - A treaty does not create either obligations or rights for a third State without the consent of that state After entry into force: transmitted to the Secretariat of the UN for publication (art 102 UN Charter & art 80 Vienna Convention) Can you terminate a treaty? yes, but not always (not with human rights) 1. Treaty provision or consent - Art 54-57 Vienna Convention - Example: International Covenant on Civil and Political Rights (1966) - See 1997 General Comment No. 26 paragraph 1 & 3 (UN Human Rights Committee) - Art 59-60 Vienna Convention - Purposes and objects fulfilled - Limited in time - Another agreement - Material breach 2. Fundamental change of circumstances - Art 62 Vienna Convention - **Rebus sic stantibus** - If there is become fundamental change of circumstances since the conclusion of the treaty, a party has the right to withdraw from the treaty - *Fisheries Jurisdiction 1973 (UK v Iceland),* §36 - UK had opened a proceeding against Iceland because Iceland had expanded their fishing jurisdiction from 12 nautical miles to 50 nautical miles. This is a change of circumstances. The court stated that the annual catch in the disputed area was limited to maximums. The Court later ruled that this expansion was not permitted and that the parties should seek a negotiated solution between themselves. - Art 62 Vienna Convention Consequences of the termination: art 70 and 72 Vienna Convention Dispute settlement: always find a solution in a peaceful way - Starting point: art 66 Vienna Convention - Then: art 65 Vienna Convention - Last: art 33 UN Charter - No solution within 12 months: further procedures Art 33: interpretation of treaties #### Treaties as source of international law Pacta sunt servanda = states bind themselves by the use of treaties **Law making treaties** - Effect generally to be law - Binding rules for a large number of people - Example: Paris agreement on climate change *North Sea Continental Shelf case*, §26 - If you do not sign or ratify then you are not bound by the treaty - If you sign but not ratify - Germany wanted greater delimitation of the coastline so they would get a fairer share of the resource-rich shelf. - The Netherlands and Denmark did not want that and invoked a treaty that Germany had not ratified. - West Germany did not ratify: no ratification, you are not considered a party **Constitutive treaties** creates an international organisation - Example: UN Charter **Treaties that establish a regime** extends also to non-parties - Example: art 2, §6 UN Charter - Exception to principal that treaties bind parties and touches national sovereignty. ### Custom Treaties can reflect custom automatically binding for everyone. Rules of behavior emerge and prescribe what is permitted and what is not mostly not written down or codified. Custom = dynamic source of international law - Oldest source international law Two elements: 1. **Material (state practice)** = actual behavior of states - Legislation, judgement court, treaty... - Must be consistent, uniform. - Practice must be common to a significant number of states. 2. **Psychological (opinion juris)** = believe that what states do is law, that its mandatory (opinio juris) - Factor which turns the usage into a custom and makes it part of international law. - *Libya vs Malta case*, §27 Codex Hammurabi ### General principles No law? general principle of law (are always there) 1. [Reparation:] - Every violation of an agreement involves an obligation to make reparation - *Chorzow Factory Case 1928*, §66 2. [Res judicata:] decisions of ICJ (final, binding and without appeal) - *United nations administrative tribunal (1954)* 3. [Good faith:] most important!!! - Got written down in art 2 charter UN - *Nuclear Tests 1974*, §46 ### Subsidiary means 1. **Judicial decisions (art 38 Statute ICJ)** - Binding between parties: art 59 Statute ICJ - A measure of certainty - *Cameroon vs Nigeria case 1998*, §28 - How did we rule before and we try to follow that path (that is the rule), only if there is cause then we leave that path. - *Croatia vs Serbia case 2008,* §53 2. **Legal doctrine (book) (art 38 Statute ICJ)** - Not binding - Important to study the law. - Arranging and putting into focus international law ### Hierarchy art 38 of statute ICJ) No hierarchy when they both provide the same rule. - Lex posteriors derogate priori. - Where the same rule appears in both a treaty and custom, the two may coexist. - Lex specialis derogate legi generali (art - Jus cogens: always has priority (art 53 and 64 Vienna Convention) - Vb: prohibition of genocide, prohibition of slave trading, piracy - *Belgium v Senegal case 2012*, §99 - Prohibition of torture = jus cogens Judicial decisions and writing have a subordinate function because of their description as subsidiary means for the determination of law. International law and national law ---------------------------------- 1. **Dualism** - Example: UK 2. **Monism** - Example: Belgium Subjects of international law ----------------------------- ### States (art 1 Montevideo convention) **Sovereignty** - You can't enter every territory of the state. - Concept of the state is based on the concept sovereignty **Territory** - Territorial sovereignty - The notion of title - Territory over which there is no sovereign - Terria nullis - Territory unclaimed by any state and therefore subject to lawful appropriation, through occupation, by any state. - Res communis: not capable of being reduced to sovereign control - Example: high seas, outer space (art 1, 2, 3, 4, 6 and 7 treaty) - Common heritage of mankind - 1970: seabed and ocean floor and its resources = common heritage - 1982: No sovereign or other rights shall be recognized - Art 136 and 137 Convention on the law of the sea - Exploitation of the common heritage is possible in accordance with the convention. - Art 11 Moon Treaty ### Right of all peoples to self-determination Purposes UN = develop friendly relations among nations based on respect for the principle of equal rights and self-determination. Respect the principle of self-determination of peoples\ art 1, 1 International Covenant on Civil and Political Rights/Economic, Social and Cultural Rights (= common article) Principle of self-determination = legal principle\ = right of all peoples it means that everyone (individuals) would be a subject of IL but it's about a political-sociological people = colonial/historical principle/right Legislation = 1966 International Covenant on Civil and Political Rights - Art 1 - The right is limited to colonial territorial boundaries. - Efforts to expand it beyond these boundaries have failed. - The UN opposes any actions that disrupt national unity or territorial integrity. ### Individuals Two fields: 1. **Human rights law** [Classified in three generations] - Civil and political rights individual rights - State abstention = negative obligation for states = states don't do anything or intervene - Economic, social, and cultural rights individual rights - Positive obligation = active state intervention - Ex: Safetynet - Collective and solidarity rights - Positive obligation - Ex: Paris agreement Protect them as much as possible. Generations are not succeeding each other. - One generation cannot exist without the other one. - Ex: freedom of speech provides all of us to think, speak and write whatever we want if you restrict freedom of speech often it makes the road for further violation - Instrumental conception of freedom of speech to protect human rights. [Historical development of international protection of human rights] - Before 1945: national character - After 1945: international system - What did we need to get international protection? World war II - 1945: establishment UN - 1946: dissolution of League of Nations and commission - Art 68 UN Charter: ECOSOC created a human right commission. - Roosevelt: universal [declaration] of human rights not a binding treaty - 1948: declaration of human rights - 1466: - International Covenant on Civil and Political Rights - International Covenant on Economic, Social and Cultural Rights **\ ** 2. **Criminal responsibility** [International criminal court and tribunals ] - Nuremberg tribunal first international criminal tribunal (1945) - Starting point of international criminal law - Over the years: Nuremberg, ICTY, ICTR no longer active - ICTY = International Criminal Tribunal for the Former Yugoslavia - Power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Yugoslavia. - ICTR = International Criminal Tribunal for Rwanda - 1994 Security Council resolution [International criminal court (ICC)] - The remaining international criminal court - The Hague - Own Rome Statue: art 34, 36 and 40 - Jurisdiction = limited to the most serious crimes in the world (art 5 Statue) - Concept of complementarily - Limited crimes (art 5 and 25 Rome Statue ICC) (art 6-8) - *Is the prevention of child births considered genocide? YES, d)* - Regard to the states who have signed the statue of the court. - Jurisdiction of the court is NOT universal but TERRITORIAL AND PERSONAL - A national of a non-member state can be punished if they commit a crime in the territory of a member state. - You can't escape the jurisdiction of the ICC. ### International organizations In globalized world you need international organizations solve international problems, economic implementations... Regionalism is developed constitutional. **Historical development** - From periodic conferences (until the outbreak of WW1) to international organizations. Universal and regional organizations: - Universal: ex = UN - Regional: ex = EU Difference between Europe (continent) & European Union (created after Europe) (organization) (Raad van Europa is geen deel van de EU, Europese raad wel!!)) Constituent instruments - International organizations are established by states through constituent instruments. - Instruments = multilateral treaties governed by international law. - May designate bodies for interpretation and provide mechanisms for dispute resolution. Organization has an organ like the European Court of Justice, it has the power of interpretation of law that comes out of that organization. This power is given by that treaty/convention. Important organizations: 1. [NATO (North Atlantic Treaty Organization) (1949)] - Established to counter potential threats from the Soviet Union. - An attack on one member is considered an attack on all. - Objective: art 5 The North Atlantic Treaty principle was first invoked after