CYIL 2015

MONIKA FOREJTOVÁ

CYIL 6 ȍ2015Ȏ

Introduction Development of international protection of human rights on both the universal and regional level has been one of the key issues occupying states, especially since the end of the Second World War. Human rights protection is a field showing the greatest potential for the growth of the number and scope of peremptory norms. 1 At the same time, the matter of human rights has brought uncertainties and doubts as to the scope of human rights and their applicability to all the entities subject to international law. This means that it has not been only the states, as high treaty parties, who have been entering the sphere of human rights in the last decades, but also other international entities, such as the European Union. The duty to uphold and respect human rights is, first and foremost, a duty of the states, which can even result in a liability in relation to legal entities. 2 Since 2014 the key European issues when it comes to regional human rights protection have been: the scope of human rights and the extent, to which the two European courts participate in their protection. The first of the two courts, the European Court of Human Rights in Strasbourg (hereinafter also as “ECtHR”) has been specializing in human rights protection as its chief priority. The other, the Court of Justice of the European Union (hereinafter also as “CJEU”) has yet to develop its final doctrine of human rights. On the EU level, human rights protection is a dynamic system, still seeking its place within the established Strasbourg mechanism of protection of human rights. European Union and the European Convention on Human Rights From the Laeken Declaration in 2001 to the approval of the Charter of Fundamental Rights (2001 – 2003) and EU conferences (2003 – 2007), during which the matter of EU standard of protection of human rights was repeatedly discussed, seeds were sown of a future clash of at least two approaches towards the relation of Strasbourg and Luxembourg systems of human rights protection. Both approaches shared the same goal – setting a high level of protection of human rights in Europe and the European Union. The first approach was expressed by incorporating the Charter of Fundamental Rights from Nice into the primary law. The other was based on the accession of the European Union to the European Convention on Human Rights of 1950 (hereinafter also as the “Convention” or “ECHR”). The Convention has been the basis of protection of human rights within the framework of the Council of Europe and an established tool of enforcing individual human rights. A wide forum of human rights advocates agreed that the best way would be to combine 1 ŠTURMA, P., FAIX, M. (eds.): Lidskoprávní dimenze mezinárodního práva. Studie z lidských práv č. 7 (Human right dimension of international law. Studies in human rights no. 7). Prague: Charles University, Faculty of Law, 2014, p. 13. 2 Ibid ., p. 46.

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