European Law Newsletter. Issue 5

Author: Zhao Haifeng
Publisher:
Publish Date: 2003-12-01
Features: The main content of this issue includes series of thematic research papers and other regular articles and information. As the core judicial institution of the Council of Europe, the European Court of Human Rights is one of the main research subjects of the Council of Europe law in this journal. The thematic research of this issue focuses on "European Court of Human Rights," consisting of 6 papers. Professor Daelmas-Matthias, after comparing various regional human rights protection international documents, believes that in addition to the differences in stipulations, the fundamental distinction between regional human rights systems lies in the differences in supervision mechanisms. Because the supervision mechanism goes beyond the mere listing and publication of a list of rights, it is a true test of whether countries have the political will to ensure the effectiveness of human rights systems. Since its establishment in 1959 based on the "European Convention on Human Rights" (hereinafter referred to as "the Convention"), the European Court of Human Rights has existed for 44 years. On November 1, 1998, Protocol No. 11 to the Convention came into force, which brought about significant changes to the Convention system. The European Court of Human Rights was transformed from a non-permanent institution into a new permanent court and became the only adjudicating body in the human rights mechanism stipulated by the Convention. The European Court of Human Rights, whether in terms of the breadth of its jurisdiction or the geographical scope it concerns, is unprecedented in the history of international law, with no comparable human rights institutions in other regions of the world, making it a model. The European Court of Human Rights serves as the nerve center of European human rights protection, radiating through the intersection of national legal systems to the 45 countries and 800 million people of the Council of Europe, playing and still playing a crucial role in ensuring the peaceful development of Europe. It has made significant contributions in interpreting and developing the Convention and its protocols, actively and effectively protecting the rights of individuals, non-governmental organizations, and individual groups, and promoting the legislative, executive, and judicial development of member states of the Council of Europe toward the protection of human rights. It is a model of "strong and effective international judicial institutions." Through the court's numerous judgments, a "European public order capable of limiting state sovereignty" has gradually taken shape. Through its supervision of almost all European countries and EU law, the Convention has truly become a "constitutional document regulating European public order," and a "common law" in the field of fundamental rights in Europe. Many authors believe that the court has, in practice, become a court similar to a constitutional court, ensuring the civil and political rights of European citizens. It has not only had a significant impact on member states of the Council of Europe and the EU but also on other legal systems in the world, establishing the image of the Council of Europe as a European human rights organization. Dr. Yang Chengming believes that the progress made by the European human rights institutions, centered around the European Court of Human Rights, in adopting collective measures to protect regional human rights and improve the level of regional human rights protection indicates that in the absence of effective action by global human rights institutions in implementing the "Universal Declaration of Human Rights" and the two International Covenants on Human Rights, establishing regional human rights institutions and adopting regional measures to implement these international human rights documents is undoubtedly an important measure to rescue the international protection of human rights, which is currently at a low ebb. The establishment of the permanent single European Court of Human Rights indicates the direction or trend of future development for regional and global human rights institutions. The establishment of the International Criminal Court can be said to be an important example of this direction and trend. This thematic issue consists of 6 articles, attempting to provide a relatively comprehensive review of the current status, operation, role, development, and its relationship with the Court of Justice of the European Communities from a general framework perspective. The Convention and the judgments of the European Court of Human Rights have had a significant impact on the legislation, judiciary, and even the executive systems of member states. In Zhang Li's article "The Impact of the European Convention on Human Rights and the European Court of Human Rights on French Law," taking France as an example, it elaborates on the methods and channels through which the Convention and the European Court of Human Rights affect domestic law, and analyzes the process of resistance and acceptance of domestic law toward the Convention and the judgments of the court. It can be seen from the article that although France showed hesitation or even resistance in accepting the European human rights norms composed of the Convention and its supplementary protocols and the judgments of the European Court of Human Rights for a period of time, after more than ten years of adjustment, the European-level human rights norms have now become undeniably the primary factor driving the evolution of its domestic human rights legal system (including legislation and judiciary). Although the European Court of Human Rights may seem far away from us, its jurisdiction has already extended to our neighboring countries such as Russia, and the number of Chinese nationals, students, and investors in Europe is