the 9/11 terrorist attacks in 2001 2. [OAS (Organization of American States)] - Emerged after WWII as a collective security system, where an attack on one is deemed an attack on all. 3. [OAU (Organization of African Unity) (1963)] - Replaced by the African Union in 2001. - Objectives: art 3 Constitutive Act of the African Union 2001 4. [Council of Europe (1949)] - Main function = preparing and concluding conventions and protocols - European Convention on Human Rights - No part of the EU - Committee of Ministers oversees internal matters and recommends policies to member states (art 15 & 16 Statue of the Council of Europe 1949) International protection of human rights ---------------------------------------- ### Introduction See 'individuals'. ### The UN system UN system = universal protection of the human rights - Art 1 UN Charter includes the promotion and the encouragement of the human rights - Art 13 UN Charter: the General Assembly deals with these human rights via studies and recommendations - Art 55-56 UN Charter: universal respect for human rights and observance, the goal is initial peace - Art 2, 7 UN Charter: domestic jurisdiction provision - Protection of HR does not only rest with the nation states, it goes beyond it so national and international Art 7: institutional structure of the UN Cornerstone of UN activity, but it is a declaration, so it is not binding. This is legally not enforceable. ECOSOC (art 62 & 68 UN Charter) - Commission on human rights (1946) - Human Rights Council (2006) The Universal Bill of Human Rights 1. **Protection of human rights by the UN** - [UN General Assembly] discusses global issues, makes recommendations, and promotes international cooperation in politics, law, economics, culture, education, health, and human rights. It can create subsidiary bodies and is key to human rights development, including the Universal Declaration of Human Rights. - [The Economic and Social Council] drafts conventions, sets up commissions on economic, social, and human rights issues, and supports its functions. The Security Council addresses human rights through peacekeeping, especially post-Cold War. - [ICC] plays a limited role in human rights since individuals can\'t directly access it but helps interpret treaties. - [UN Secretary-General] highlights human rights on the global agenda - [Human Rights Council and High Commissioner for Human] Rights are central to UN human rights efforts. 2. **Protection of civil and political rights** - The 1966 ICCPR addresses first-generation human rights - Human Rights Committee: - Composed of 18 experts from member states. - Monitors compliance with the Covenant. - Member states must submit reports on their implementation and progress. - States can file complaints against each other only if both agree. - Other international dispute mechanisms are allowed. - Optional protocol - Allows individuals to file complaints with the Committee. - Applies only if the individual's country is a party to the Protocol. **\ ** 3. **Protection of economic, social, and cultural rights** - The 1966 Covenant addresses second-generation human rights. - Committee on Economic, Social and Cultural Rights (CESCR): - Consists of 18 independent experts. - Monitors implementation of the Covenant by member states. ### Regional protection #### Europe (continent) A. **Council of Europe (1949)** Founded in 1949 to promote ingovernmental and interparliamentary cooperation. - Reaction to WOII human rights violations. Human Rights Focus: - Responsible for European human rights protection. - Adopted 1950 European Convention on Human Rights to address civil & political rights European countries are like-minded and have a common heritage of political traditions, ideals, freedom, and the rule of law. European Convention on Human Rights (1950) first generation human rights: - Right to life (art 2) - Fair trial (art 6) - Freedom of expression (art 10) Protocols: added rights = property protection, education, and free elections**\ ** B. **Characteristics of the european protection** 1. [Obligation to respect human rights (art 1 Convention on Human Rights)] - Contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in the Convention. 2. [A court for human rights] - To ensure the obligation, we established a court European Court of Human Rights - Art 33: inter-state cases (never happens because of politics) - Art 34: individual applications - Art 35: court may only deal with cases if all the national remedies have been exhausted *Tyrer v UK case 1978*, §31 - Facts: - Mr Tyrer, then aged 15, was given three strokes of the birch in 1972 in the Isle of Man, according to the local juvenile court\'s sentence for unlawful assault occasioning actual bodily harm. - Birching was conducted by policemen in private, in the presence of Tyrer\'s father and a doctor; Tyrer was made to take down his trousers and underpants and bend over a table. - The Convention has been drafted in 1950, today we are in 2023, you must read the Convention in the light of the present-day conditions. Duty of a contracting state when it's exercise effective control of an area outside its national territory to fulfill its obligation of the Convention ([extraterritorial convention]): *Cyprus v Turkey case 2001*, §77 - Case about control: if you are a state that has signed the European convention and if you exercise effective control over a territory beyond your national territory you still have the responsibility to protect human rights wherever you go, you have to bring the convention with you - *Jaloud v. The Netherlands case*, §143 - Facts: - Dutch troops were deployed in southeast Iraq from July 2003 to March 2005 under British command. In april 2004, while assisting Iraq troops at a vehicle checkpoint, Dutch soldiers, including a lieutenant, opened fire on a speeding vehicle, resulting in the death of passenger Azhar Sabah Jaloud. - In 2008, Jaloud's father filed a complaint with the ECHR, alleging that the Dutch authorities had failed to conduct an adequate investigation. - NL said that they couldn't be hold responsible because the troupes were under the supervision of another member state (UK) court disagreed: you signed, you were there so you must protect HR. [\ ] 3. [Scope of the European protection] - **Enforcement on a national level** - Rights under the European Convention can be enforced by individuals in national courts. - Convention primarily applies to the vertical relationship between state and the individual. - You can bring a state before the European court, but not another individual (strange because individuals can also violate HR) Belgium has a duty to protect each other's HR - Individuals or companies can\'t be sued in the ECHR for violating others\' rights. Only states can be brought before the Court. - Implementation: - States can implement the Convention directly or transpose it into national law. - National courts are responsible for ruling on human rights violations. - ECHR only intervenes after all domestic legal options have been exhausted. - **Interpretation of the protected rights** - ECHR expanded the rights in the 1950 European Convention by interpreting them as a \"living instrument,\" adapting them to modern conditions. - *Tyrer v UK case 1978*, §31 - **Margin of appreciation** - Common standards but allows member states flexibility in interpretation due to differing national legal systems. - Case of Handyside 1976, §48-49 and 57 - Little red schoolbook with passages of alcohol, sex.... - Textbook was published in Belgium, Denmark... and wanted it to publish in UK but UK prevented him he went to the European Court for a breach of art 10 - Court stated: §49: right is very wide - §48: court said that art 10 leaves the UK with a marge of appreciation UK can look in to the right and limit it. - §57: court said that it is for the protection of moral values that the UK has restricted your freedom of expression - The margin of appreciation will be narrower depending on the importance of a specific human right. - **Limitations** - Only the right to life and prohibition of torture are absolute, with no limitations. - Limitations on other rights: - Restrictions can be applied to other rights under certain conditions. - Art 10, §2: criteria - Legal ground - Legitimate purpose (social/moral values) - Necessary in democratic society (proportionality) - National constitutions can create rules regarding restrictions (vb: art 19 en 25 Gw) - Art 5: - Doesn't contain limitations as in art 10 but contains certain circumstances no marge of appreciation. Rule about prohibition about human rights: art 17 - About combative democracy: democracy defending itself - If you are a group of people who want to install dictatorship, then art 17 will apply because it goes against democracy - Protects us against denying the holocaust - If art 17 would not exist and someone denies the holocaust first look at art 10: §1 yes, §2 yes - Art 17 only use in specific situations - If it is misused, it can lead to violations of HR #### EU (European Union) A. **Recognition of human rights** The Union is founded on values like dignity, freedom, democracy, equality, and human rights, promoting pluralism, non-discrimination, tolerance, justice... The EU Charter of Fundamental Rights has the same legal status as the treaties but does not give the Union more powers. - Its rights are interpreted based on its rules and explanations. Accession to the European Convention - The Union will join the European Convention on Human Rights without changing its powers as defined in the treaties. - Fundamental rights from the Convention and member states\' constitutional traditions are core principles of Union law. B. **Influence of case law of the court of justice of the EU** Internationale Handelsgesellschaft case 1970, §4 - Court stated that HR are important and that it would look to national constitutional traditions as inspiration for the content of EU fundamental rights law. - From 1970 the Court also began to look at international human right treaties (ex: European convention of human rights) - *Hauer v Land Rheinland-Pflatz case 1979*, §15 - Mrs. Hauer in turn applied for permission to plant new vines on her own land. - The Land Rheinland-Pfalz denied this permission on 2 January 1976 on the grounds that her land was unsuitable for wine growing. C. **Accession to the European convention** Art 2 TEU (cross reference art 6, §1-2: elaborates on art 2) - 'Shall': hasn't happened yet D. **Rights protected by the court** Court of Justice only protects HR if they are presented before the court: - Creating judgements about EU law (regulations, directives) - Can rule of violations of HR if the case contains violation of HR Examples of cases: 1. Omega Spielman: about free movement and protection moral values. 