Tomuschat - Human rights: between idealism and realism

The Collected Courses of the Academy of European Law

Series Editors: Professor Grinne de Brca,

Fordham Law School, New York

Professor Bruno de Witte,

Professor Marise Cremona, and

Professor Francesco Francioni,

European University Institute,

Florence

Assistant Editor: Anny Bremner, European University

Institute, Florence

VOLUME XIII/1

Human Rights: Between Idealism and Realism

Second Edition

The Collected Courses of the Academy of European Law Edited by Professor Marise Cremona, Professor Grinne de Brca, Professor Bruno de Witte, and Professor Franceso Francioni Assistant Editor: Anny Bremner

This series brings together the Collected Courses of the Academy of European Law in Florence. The Academys mission is to produce scholarly analyses which are at the cutting edge of the two fields in which it works: European Union law and human rights law. A general course is given each year in each field, by a distinguished scholar and/or practitioner, who either examines the field as a whole through a particular thematic, conceptual, or philosophical lens, or who looks at a particular theme in the context of the overall body of law in the field. The Academy also publishes each year a volume of collected essays with a specific theme in each of the two fields.

Human Rights

Between Idealism and Realism

Second Edition

CHRISTIAN TOMUSCHAT

Academy of European Law
European University Institute

Great Clarendon Street, Oxford OX2 6DP

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Christian Tomuschat, 2008

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First published 2008

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British Library Cataloguing in Publication Data

Data available

Library of Congress Cataloging in Publication Data

Tomuschat, Christian.

Human rights: between idealism and realism / Christian Tomuschat.2nd ed. rev and expanded.

p. cm.

Includes bibliographical references and index.

ISBN13: 9780199232741 (hardback: alk. paper)

ISBN13: 9780199232758 (pbk.: alk. paper) 1. Human rights. I. Title.

K3240.T66 2008

341.4'8dc22 2008017166

ISBN 9780199232741

ISBN 9780199232758 (Pbk)

1 3 5 7 9 10 8 6 4 2

Preface

The first edition of this book appeared in 2003. Since it found a friendly welcome from interested readersspecialists in human rights law, practitioners, and law students, but also members of the public at largea new edition became necessary. To the extent possible, the author has attempted to bring the text jour. Indeed, many crucially important developments have taken place in the meantime. The system of the United Nations was profoundly overhauled by the abolition of the Commission on Human Rights and its replacement by the Human Rights Council. In addition, the case law of the bodies entrusted with protecting human rights has greatly increased.

The general structure of this book, which emerged from lectures given in 2002 at the European University Institute of Florence, has remained unchanged. It is not a practitioners handbook. It attempts to combine principled legal reasoning with a sharp assessment of the relevant practice. Given the vast dimensions of the area covered, it was not possible to devote monographic attention to each one of the issues discussed. Probably, such a strategy would also have made the book unreadable. Nonetheless, a deliberate effort has been made to apprise the reader of all the defining features of the mechanisms dealt with in the following pages. The closing date for the work of updating was generally December 2007.

Christian Tomuschat

Summary Contents

Contents

AFRICAN COMMISSION ON HUMAN RIGHTS AND PEOPLES RIGHTS

Article 19 v Eritrea, 30 May 2007, 22nd Activity Report (2007) Annexure 2

Commission Nationale des Droits de lHomme et des Liberts v Chad

Democratic Republic of Congo v Burundi, Rwanda and Uganda, May 2003, 20th Activity Report (2006) Annex IV

Lawyers for Human Rights v Swaziland, 11 May 2005, 18th Activity Report (2005) Annex III

Mauritania case, 11 May 2000, (2000) 21 HRLJ 413

Union Interafricaine des Droits de lHomme v Zaire, October 1995, 9th Activity Report The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria (Ogoniland case), October 2001, 15th Activity Report, Annex V

COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES

Ayadi, Case T-253/02, 12 July 2006

Brasserie du Pcheur and Factortame, Cases C-46/93 and C-48/93, 5 March 1996 [1996] ECR I-1029

Commission v Council of the EU, Case C-176/03, 13 September 2005

Commission v Denmark, Case C-150/04, 30 January 2007

Costa v ENEL, Case 6/64 [1964] ECR 585

Courage v Crehan, Case C-453/99, 20 September 2001

Farrell, Case C-356/05, 19 April 2007

Francovich, 19 November 1991, [1991] ECR I-5403

Internationale Handelsgesellschaft [1970] ECR 1125

Jgo-Qur, 3 May 2002, [2002] ECR II-2365

Nold [1974] ECR 491

Prsident, Geitling, Mausegatt, Nold v High Authority, [1960] ECR 885

Robins and others, Case C-278/05, 25 January 2007

Roquette v Commission, Case C-94/00, 22 October 2002, [2002] ECR I-9039

Stauder [1969] ECR 419

Unin de Pequeos Agricultores v Council, Case C-50/00 P, Opinion of Advocate-General, 21 March 2002, [2002] ECR I-6681; Judgment of 25 July 2002, ibid 6719

EUROPEAN COMMISSION OF HUMAN RIGHTS

Austria v Italy, 11 January 1961, 4 YBECHR (1961) 116

Greece v United Kingdom 2 YBECHR (19581959) 182

European committee of social rights

Quaker Council for European Affairs v Greece (No 8/2000), 27 April 2001 COURT OF HUMAN RIGHTS

Akdivar, 1 April 1998, Reports of Judgments and Decisions (1998-II), 711