increasing. It is not only possible but has already happened that they have filed complaints with the European Court of Human Rights when their rights are violated. Therefore, introducing the procedures of the European Court of Human Rights is also very useful for Chinese readers. Li Bin's article "Litigation Procedures of the European Court of Human Rights" comprehensively introduces the litigation procedures of the European Court of Human Rights based on the new situation after the reform of Protocol No. 11 to the Convention. The reform of the Convention abolished the role of the European Human Rights Commission and the Committee of Ministers of the Council of Europe in deciding human rights complaints and abolished the European Human Rights Commission. However, the function of the Committee of Ministers in supervising the execution of judgments of the European Court of Human Rights is still retained. Moreover, the Committee of Ministers also plays other roles in the protection of human rights by the Council of Europe. Yuan Jin's article "The Role of the Committee of Ministers of the Council of Europe in Human Rights Protection" systematically introduces the organization, functions, and operation of the Committee of Ministers of the Council of Europe, especially its function, measures, and effects in supervising the execution of judgments of the European Court of Human Rights. The European Court of Human Rights has developed a unique legal interpretation method and principles through long-term judicial practice, which have played an important role in specifying the provisions of the Convention and developing them. Zhao Yanqing's article "Interpretation of the European Convention on Human Rights by the European Court of Human Rights" studies the different legal interpretation methods adopted by the European Court of Human Rights (sometimes including the European Human Rights Commission) in interpreting the Convention, combined with relevant judgments of the court. Dr. Yang Chengming is the author of the book "The Regionalization of Human Rights Protection: A Perspective from the European Human Rights Institutions," which is a systematic study of the theory and practice of the European human rights mechanism and its implications for international human rights protection. The article systematically studies the implications of the European human rights mechanism for international human rights protection, especially points out the problems existing in the European human rights mechanism, and proposes thoughtful suggestions for the future development and reform of the European human rights institutions, combined with the latest developments and changes of the European Court of Human Rights. The views he puts forward in the article, such as "sovereign states in the international community should link domestic human rights protection with regional and global protection under certain conditions, place domestic human rights protection under the collective supervision of regional and global human rights institutions, and only by gradually reducing the absoluteness of state sovereignty in international human rights protection can human rights protection move out of the state of fragmentation and regional and global human rights protection can gradually achieve its name and reality," are very insightful. The European human rights protection system, in addition to domestic law protection, relies on both the mechanism of the Convention and the mechanism of EU law at the European level. The Council of Europe, as the most important international organization for protecting human rights in Europe, has established a human rights mechanism that plays a leading role in European human rights protection. However, in recent years, the EU has not only established its own framework for protecting fundamental rights through the Court of Justice of the European Communities but has also strengthened legislative protection and the improvement of the list of rights through legal documents such as treaties, especially the "Charter of Fundamental Rights of the European Union" published in 2000. The role of the EU in European human rights protection has also become increasingly important. This has given rise to the issue of conflict and contradiction between the European Court of Human Rights and the Court of Justice of the European Communities, and even between the two legal systems in Europe. The effectiveness of the two systems in Europe largely depends on the legal certainty brought by their consistency. Zhao Haifeng's article "On the Relationship Between the European Court of Human Rights and the Court of Justice of the European Communities in the Protection of Human Rights" briefly compares the general relationship between the two courts after which it focuses on analyzing the relationship between the two European courts under the framework of EU and Council of Europe law, including the impact of the Convention and the judgments of the European Court of Human Rights on the establishment of the basic system for protecting human rights in the EU by the Court of Justice of the European Communities, the convergence of the two courts, and the existing differences and potential future conflicts in interpreting the Convention, the issue of the EU joining the Convention to maintain the consistency of the European human rights protection system, and the relationship between the two courts after joining. Just like the thematic research on the "European Court of Justice at the Turn of the Century" in the fourth issue, this issue's research on the European Court of Human Rights is also limited to several important issues, and there are still many topics to be explored in the future. For example, the study of the large number of judgments of the European human rights institutions that are still in effect; for example, in terms of mechanisms, the new European Court of Human Rights has handled a