2. Defrenne case: about directive and treaty law and non-discrimination (HR) 3. Bosman case: free movement and freedom of assembly (HR) E. **Scope of protection** Art 21 Charter EU: non-discrimination - Fundamental rights within the union are about the institutions of the union and the member states when they implement EU law. *Egenberger case 2018*, §76 - The court said that HR also apply to individuals you can use HR against private parties because it is a general principle of law. - Protection goes further than institutions and member states. There are limitations on how fundamental rights are to be interpreted. *Melloni case 2013*, § - An Italian man was charged with fraud, skipped bail, and was sentenced in absentia to 10 years in prison in Italy. - He was later found in Spain but opposed extradition, claiming his right to a fair trial was violated due to the in-absentia conviction. - Spanish Constitutional Court reviewed the case, highlighting the Spanish Constitution's protection of the right to a fair trial. - Question: Where do we put the Spanish constitution next to European law? - EU court of Justice: §57,58 - A constitution court must sit aside constitutional law when it goes against union law because of primacy #### Other regional protection The Inter-American Convention on Human Rights (OAS) The Banjul Charter on Human and Peoples' Rights (OAU) Dispute settlement ------------------ ### Methods of dispute settlement 1. Diplomatic methods - Negotiation, mediation, inquiry, and conciliation 2. Arbitration 3. ICJ #### Diplomatic methods A. **Negotiation** Objective = finding an understanding Negotiation does not involve a third party acting as a mediator. Only between the contesting parties. Discussions between interested parties with a view to reconciling - Mutual goodwill, flexibility, sensitivity Obligation? Sometimes, and this duty means that states are obligated to negotiate, but they are sovereign so how is it an obligation? - A treaty is needed, UN Charter just explains the methods but there are treaties that do, ex. art 283, 1 Convention on the Law of the Sea Where there is an obligation to negotiate, this would imply that there is also an obligation to pursue these negotiations as far as possible: *North Sea Continental Shelf case* page 47, (a) B. **Mediation** Mediation involves the use of a third party: this can be an individual, a state, a group of states, an organization. The mediator aims to settle the dispute. C. **Inquiry** The observers try to know the facts (fact-finding) of the dispute, what is led to the dispute = inquiry - To reach legal conclusions observers are trying to tell the parties who is right and who is wrong but nothing more. D. **Conciliation** Involves a third-party investigation based on the dispute but this third party will issue a report, and this entails suggestions for a settlement. These reports are not binding. #### arbitration *Qatar v Bahrain case*, §113: definition of arbitration - Facts: - The case between Qatar and Bahrain involved a longstanding territorial sovereignty and maritime boundary dispute between the two gulf neighbors. - The two sides sought to mediate the dispute under the good offices of the Kingdom of Saudi Arabia beginning in 1976. - After those mediation efforts failed, Qatar instituted proceedings before the ICJ in 1991, submitting to the court the whole of the dispute and asking it to "draw a single maritime boundary between their respective areas of seabed, subsoil and superjacent waters." Rise in number of arbitration cases - Because this is extremely useful when you need flexibility and speed. - The states sometimes need flexibility and choose arbitration so they can choose their own judges and you can set your own timetable. - It is also possible to have this arbitration behind closed doors (confidential). ### Refrain form the threat or use of Force #### Essential foundations of international relations United Nations primary objective = peace (art 1 UN Charter) (art 24 UN Charter) UN Security Council: primary responsibility to give effect to art 1 UN Charter (art 33 UN Charter) - Chapter VI role of the UN Security Council differs from its role in Chapter VII UN Charter - Chapter VI: no binding decisions by the Council (art 33, 2 UN Charter) Art 33, 2 UN Charter, the Council shall call upon the parties to settle their dispute by peaceful means. Fail to settle by the methods in art 33 UN Charter, they should refer the matter to the Security Council: art 37 UN Charter. Art 39 UN (Chapter VII): Once the council has determined that there is an existence of a threat to or a breach of the peace or act of aggression then the Council can make binding decision in accordance with art 41-42 UN Charter. Art 2, 4 UN Charter: if you want peace, you don't fight (no use of force or threat each other). - No state has the right to intervene, directly/indirectly, for any reason whatsoever, in the internal/external affairs of any other state (basic principle of sovereignty) - *Corfu Channel case 1949*: - There was a British claim because we are mine sweeping the entire channel and they said they had the right of intervention, but they go across borders, planning operations in others territory breaching art 2, 4. UN Charter - Didn't agree because they were just intervening in the interest of international community Exceptions art 2, 4 UN Charter in relation with 2 things: - Exceptions in the light of the collective measures taken by the UN - Self-defense #### The collective security system CHAPTER VII Art 39 UN Charter: Security Council determine the existence of any threat to the peace, breach of the peace, or act of aggression, is there an existence then they decide on the measures The Council examines if circumstances constitute a threat two elements: - Facts - Security Council: decide whether there is a threat to the peace The five permanent members, who have veto power, must all agree to take action. If one member (usually Russia) vetoes, further action is blocked. - When they do act, we get resolutions: - Resolution 217: it examined the circumstances and the situation of a minority regime in Rodasia was a threat to the peace - Resolution 955: the genocide in Rwanda was a threat to the peace Breach: recognition of international terrorism = threat to the peace Example: International health crisis: Covid-19: Resolution 2532 (2020) = threat to peace bc it creates chaos if it's not maintained Aggression: art 1 Resolution 3314 - Examples: art 3 Resolution 3314 [\ ] [Measures not involving the use of force (= most effective one)] - Art 41 UN Charter - Resolution 217, 1, 8 by UN Security Council - Usually, it's about economic sanctions. - Ex: disrupting diplomatic relations - Peaceful settlement of dispute: establish tribunals [Measures involving the use of force ] - Art 42 UN Charter: air, sea, or land forces = the army - Ex: UN reaction to the North Korean invasion on the south UN Security Council declared that there was a breach of the peace, and they must assist the South to withdraw the North #### Right to self-defence What is self-defense? *Caroline case 1837* - Facts: - Caroline is a ship (a steamer) from 1837 (Niagara Falls), British forces entered US territory and they wanted to destroy the Caroline because it was a ship being used to move weapons to supply rebel groups in Canada (were rebelling/revolting against the British) - The British forces set fire to the Caroline and led to a diplomatic fall-out (USA vs UK) - British authorities corresponded with the USA, and it was the US secretary who said: respect for the territory of states is essential and sometimes self-defense can be necessary but only in cases where the necessity is *[instant, overwhelming, and leaving no choice of means and no moment for deliberation] =* an attack must be **immanent** Since then, there is the art 51 UN Charter (cross reference art 24 UN Charter) - Conditional - Only invoke it if you are a victim of an armed attack *Iran v US case*, §64: - An attack on a ship that is owned by a state but not flagged by that state, will not be considered an attack on that state. - Us argued that it was an armed attack against the US court did not agree bc law of the sea (important that the ship is flagged) in this case there was no flag so attack on the ship was not the same as an attack on the state (not evoke art 51 UN Charter) Terrorist attacks: can international terrorism be considered an armed attack? Yes because threat international peace so it can lead to a right of self-defense (even if the aggressor is a non-member state) - After 9/11 the Security Council adopted the [Resolution 1368]: you can use self-defense - [Resolution 1373:] states take necessary steps to prevent terrorism -- so it can be considered an armed attack and trigger the right of self-defense even though it is an attack by individual terrorists - Cross reference art 39 UN Charter (chapter VII): binding decisions Letter from the Permanent Representative of the USA: notified the Security Council that it was using his right to self-defense (because the legal base), we are going to act against Al-Qaida and Taliban Art 5 The North Atlantic Treaty: refers to an armed attack and art 51 UN Charter Resolution 2249 by the Security Council: terrorism is a threat to the peace -- §5: actions to prevent terrorist acts Concepts of [necessity and proportionality] = heart of self-defense (facts of case are important!!) - Examples of where the necessity and proportionality are not followed - *Iran v US case 2003*, §76 - Oil platform case: response on an incident was to attack the oil platform and it was not necessary or proportional - *Congo v Uganda case*, §147 Right to anticipatory self-defense? (possible attack) - Yes, in principle, however it requires fine calculations and timing, you must be certain that an attack is coming because if the state that is probably under attack is acting to quickly, that state would be the aggressor attacking another state and then the state that was going to be the aggressor has a right of self-defense. #### UN peacekeeping activities There is no explicit legal basis for the blue helmets. But: