Introduction to Human Rights Week 5: Human Rights obligations V. New perspectives Within the framework of the study of Human Rights legal effects, we must now have a look at a few new perspectives generated by these rights. One of the contemporary Human Rights characteristics is that they are constantly changing. There are two explanations for this phenomenon. First explanation: the large number of treaties and international conventions which guarantee Human Rights and whose interpretation often offers important thoughts, both at the universal and regional levels. Second explanation: Human Rights self-government. As already mentioned, Human Rights gradually grew away from the national conception of fundamental rights. They are now guaranteed at the level of international society. Indeed, many international organizations have enshrined them. Thanks to that, they acquired a form of self-government which sometimes distinguishes them quite radically from fundamental rights, from which they historically derive. Besides, Human Rights influence fundamental rights with imported concepts which developed at the international level and which influence the national conception of fundamental rights. Many new perspectives appeared during this evolution. We will mostly mention two of them. First, the relations that Human Rights have with international organizations. Then, there is the possible invocation of Human Rights within the scope of activities exercised by multinational or transnational societies. As we already saw, Human Rights maintain close ties with international organizations. Indeed, these universal and regional organizations brought them to life through treaties and international conventions which provide them with legal effects. But another issue arises today. This issue derives a little bit from Human Rights origins. If international organizations generated Human Rights to States that have to respect them, are these international organizations bound by the respect of Human Rights that they created? At the beginning, Human Rights were conceived to apply to States and to limit the exercise of their powers. The aim was to avoid any drift thanks to the establishing of a minimum standard of protection. This view is still valid today but it is not completely exclusive anymore. Indeed, it is not impossible for Human Rights to also apply to international organizations. Let me take an example. The European Convention on Human Rights is open for signature by State members of the Council of Europe. Nevertheless, it also contains a clause in Article 56, paragraph 2 which provides the possibility for the European Union to adhere to this Convention. This means that, in the end, the European Union is meant to become a member of the European Convention on Human Rights. For this reason, the norms and the rules that the European Union adopts in the exercise of its competences are subjected to the European Convention on Human Rights. Furthermore, through the acquiescence of the activities of the Union to the jurisdiction of the European Court of Human Rights, European Union law is liable to the control exercised by the European Court of Human Rights. It is interesting to have a look at the direction that Human Rights took within the scope of the European Union. This evolution is a little bit similar to the one that we mentioned in the case of the evolution of fundamental rights or of Human Rights at the level of other international organizations. First step: some rights were proclaimed in the Nice Charter - also called the Charter of fundamental rights of the European Union - in December 2000. Second step: the Charter was integrated and bound in the Treaty of Lisbon on 13 December 2007. The Charter of fundamental rights of the European Union is now an integral part of European Union law's primary sources. For this reason, the member States of the Union are subjected to the European Union's fundamental rights via the Treaty of Lisbon. Furthermore, the European Union is subjected to the fundamental rights that appear in the Treaty of Lisbon. This treaty is used as a constitution of the European Union. Third step: European judges ownership. On the one hand, Union judges. On the other hand, judges of the European Court of Human Rights. They all aim at ensuring respect for the rights guaranteed both by the Charter and by the European Convention on Human Rights. Please note that, in the European Union, we no longer talk about Human Rights but about fundamental rights. I think that this example is quite significant. Some international organizations have so deeply integrated Human Rights that these rights are not part of international law anymore. The European Union has indisputably played a pioneering role in this. The rights are integrated into a kind of supranational constitution in which they are considered as domestic fundamental rights. That is undoubtedly an interesting perspective. Let us take a second example to illustrate the existing relations between Human Rights effects and the activities of international organization: the interesting case of Nada v. Switzerland. The judgment was given by the Grand Chamber of the European Court of Human Rights on 12 September 2012. This case concerns the measures taken by the Swiss authorities in order to forbid a foreigner to leave the Italian enclave of Campione, on the Tessinois territory - so, in the Italian part of Switzerland - to enter the Swiss territory. In other words, the person in question was forced to stay in the Campione enclave. He could not enter the Swiss territory which surrounds the Italian territory of 1.6 square kilometre. In this case, the Swiss authorities justified these measures by saying that they had been adopted by the United Nations Security Council within the fight against terrorism. As it happens, the United Nations right took precedence over national law and Human Rights protection. The Nada case is quite complicated. I am just going to summarize it. The European Court of Human Rights considered that the counter-terrorism measures adopted by the United Nations and integrated into Swiss law, came under national law. For this reason, the measures should balance respect for the guarantees of the European Convention on Human Rights, such as respect for private and family life, within the meaning of Article 8 of the Convention. In this case, the European Court of Human Rights considered that the restrictive measures forced on the complainant were disproportionate. Indeed, in the meantime, he was acquitted because he could prove that he had no relation to any terrorist organization subjected by the adopted measures of the United Nations Security Council. It is interesting to note that the same kind of issue arose for someone else, shortly before this case. A decision issued by the Court of Justice of the European Union came to the same conclusion, even though it was based on the protection of fundamental rights. This is an interesting perspective. We see that Human Rights have now greatly exceeded the national frame. Nowadays, they invest the activities developed by some international organizations which have to submit to the respect of the rights that they have contributed to. The second perspective that we would like to mention in this course concerns the legal reports between Human Rights and multinational firms. A statement can be made both at the national and international levels: threats to Human Rights do not exclusively come from the State and its bodies. As already mentioned, threats can also come from other organizations, such as international organizations. Threats can also come from private companies, such as multinational firms whose economic power can be huge. The power is all the greater in a globalized world which more and more aims at transcending nation-states' boundaries. Let us take two examples. first example: multinational companies involved in environmental disasters. Second example: the case of firms specialized in the security of goods and persons. In certain regions of the world, these firms can substitute for tasks until now accomplished by the State and exercise a power as far as threats are concerned for the respect and the protection of Human Rights, in the sense of what we have seen today. We also saw that, at the national level, it is possible, in certain circumstances, for Human Rights to display effects in the relations between people. Question: Why should it not be the same for national and multinational companies? It must be noted that these companies have understood what they can get by showing an interest in respecting and protecting Human Rights. They can for example get a guarantee of quality, legitimacy and respectability by developing standards of self-governance aimed at increasing their credibility and their legitimacy in order to protect their employees but also in order to gain the trust of their customers. These phenomenon have been increasing in recent years. As far as we know, there is no established rule in this area yet. As it is often the case for Human Rights, we think that there is almost no doubt that these perspectives will grow in importance in the years to come.