large number of cases in recent years, with the number of cases handled in the first two years after its establishment exceeding the total number of cases handled in the previous 39 years, reflecting the high efficiency of the new European human rights mechanism. However, at the same time, the European Court of Human Rights has also been caught in a quagmire of backlogs, with nearly 30,000 complaints still pending, and how to reform to allow the court to maintain the huge feature of accepting individual complaints while improving the actual effectiveness of the human rights protection system is a new challenge facing both the Council of Europe institutions and member states, as well as researchers. Accompanying the special issue on the European Court of Human Rights, this journal also publishes a Chinese translation of the "European Convention on Human Rights" revised by Protocol No. 11. The translation is based on the French text and appropriately references the English text based on the judgments of the European Court of Human Rights and research on the Convention. We hope to provide a good translation here. In the "Papers and Special Articles" section on "European Law," in addition to the completion of Cai Congyan's article "Research on Legal Issues of Joint Ventures in EU Mergers and Acquisitions Law," this journal also publishes Fu Xiaolin's article "Introduction to the European Arbitration Center." The article introduces the situation of the European Arbitration Center, located in Paris and operational since March 2002. The center is of great significance not only in strengthening the competitiveness of the European financial market but also in promoting the development of alternative dispute resolution methods. In addition, this journal also publishes its first English paper: "Concluding an Agreement with the European Union? Analysis of the EU's Legal Personality, Competence, and the Effects of an International Agreement" by Gao Yumei, written during her studies in Europe. The article discusses intriguing issues such as the legal personality, competence of the EU and the European Communities, and the effects of international agreements concluded by the EU and the European Communities. The EU lacks formal legal personality, and the definition of its competence is also highly controversial, which is inconsistent with its increasingly rising status on the international stage. The draft "Constitutional Treaty for the European Union," recently completed, has therefore proposed formally granting legal personality to the EU and clearly defining the division of competence between the EU and its member states. In the "National and Comparative Law" section, Dr. Zhang Lihong's article "The National Judicial Immunity System of Italy" provides a brief systematic review of Italy's legal provisions, case law, and doctrines on national immunity. Jiang Xiaohong's article "Protection and Limitation of the Right to Freedom of Expression in the UK" analyzes the UK's gradual formation of a system of statutes and case law for protecting and limiting the right to freedom of expression, which is a cornerstone of a "democratic society." This includes legal restrictions on traditional media, media management methods, the British Broadcasting Corporation (BBC), and the management of the internet. In addition, the second half of Zhao Yanqing's article "Evidence Bar Theory Under the Influence of Fundamental Rights—Development in German Criminal Procedure Law" is continued from the previous issue. In the study of European law, whether in terms of EU law or European human rights law, Wuhan University is among the leading universities in China. The academic exchange information section of this journal publishes an introduction to the European Studies Center of Wuhan University. In the China-Europe legal exchange project, the China-Europe Intellectual Property Rights Project is highly specialized, and this journal also publishes a report on the research and study of Chinese intellectual property rights professionals sent to Ireland under this project on European and Irish intellectual property law. In the "European Legal Chronicle," two major events are particularly noteworthy: First, the successful progress of EU enlargement. With the Copenhagen Summit in December 2002 declaring the successful conclusion of accession negotiations with 10 Central and Eastern European candidate countries, and especially with the signing of the accession treaty between the 10 countries and the 15 EU member states in Athens, Greece on April 10, 2003, it has basically become a certainty that the EU will complete its fifth and largest-ever eastward expansion by May 1, 2004, with member states expanding to 25, which will have a profound impact on both the EU and the world. Second, the work of the European Constitutional Convention. After 17 months of work, the European Constitutional Convention has drafted a draft "Constitutional Treaty for the European Union," consisting of more than 400 articles divided into four parts, and has submitted it to Italy, the current rotating presidency of the EU, for discussion at the Intergovernmental Conference of Member States scheduled for October 2003. The key parts of the draft have been approved by the EU Summit held on June 10. If the Intergovernmental Conference does not start over, it may be possible to reach an agreement by the end of the year and sign it on May 9, 2004. The draft "Constitutional Treaty for the European Union" proposes many extremely important reform proposals concerning the overall situation of the EU. If it is adopted, the "Constitutional Treaty for the European Union" will replace the current main treaties of the EU, and the entire face of EU law will change. The institutional reforms made by the EU have just come to fruition with the entry into force of the "Nice Treaty" in February 2003, and now new, more fundamental reforms are being.