art 29 UN Charter: the functions are to be found in art 34, 37, 38 and 39 UN Charter Art 34, 37 and 38 fall under Chapter VI of the Charter because in principle they are not going to fight Art 39 UN Charter fall under Chapter VII of the Charter (+ art 42 UN Charter: it has been said that art 42 UN Charter cannot be the legal basis because art is about fighting) Therefore, is the legal basis Chapter VI and a half for the blue helmets. Consent of that state and soldiers must have sufficient resources (vehicles, weapons, food, communications...) Capita selecta: diplomatic law ============================== Introduction ------------ Winston Churchill: "*Diplomacy is the art of telling people to go to hell in such a way that they ask for directions"* Diplomacy = oldest instrument that we have states need diplomats. Immunities from jurisdiction ---------------------------- International tribunals - Art 27, §1 Rome Statute ICC: applies equally to all persons without any distinction based on official capacity. Domestic courts - Immunity before national courts is more complex. - *Congo v. Belgium case 2002*, §51 - Court said that there is something as immunity for jurisdiction in other states Why do these individuals have immunity? Because they represent their country or government, and the state is sovereign. Those who represent the state are granted immunity as part of that sovereignty. ### Functional necessity The 1961 Vienna Convention on Diplomatic Relations emphasizes the need for diplomatic privileges and immunities for effective international relations. It acknowledges the historical recognition of diplomatic agents and aligns with the UN Charter's goals of sovereign equality, peace, and friendly relations. The convention aims to foster relations between nations, regardless of different systems, and ensures that diplomatic privileges serve the functioning of diplomatic missions, not individual benefits. Customary international law governs areas not explicitly addressed by the convention. Art 41, §1 Vienna Convention on Diplomatic Relations ### Mutual consent Diplomatic relations exist by mutual consent, not as a legal right. ### Main functions of the diplomatic mission Art 3 Vienna Convention on Diplomatic Relations ### Premises of the diplomatic mission Ambassy: diplomatic premises - Art 22 Vienna convention: premises of diplomatic mission - Inviolable = you can't just enter the premises because they are territory of the state - Rule = absolute *US vs Iran case 1980*: §61 - Facts: - In 1979 the ambassy of the US in Iran was taken over by protesters (violent) = infringement of art 22 - They entered the premises, took all the documents, and helped hostage the diplomatic staff - Consulate = represents the state in an administrative way (visas/passports) - Vienna Convention on Consular Relations 1963 - ICC stated: Iran received USA, so they have an obligation to protect the diplomatic premises of the USA. ### Diplomatic bag Diplomatic bag = what we use for carrying diplomatic documents - Art 27, §3 Vienna Convention: detained = taken away - Art 27, §4 Vienna Convention - Flexible: must obtain diplomatic documents and have visible external marks, regardless of appearance. **Security checks** - *Dikko case 1984*: - A former Nigerian minister was kidnapped in London and places in a crate to be flown to Nigeria. - The crate, accompanied by a person claiming diplomatic status, was opened at Stansted Airport. - It lacked an official seal, meaning it wasn't a diplomatic bag. - UK issued a statement: we still are going to open diplomatic bags when there is a suspicion of human signs to protect a human right (exception art 27, §3) - Problem = only UK said this, no comment ground on every state - Diplomacy is very complex don't want to risk **Screening diplomatic bags** in the airport two interpretations: 1. If you scan it, you do not violate art 27, §3 because you're not opening it and not detaining it nothing wrong with scanning a diplomatic bag 2. Why would you open the bag? To see what's inside: art wants to prevent you from looking inside but if you scan the bag then you would see what's inside Still discussion which one is right. ### Diplomatic agent Art 29 Vienna Convention: most fundamental rule of diplomatic law oldest rule of diplomacy (stay away from our country/diplomats). Art 30 Vienna Convention Art 31 Vienna Convention - Ex: cars parked everywhere Netherlands couldn't do anything because of art 31 Vienna Convention - §4: exceptions Not only criminal offence also administrative and civil cases (same rules apply) Art 37, §1 Vienna Convention: members of the family ### Consuls Consuls perform administrative tasks, such as issuing visas and passports. - Their role in assisting nationals is significant, but they have few political functions. - Consuls do not enjoy the same level of immunity as diplomatic agents. Consular Privileges: - Consular post\'s official correspondence (= all correspondence relation to the consular post and its functions) is inviolable. - Consular bags cannot be opened or detained (art 35) - If authorities suspect the bag contains items other than permitted correspondence or documents, they can request it be opened in the presence of the sending state's representative. - If the sending state refuses, the bag must be returned to its origin state. capita SELECTA: outer space =========================== Legal regime ------------ Respect of territorial sovereignty *judgment Nicaragua v. United States*: §251 - A state must authorize the flight when it's crossing another state Legal regime (1967, art 1-2 Outer Space treaty) Outer space is not subject to national appropriation by any means. Military uses of outer space (art 4 Outer Space treaty) ------------------------------------------------------- Any military activity (example: establishment of military bases) - Exception: scientific and other peaceful purposes Outer Space Treaty bans nuclear and mass destruction weapons in space but emphasizes that space exploration must benefit all humanity. This is often interpreted as prohibiting any military activity in space. Responsibility (art 6-8 Outer space treaty) ------------------------------------------- International responsibility for national activities. Activities of non-governmental entities? Authorization and supervision by the appropriate state arty to the treaty. International organization? Responsibility for compliance with the treaty shall be borne both by the international organisation and by the states parties to the treaty participating in such organization. Further development of space law: art 12 Convention on International Liability for Damage Caused by Space Objects (1972) Future of space law ------------------- Clear expansion of private activities - Examples: space tourism, commercial activities... capita SELECTA: the law of the sea ================================== developmnent of the law of the sea ---------------------------------- Functions sea: 1. A medium of communication 2. A vast reservoir of resources Basic framework = the 1982 Convention on the law of the sea. - Fundamental principle = the land dominates the sea so that the territorial situation constitutes the starting point for the determination of the naval rights of a (coastal) state. Internal waters --------------- Are assimilated within the sovereign territory of the state. Ex: coastal state = Belgium A coastal state can enforce its laws on foreign ships in its internal waters, but the flag state\'s judicial authorities may also act if crimes occur on board. Art 2 Convention on the law of the sea Territorial sea --------------- A coastal state\'s sovereignty extends beyond its land and internal waters to its territorial sea, including the airspace, seabed, and subsoil. ### The breadth of the territorial sea = twelve nautical miles (art 3 Convention) ### Baselines = defined from the low-water mark around the coasts of the state (art 4 Convention). - Exception in art 5 Convention *Case law: 1951 Anglo-Norwegian Fisheries case* (ICJ) - Facts: - Instead of measuring the territorial sea from the low-water line, the Norwegians constructed a series of straight baselines. This has the effect of enclosing parts that has normally been the high seas. - ICJ noted that the normal method of drawing baselines (art 5 Convention) was not applicable in this case because of geographic realities. - Since the usual did not apply, straight baselines could be considered + Norwegian system had been applied consistently over many years and there were no objections from other states the court applied the rules of custom law - Art 7-8 Convention as result (straight baselines) ### Right of innocent passage Doesn't matter if you are a coastal or landlocked state = ships of all states. Definition passage: art 18 Convention - Passage must be innocent = not touching the peace, good order or security of the coastal state (art 19 Convention) - Passage ≠ innocent passage Uniform interpretation of rules of international law governing innocent passage art 19 Convention - If we have a ship passing through the territorial sea and this ship is not engaged in the activities in art 19 then it is an innocent passage! ### Islands Art 121 Convention = regime of islands Islands can generate territorial seas. Breadth = 12 nautical miles (art 3 Convention) ### The legal nature of the territorial sea Territorial seas belong to the territorial sovereignty of the coastal state and thus belongs to it automatically. - Restrictions? innocent passage Art 27 Convention - §1: If a ship from another country passes the territorial sea, the coastal state may only exercise criminal jurisdiction on board of a foreign ship. - §2: If the ship is passing through the territorial sea, having left the internal waters of a coastal state, then the coastal state may act in any matter prescripted by its laws if this applies, a coastal state is not restricted under §1 Art 29- 32 Convention: warships - Nothing in the Convention affects the immunities of warships and other government ships operated for non-commercial purposes. Continental shelf ----------------- Art 76, §1 and 77, §1-2 Constitution Land-locked states ------------------ Art 69 Convention - Example: Switzerland Art 125 Convention - No absolute right of transit, it depends on agreements between a coastal state and a land-locked state. High seas --------- **Res communis** open to all states (coastal or land-locked). - Art 87 Convention **Maintenance of order** has rested upon the concept of the nationality of the ship and the consequent jurisdiction of the flag state over the ship. - *Lotus case 1927*: §25 - A collision occurred on the high seas between a French vessel -- Lotus -- and a Turkish vessel -- Boz-Kourt. - The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel. The 10 survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the Lotus. - In Turkey, the officer on watch of the Lotus (Demons), and the captain of the Turkish ship were charged with manslaughter. - Demons, a French national, was sentenced to 80 days of imprisonment and a fine. Art 110 Convention: right to visit when unauthorized broadcasting Definition **piracy:** art 101 and 105 Convention Art 111, par 1-2 Convention = **right of hot pursuit** - Right of pursuit = constructed to make sure that if we have a ship which has violated the rules of a coastal state, this ship cannot escape the punishment by fling high seas. - Jurisdiction of a state is extended. - Right stops as soon as ship enters territorial waters of other state or own state. - Right is limited because of sovereignty of states. *Example: If a pirate ship is in Belgium\'s internal waters or territorial sea and commits a crime, Belgium can prosecute them. If the pirates try to escape to the high seas, Belgium can still pursue and capture them under the right of hot pursuit, which allows a coastal state to extend its jurisdiction beyond its territorial waters.* Settlement of disputes ---------------------- Art 279 Convention art 2, par 3 UN Charter art 33 Charter By peaceful means - In accordance with the UN Charter - Of their own choice Art 280 Convention: the parties can choose methods other than those specified in the Convention. *Example: states of UN have agreed that if they have disputes regarding fishing that these disputes will be brought before the European court of Justice* capital selecta: Polar regions ============================== Artic region = ice, not land!! ------------------------------ Res communes part of the high seas - The Arctic\'s strategic importance is growing due to melting ice, allowing for resource exploitation and transit, though most ice formations remain part of the high seas. Antarctic region = ice covered land in the form of an island ------------------------------------------------------------ Antarctic Treaty (1959) suspends territorial claims and establishes an international regime to preserve the area, demilitarizing it and focusing on environmental protection. - Signed for the benefit of all mankind. - No sovereign control - Goal = suspend territorial claims regarding Antarctica as long as the treaty would last - Art 4 Treaty - Created recommendations. Capita selecta: jus in bello (International humanitarian law) ============================================================= Introduction ------------ Jus ad bellum resort to force: *are we going to use force?* **[Jus in bello]** law of war: conduct of hostilities law during war - Ex: Treatment of civilians? Leave them alone. - Human rights!!! Historical development of international humanitarian law -------------------------------------------------------- 1864: Battle of Solferino 'how do we hurt as many people at once.' - If we can't escape a war, we need rules red cross movement. - 4 Geneva Red Cross Conventions and additional protocols - Wounded and sick on land - Wounded and sick in sea - Treatment of prisoners of war - Protection of civilians in time of war - Art 4 doesn't tell us what a civilian is definition in additional protocol 1977 (art 50) - In case of doubt: person shall be considered to be a civilian - Art 43 Statue: armed forces ≠ civilians - Art 4 of the 3rd Convention: prisoners of war Scope of protection ------------------- Foundation Geneva Convention = principle that persons not actively engaged in warfare should be treated humanely. Armed conflicts = *Tadic case 1995*: §70 Art 2 Geneva Convention: common article = article that you can find in all the four conventions Common art 3 'all' Geneva Convention: all protected under this common article, deals with non-international armed conflicts 1. [First Geneva convention: wounded and sick in armed forces in the field (non-civilian)] - Art 12-14 2. [Second Geneva Convention: wounded and sick in armed forces on the sea (non-civilian)] - Art 12-13 3. [Third Geneva Convention: prisoners of war] - Art 3-4 & 12-14 & 17 (alinea 4) 4. [Fourth Geneva Convention: protection of civilian persons] - Art 4: the individual (not soldiers) = civilians - Art 47 (international) armed conflicts ------------------------------- Rules of international law apply to armed conflicts *Tadic case 1995*: §10 - Facts: - An attack launched against the town of Kozarac (Bosnia and Herzegovina) in 1992, the non-Serb civilians were detained in several prison facilities, where they were beaten, sexually assaulted, tortured, killed, and otherwise mistreated. - Duško Tadić was the President of the Local Board of the Serb Democratic Party in Kozarac (Bosnia and Herzegovina). - Trial Chamber II found Duško Tadić guilty of crimes against humanity and war crimes and, in a separate sentencing judgment, sentenced him to 20 years of imprisonment. *Commentary International Committee of the Red Cross*, §422-424 A distinction between international and non-international armed conflicts: - **International conflicts**: involve interstate relations and are governed by international law. - **Non-international conflicts**: are traditionally internal matters of a state, outside international law\'s reach. The line between the two is crossed when: - A foreign state directly intervenes in a civil conflict. - A foreign state exercises overall control over a group involved in the conflict. The 1949 Geneva Conventions primarily addressed international conflicts. Common art 3 provides minimum guarantees for non-international armed conflicts, ensuring humane treatment for: - Persons not actively participating in hostilities (e.g., civilians, sick, wounded). - Members of armed forces who have surrendered or are incapacitated. Protection of civilians and occupation -------------------------------------- Occupation = to take control of the territory or state Protected persons under the Fourth Convention: art 4 and 6 Application of the Fourth Convention: art 2 - It applies from the outset of any conflict or occupation. - It covers declared wars or any armed conflict between contracting parties, even if the state of war is not recognized. - It applies to partial or total occupation, even without armed resistance. - The convention remains in effect until the general cessation of military operations. Definition of a civilian: - Under Additional Protocol I, a civilian is anyone not covered by art 4 a) of the Third Convention or art 43 of the First Protocol. - Art 50 first additional protocol - In case of doubt, the person is presumed to be a civilian. Occupation - Concept of occupying power: - *Congo vs Uganda case* 2005: §173, 178 and 243 - *Hague Convention 1907* (art 42-43) - Art 47, part III, Section III Fourth Geneva Convention Art 43 Hague Convention: - If occupation occurs, only authority and not sovereignty passes to the occupier - Secondly, the occupier has the right and obligation to ensure the order in that country - Thirdly existing laws must be preserved as far as possible - Fourthly, the basis of the authority of the occupier lies in effective control Conduct of hostilities ---------------------- Principle of distinction - Art 48 First additional protocol I 1977 - [Civilian objects] (ex: house, hospital, school) - Art 48: civilian objects cannot be objects of attack. - [Military objects]: art 52 **principle of proportionality** (*Opinion Judge Higgins*: §20) - [Cultural object] (ex: museum): art 53 and 54 Art 56: *Advisory opinion ICJ*: §78: '**cardinal principles'** essence of international humanitarian law - Breaches can become genocide. Enforcement of international humanitarian law --------------------------------------------- Breaches can be war crimes, crimes against humanity, or genocide, with universal jurisdiction. The International Red Cross (IRC), particularly the ICRC, ensures the application of the Geneva Conventions, operates in disasters, and visits prisoners of war. Challenges ---------- Complex conflicts 1. Blurred lines between international and non-international conflicts, with more civilian involvement and casualties. 2. Advancements in warfare: sophisticated techniques and weapons complicate IHL enforcement. european Union law European union law ================== European INTEGRATION!!! ----------------------- ### Historical development **1945:** - Adolf Hitler committed suicide left continent in ruins. - People wanted peace: San Francisco Conference - Birthplace UN **1946: Let Europe arise speech** - Churchill addressed the University of Zurich - He wanted a regional cooperative body = Council of Europe perform under wings UN. - 'We need a US of Europe.' - European integration = driving force behind postwar policymaking. **1949: Jean Monnet and Robert Schuman** - France had fierce: if German industrial can flourish again, maybe they can start a WWIII. - They made a plan about coal and steel Shuman plan = prevent war between France and Germany, make it material impossible. **1951: Shaman plan as basis for Treaty of Paris** - Treaty established the European Coal and Steel Community (ECSC) - Beginning of European integration - Coal and steel: sources of materials of war - Signed by 6 states: Benelux, Italy, Germany, and France - UK didn't like the idea of high authority. **1955: Spaak report** - Paul-Henri Spaak = Belgian Foreign Minister - Wrote a report: 'we need further integration'. - Meeting in Italy with foreign ministers: 'let's establish a common market.' - Report = basis for the treaties of Rome **1957: Treaties of Rome** - EEC = first treaty - European economic community - EURATOM = second treaty - Regarding atom energy **1958: Charles De Gaulle = president of France** - Vision for Europe = we need intergovernmentalism, we don't need supranationalism - EU now = supranational **1961:** - UK recognized its economic isolation after the establishment of a common market under the EEC Treaty - UK applied for membership but got rejected two times by De Gaulle. - De Gaulle\'s veto left France isolated in its position. **\ ** **1963: Van Gend & Loos** - Facts: Van Gend & Loos, a Dutch transport company, was required to pay import taxes on goods imported from Germany. - The company contested the taxation, arguing that it violated the EEC Treaty, specifically breaching art 12 of the EEC. - Art 12 EEC was relevant legislation at the time but is no longer in effect. - If Van Gend & Loos would come before the court today art 30 TFEU - Van Gend & Loos raised the issue before a national Dutch court. - The court sought clarification from the Court of Justice of the European Union (CJEU) on whether Van Gend & Loos could invoke EEC law in a national court. - The CJEU ruled that individuals can invoke international law before national courts, establishing that the EEC constitutes a new legal order. - It affirmed that the EEC has the authority to create its own rules, establishing a supranational legal framework. - EU law takes precedence over national law, reinforcing the principle of supremacy of EU law. **1984: French Finance Minister Jacques Delors** - 'We need further integration on a lot of fields but most important on the common market.' **1986: Single European Act (SEA)** - By the signing of the SEA constitution of European Council **1989: Fall of Belin wall** - End of European division - Further integration **1992: Treaty of Maastricht** - Not only about economics, also about political integration - Political integration led to Treaty of Maastricht (Treaty of EU = TEU) - EU is a political project not only economic project so you have to change the name of the community (EEC EC) **1997: Treaty of Amsterdam** - Integrated the Schengen agreement. - Schengen area: no internal borders, but if you leave EU than you will need border controls. - Visualize the new legal order. - Stated have opportunity to still close borders (ex: Germany) (examen lees hierover) **2001: Treaty of Nice** - Convention on the future of Europe = meeting in Laken: parties wanted to construct a constitution for this new legal order further develop super state **2004: Constitutional treaty** - The French and Dutch authorities created a Referenda. - People didn't agree. - We did not get a constitution because these two countries would work together. **2007: Treaty of Lisbon** - Basis = constitutional treaty - Took out constitutional elements (national anthem) French and Netherlands signed. - Not UK imposed the treaty. - Creates two treaties: TEU and TFEU (VEU, VWEU) together = primary EU law Legal framework --------------- Three big pieces: 1. **Primary EU law** - In TEU and TFEU - Treaties give power to the institutions of the Union to make secondary EU law. 2. **Secondary EU law** - Art 288 TFEU - Law that the institutions create. - Gap between regulations/directives/decisions and recommendations/opinions last two not binding. 3. **Other sources** - Case law from EU court of justice - Legal doctrine (books regarding EU) The institutions of the union (art 13 TEU) ------------------------------------------ ### Introduction EU has an institutional framework designed to promote its values, objectives, and interests while serving its citizens and member states. Framework ensures policy consistency, effectiveness, and continuity through: - A legislative process involving the Commission, Parliament, and Council - Doctrine of conferred powers Art 13 TEU art 288 TFEU Institutions work together required by the treaty legislative process. Doctrine of conferred powers: art 13, 2 TEU = the institutions only have the powers which are granted to them by EU law ### european parliament Elected by direct universal suffrage at five-year intervals (art 14, 3 TEU) Located in Brussels and Strasbourg. European political parties? - No if you are elected, you are elected as a member of your own political party, however the liberal par example forms a liberal group, not a party. Powers (art 14, 1 TEU) (cross reference) - **Legislative** = law making - Weaker than its power on a national level because it has not the monopoly over legislation -- art 225 TFEU - **Over the executive** - Powers to challenge, double power of approval, powers of enquiry - **Financial** (art 312, 1 -- 2 TFEU) - Controls the budget Cross references: - Powers to challenge: - Parliament can hold other institutions accountable: art 263 & art 265 TFEU. - Art 17, 7 TEU: Double power of approval, it must approve: the president of European commission, the members of commission - Art 20, 2, (d) TFEU: Powers of enquiry (art 24 & 227 TFEU) Art 249 TFEU: the European Commission must submit annual reports to the Parliament. Art 284 TFEU: ECB must do the same. President must report too (art 15, 6 TEU) ### European council !! Not the Council of Europe Art 15, §2 TEU: consists of the heads of government of the member states, together with its President (Ursula von der Leyen) and the European Commission President Tasks of the President of the European Council: - Art 15, §6 TEU Council cannot propose legislation, but it does have general agenda-setting power that sets the overall political direction. ### The council of ministers !! Not the Council of Europe Consists of a representative of each member state at ministerial lever, who may commit the government of the member state in question and cast its vote (art 16, §2 TEU). Different configurations depending on the subject (art 16, §6 TEU en art 236 TFEU) The council shall, jointly with the European Parliament, exercise legislative and budgetary functions carry out policymaking and coordinating functions (art 16, §1 TEU). Presidency: art 16, 9 TEU art 236 TFEU: The European Council will decide on the configuration - Two relevant decisions: 1. Decision 2009/908/EU (2) 2. Decision 2009/881/EU art 1, 2 ### The European commission (art 13 and 17 TEU) The Commission\'s term is 5 years and includes one member from each EU state, including the President and the High Representative, who is also a Vice-President. - Commissioners are assigned portfolios by the President. The High Representative serves as the EU\'s chief diplomat, representing it externally. - The President, without a portfolio, represents the Commission (art 17, 1, 2, 6 &7 TEU). - The Council, with the President-elect, approves the list of proposed members. Powers: 1. **Quasi-legislation**: power to delegate and implement measures. - Adopted under COMITOLOGY: commission works together with special committees and there we find representatives from national governance. - [Delegated measures] - Delegate measures to amend or supplement non-essential elements (art 290, 1 TFEU) - Essential elements remain under legislative control. - [Implementing measures] - Provide uniformity to the application and implementation of union law for sovereignty (art 291, 2 TFEU) 2. **Legislative initiative monopoly** - Union legislative acts and other specified acts can only be adopted based on a Commission proposal unless treaties state otherwise. 3. **Executive powers** - Ensures Union revenue collection and appropriate application of rates. - Oversees and coordinates significant Union spending. 4. **Supervisory powers** - Promotes the Union\'s general interest and ensures treaty application. - Oversees Union law application under the Court of Justice\'s control. - Manages the budget, programmes, and multi-annual planning. High Representative (art 27, 2 TEU) The Commission supervises: art 17 TEU, ex. 108, 2 TFEU, Art 258 TFEU: Commission can bring a state before court. - Art 260, 2 TFEU: Commission will look whether the member state will follow/comply with the judgment of the Court. European commission plays a key role in competition law. ### Court of justice of the European union (CJEU) Legal framework: - Art 19 TEU & 253 TFEU - Art 16, 50a, 56 Statute of the Court of Justice of the EU Art 19, §1: CJEU currently comprises two courts: 1. The Court of Justice - You can appeal here coming from the General Court and here the Court will give the final and binding judgement. 2. The General Court Art 19, §2: one judge from each member state - **Principle of collegiality:** judges have a common interest, as members of the judiciary, in getting the law right and that they are therefore willing to listen, persuade and be persuaded, all in an atmosphere of courtesy and respect. That they work closely together with the respect for others. Advocates General: art 252 TFEU = legal representative of the public interest. - Before decision of the Court opinion by Advocate General (not binding) but mostly followed by the Court. Cases are rarely decided by the full Court: art 251 TFEU - Full court = where a case is of exceptional importance - Largest chamber: the Grand Chamber (15 judges) Art 19, §3: tasks President is elected by the judges: art 253 TFEU and art 9a Statute Court of Justice of the EU - Koen Lenaerts: president of the European Court of Justice It is up to the national court to decide the **merits of the dispute** (art 267 TFEU) it deals with the relationship between the Court of Justice of the EU & the national courts. - A private party/citizen does not have access to the Court of Justice of the EU, you cannot appeal against decisions of the national court to the Court of Justice of the EU: art 267 TFEU. - It is the national court (= gatekeeper) that can make a reference to the CJEU this reference takes the form of a question or several questions about Union Law and the CJEU answers this question in the form of a judgement that must be followed by the national court. - This principle is *not absolute*: you can present arguments to the Court of Justice of the EU as an individual. The Court of Justice is best equipped to develop EU law. - This places the Court in an extremely powerful position. - And, over the years, several concerns have emerged:  1. Judicial legislation: judgments which push the limits of interpretation. 2. The Court of Justice judgements push too often towards greater integration. 3. Teleological reasoning: legal provision being interpreted in the light of a broader or the overall scheme to which the provision is claimed to give effect. A judgement given by the Court of Justice binds the referring national court. - National compliance is high there remains the question of the effects of the Court's judgments on the wider EU community. - The doctrine of stare decisis and precedent do not *formally *exist in EU law. - Foto-Frost case 1987 §17 Does it bind other national courts -- is there need for national compliance? - In a common law country, they need to comply. - ICC-case §1: if the declares that a measure from the EU is invalid then it binds all courts. - Kühn case §21: other interpretations of EU law given by the court bind national authorities. - NPO v Jonkman §39: national judges must set aside national laws that conflict with judgments of the Court of Justice of the EU. ### European central bank (ECB) Euro - Economic conditions - Member states with a derogation ECB = powerful financial regulator/supervisor - Main task: price stability (art 127 TFEU) Historically, the EURO was an electronic currency (like Bitcoin), the coins itself were introduced 3 years later. The ECB was trusted with the safeguarding of the currency. To adopt the EURO by a member state: art 140 TFEU - If you do not meet these requirements: art 139, §1 TFEU - Protocol EURO Group: art 137 TFEU The principle of transparency ----------------------------- The Union\'s institutions must operate transparently: art 15 TFEU. - The scope of the right: art 2 Regulation 2001 - Exceptions: art 4 Regulation 2001 - Public access to a register: art 11 Regulation 2001 Sison v. Council 2007 (§47): - Institutions may refuse the right of access but must then justify why they refuse it. - Must look at the document first, may not just refuse and then justify. - The risk must not be hypothetical. - There must be a real danger. Making EU law ------------- ### Primary and secondary EU Law **Primary EU Law** - TEU - TFEU They include several provisions which set out rights and obligations for different actors, and they are also framework treaties. Empower EU institutions to make secondary law. **Secondary EU Law** 1. Regulations - General application - Binding in its entirety and directly applicable in all member states. 2. Directives - Binding on member states regarding the result to be achieved but allow national authorities to choose the form and methods of implementation. 3. Decisions - Binding in its entirety - A decision is binding only on those to whom it is addressed. 4. Recommendations - No binding force. 5. Opinions - No binding force. [Regulations ] - Ensure uniformity across the EU. - Apply generally to objective situations, not specific cases. - Directly applicable: automatically part of national law without transposition. [Directives] - Bind member states to achieve specific results. - Allow states flexibility in form and method of implementation. - Used for politically sensitive matters requiring national discretion. ### Legislative procedures **A necessary distinction:** ordinary legislative procedure special legislative procedure - Ordinary legislative procedure: art 294 TFEU (used 90% of the time) - Special legislative procedure: art 289, §2 TFEU **The ordinary legislative procedure** - Proposal by the commission - Art 294, §2 TFEU: Commission is the agenda-setter. - First reading - No agreement following the first reading. - §5-§6: common position of the council - Second reading - No agreement following the second reading. - The Conciliation Committee is established. - §8-§12 - Third reading - The EU operates on a foundation of representative democracy. - Two levels of representation: 1. EU citizens represented in the European Parliament. 2. Member States represented in the European Council and the Council. - National parliaments play a key role in EU law-making and its implementation at the national level. The authority of EU Law ----------------------- ### A new legal order Art 10 & 12 TEU: the Union is a representative democracy, the National Parliaments (independent) are needed, they need to transpone the legislation Representation of 2 parties: 1. You and I are represented in the European Parliament 2. Member states are represented in the European Council and Council of Ministers, not in the Commission Authority of EU law: court of justice has adopted 2 judgements which shape how we conceive union law Van Gend en Loos: you can evoke union law before a national court created a new legal order *Costa v ENEL*: starts from Van Gend en Loos - It's about an Italian law and this law tried to nationalize the production of electricity. - Costa was a shareholder of Edinson Volta and was affected by the nationalization they were against the Italian law. - Costa claimed that Italian law went against Union law, Italian government claimed that this was just a matter of national law, the legislation post-dated the EEC treaty (pg 593) states have limited their sovereign rights Van Gend en Loos & Costa v. ENEL curb (=beteugelen) state power. If we accept the Union is a new legal order and state power is curbed (limited their sovereign rights) we can say that member states follows Union law, however sometimes states don't because they don't want to, usually happens when we are dealing with issues with strong sensibility (ex: human rights; the states tend to act a little bit difficult, because the states say: why can't we arrange things about human rights) member states are still sovereign, they only have given up some sovereign rights ### Fundamental rights The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights Internationale Handelsgesellschaft, §4: conflict between Union law and fundamental rights (right to trade) - If we are talking about fundamental rights, the court will look into the national laws regarding fundamental rights/constitutional traditions common to the Member states. After this judgment, the court start looking to other international treaties - Charter of Fundamental Rights of the European Union - EUCFR Regarding human rights we look at two things: 1. Behavior institutions 2. Member States when implementing EU law Exception: *Egenberger case 2018, §76* - Protestants association (Evangelische werk) and they refused Egenberger a job because she was not a protestant. - German law and this law said that is was ok to do that - Egenberger challenged this as religious discrimination (art 21 & 47 Charter of Fundamental Rights) - You can evoke art 21 Charter of Fundamental Rights against a private party Interpretations are to be aligned with those of the ECHR (= European Court of Human Rights) where they concern rights which correspond to those in the ECHR - Formal position: take account of the case law of the ECHR Art 52-53 EU Charter of Fundamental Rights ### Features of the eu law 1. **Autonomy** - It's for EU law to determine which activities are governed by it and how they are governed. - *Costa ENEL 1994 case* - It was for the EU law to determine whether the nationalization breached EU law. 2. **Primacy** - When EU law has identified a conflict between it and national law, it should take precedence over national law (as in Costa v ENEL 1994 and Melloni 2013 case). - *Melloni 2013 case, §56, §58* - Mr Melloni is an Italian businessman who was prosecuted for bankruptcy fraud and tried to escape the administration of justice in his home country by hiding in Spain. - In 1996, Italy requested Spain for his extradition (= uitlevering), but Melloni escaped as soon as he was released on bail by the Spanish authorities. - He was aware of the time and place of the trial in his home country, he preferred not to attend it personally. Instead, he sent his lawyers, who defended and represented him during the entire criminal process, all the way up to the Italian Supreme Court. - Melloni was found guilty, and Italy issued a European arrest warrant ordering Spain to surrender Melloni. - Melloni opposed his surrender. His main argument was that, if he were to be surrendered, he would not be entitled to a retrial in Italy, even though he had been convicted in his absence. - Melloni invoked the right to a fair trial. In the light of the conflict between its own case law and the EU legal framework, the Constitutional Court of Spain clearly struggled with Melloni's petition, and in 2011 decided to ask the CJEU for a preliminary ruling. - The question whether art 53 EU Charter gives Member States the option to go further than the rights granted by EU law if their constitution requires so, and if needed, to give priority to their national law. - Jurisdictional dimension: it's not for the national law to determine which court can hear conflicts. - *Simmenthal case*: - Simmenthal, based in Monza, imports beef from France to Italy and must pay for border veterinary inspections. These inspections are based on Italian legislation and in violation of art 12 of the EEC Treaty (now art 30 TFEU). - Case relates to the situation where there is a conflict between Union law and national law, Union law must take priority (§17, 18, 21, 22). 3. **Pre-emption** - Deals with the question *[when] *there is a conflict between national law and EU law. - Art 2 TFEU - Art 3 TFEU = exclusive competence of the EU - Art 4 TFEU = shared competence - *Commission v. United Kingdom §12* - European Commission challenged a UK rule requiring specific car lights to drive on British roads. - The commission argued this contradicted an EU directive, which only required vehicles to meet general lighting standards, not the UK's specific rule.**\ ** 4. **Fidelity principle** - Art 4, §3 TEU - Each level and unit must act to ensure the proper functioning of the system. - This applies to both member states and EU institutions, ensuring the full effectiveness of EU law. - *Commission v. France: §65* - French farmers launched violent protests against Spanish strawberry imports. - The French government did little to stop/prosecute the offenders. - Although the actions were by private individuals and EU law (art 34 TFEU) focused on state obligations, the Court ruled that France failed to protect the free movement of goods, as it didn't take adequate measures to end vandalism. Rights and remedies in national courts -------------------------------------- ### DEVELOPMENT OF THE DOCTRINE OF DIRECT EFFECT *Gend & Loos case 1963* - Two central elements to the judgement: 1. The acknowledgement that EU law was a new legal order with its own powerful authority 2. The establishment of a system of individual rights trough the doctrine of direct effect Essence dispute = whether a provision (EU law) could be invoked before national court certain criteria: - Clear - Unconditional - Negatively phrased - Must require no legislative intervention In 1970: Court relaxed criteria for when a treaty provision had direct effect. **Direct effect** = it enables individuals to immediately invoke a European provision before a national or European court. *Defrenne v Sabena case 1976* - The provision must be unequivocal - Facts: - Gebrielle Defrenne, a female air steward, challenged Belgium's law requiring female stewards to retire at 40, claiming it violated the EU principle of equal pay for equal work, leading to lower pension payments. - Decision court: §18-19 and §21-24 - Court considers whether a provision is clear and directly benefits individuals, imposing duties on national administrations to protect these rights. - *Belgische staat v Cobelfret,* §64 The 1976 Defrenne case addressed the direct effect of EU law. - The Belgian government argued it wasn\'t liable for discrimination by Sabena, a private company, but the Court disagreed. - It ruled that EU law imposes duties on states to protect individual rights, allowing treaty provisions to be invoked against both states and private parties. - This established: 1. Vertical direct effect (EU law against states before national judge) 2. Horizontal direct effect (EU law against private parties before national judge) *\ * *Rewe case (1976)*, §5 - Court clarified that while individuals can bring cases to court, and the EU law\'s interpretation can guide judgments and remedies, it is ultimately up to national authorities to decide how to provide those remedies. - Due to bureaucracy, it was impossible to use your right for effective remedy. - Member states should create an easy system to get your remedies. ### DIRECT EFFECT AND SECONDARY EU LAW *What if you want to use a directive before national court?* **Regulations** (art 288 TFEU) = binding and directly applicable (direct effect) you can bring it before national court **Directives** (art 288 TFEU) = states can choose the form and methods examined by court so led to a lot of case law: *Van Duyn case 1974:* §12 - Facts: - Miss van Duyn wanted to work in the UK and secured a job with the Church of Scientology. - However, the UK had imposed a ban on foreign Scientologists entering the country. The directive was aimed at prohibiting entry based on an individual\'s personal conduct. - Miss van Duyn argued she had done nothing wrong, but the European Court disagreed, ruling in favor of the UK. - Directives can have direct effect in certain circumstances. *Marshall case 1986* - Facts: - Marshall, a dietitian employed by the British health authority (a government body), was dismissed at age 62 because she had surpassed the pensionable age of 60 (working two years beyond the limit). Male dietitians had a different pensionable age. - Secondary EU law before court: directive that provided for equal treatment for men and women. - §48-49 and §51 - The case clarified the difference between regulations and directives, stating that only regulations have horizontal direct effect, meaning they can be invoked against private parties. In contrast, directives can only be invoked against the state. *Question? What is a state in the light of this case?* Foster v. British Gas 1990: §22 - Comparable to Marshall case - Facts: - Dismissed employee was suing British Gas (a privatized company). - However, the company still had government influence, as board members were appointed by the government, indicating political control. - This raises the question: does the employer perform a public service? - Public Service yes, British Gas was performing a public service, so it could be considered a state body. - State Control the government's involvement in appointing board members meant there was state control in this case. This reasoning can be applied to the Marshall case. If Marshall had been employed by a public authority (as in Foster\'s case), she could have relied on the directive. However, if she had worked for a private hospital, she would not have been able to invoke the directive. ### State liability Member state breached EU law: what if you are a state and you breach law? = state liability exists *Flandria case* - Facts: - The case involved a tree that was rotting and at risk of falling. Beneath the tree was Flandria, a company with plants. Despite discussions about the issue, the city of Brugge took no action, and when the tree eventually fell, it caused damage. As a result, the city could be held liable for the damage. - Milestone case *Francovich case 1991*: §39-40 - Facts - Italy failed to implement a directive, leading to significant legal breaches between employees and employers, which caused negative financial consequences for people in Italy. - Can Italy be held liable for not implementing the directive? Yes, according to art 288 TFEU - Individuals may have the right to seek reparations - The case doesn\'t specify when a breach occurs look at Brasserie du Pêcheur case *Brasserie du Pêcheur 1996* - Facts: - A French company exported beer to Germany but was forced to stop due to a German regulation banning beers with certain additives. - This regulation restricted the free movement of goods within the EU. - Breaching EU law gives individuals the right to seek compensation (§51) (art 1382) - Threefold test for state liability: 1. The infringed rule must grant rights to individuals, with clear duties towards them. 2. There must be a sufficiently serious breach of EU law. 3. There must be a direct causal link between the breach and the harm caused. - If these criteria are met, the state can be held liable for damages. News: UK lost satellite The structure of the european union ----------------------------------- Art 3 TEU = essence of where EU is going (§2-4) 1. An area of freedom, security, and justice without internal borders 2. An internal market = a single market, common market European Union is one single market (goods and services) 3. An economic and monetary union: EURO Why are we citizens of EU because we are citizens of Belgium - Two nationalities: one of you home state and the European one ### EU CITIZENSHIP #### Additional citizenship Citizenship of the Union shall be additional to and not replace national citizenship. - Art 20, §1 TFEU - Why important? Because of history of the Union. We didn't create a super state/constitution and we did not replace national citizenship. The idea of replacing national citizenship is rejected: *Case of Rotman 2010,* §59 - Facts: - Janko Rottman, an Austrian citizen, applied for German citizenship, renouncing his Austrian nationality. - However, Germany revoked his German citizenship after discovering he had concealed a criminal prosecution in his application, leaving him stateless and without EU citizenship (as EU citizenship is tied to national citizenship). - Court ruling: - Revoking nationality is legal but must respect the principle of proportionality. In Rottman's case, this principle was not upheld, and he regained Austrian citizenship Art 20 TFEU is taken further in art 21 TFEU (primary EU law) (cross reference to secondary EU law: directive 2004/38 = citizens directive) - Art 6 of the directive: 3 months - Art 7 of the directive: longer than 3 months - Art 16, §1 directive: par 1 - Can she lose the right? Art 16, §4 of the directive #### A right to move and reside **A/ Categories of residence** Art 20, §2 TFEU art 21 TFEU elaborates on this right (cross reference Directive 2004/38: art 4-7 = citizens Directive): - Categories of residence: - Short-term residence (3 months) = art 6 Directive - Residence in another member state for more than 3 months: art 7 Directive - Permanent residence: art 16, §1 Directive - You can lose it: art 16, §4 Directive **B/ Conditions of residence** 1. [Requirement to be self-sufficient] - Ex: sickness insurance, stable income, sufficient resources... 2. [Equality in the host state] - There is a prohibition on the discrimination based on nationality because it enables a person to participate in work and the society of the host state. - Art 18 TFEU (cross reference art 24 citizens directive) - If you are legally in another state ten no discrimination. **C/ Family rights** Family members enjoy a series of parallel rights to the Union citizens - You can take your family from one Member State to another and non-European union family from outside the EU inside the Union - Art 2,2 Directive: spouse = partner who you are married to *Coman case 2018*, §45: - Facts: - A same-sex couple, married in one EU member state, wishes to relocate to another EU member state where same-sex marriage is not legally recognized. One partner seeks to bring their spouse to live with them in this new state. - European Court: - Clarified that under EU law, if you are a European citizen, you have the right to bring your spouse (regardless of gender) to live with you in another member state. This applies even if the host state does not recognize same-sex marriage. - Does this ruling require member states to legalize same-sex marriage? - No, this doesn't force member states to marry same-sex couples. It does force member states to recognize marriages performed by other member states sovereignty *Zhu and Chen (2004), §20, 45 and 46* - Case deals with children who are European Union citizens and therefore they enjoy the same rights as adults (art 21 TFEU) - Facts: - Baby Zhu, an Irish citizen, and her mother Chen, a Chinese national, sought the right to live together in the UK. They met the requirements of sufficient resources and health insurance (self-sufficiency). - Minors (baby) need a caretaker (can be a third party) (art 21 TFEU) - When EU children exercise their rights to free movement and residence, the person primarily responsible for their care, regardless of nationality, is granted parallel residence rights. - These rights generally last until the child completes their education. By this time, the carer will typically have lived in the host country for several years, making it harder to justify their removal on human rights grounds. Furthermore, it is arguable that carers should also be entitled to permanent residence after five years under the Citizenship Directive. *Ruiz Zambrano v Belgium 2011*, §41-44 - Right to remain in the Union. - The court used the reasoning from Zhu and Chen and Rottman) - Facts: - Ruiz and his wife came from Colombia and had 2 children and they had Belgian passports and so European Union citizens. - Parents were threatened with expulsion and the parents said that it would violate the rights of the children - Court stated: §41: if we would expel the parents, we would cause the kids to leave and that is not okay. *Chavez-Vilchez case 2017*, §68 - Facts: - Case against the Netherlands and it involved a group of mothers, and they faced expulsion from the Netherlands but they had Dutch children so Union citizens so they could all stay in the Netherlands and the mo