Human Rights in China and Europe

Table of Contents

1. Human Rights and were they emerged from
1.1. Overview
1.2. The Introduction of International Law and Human Rights in China

2. The Main Human Rights Legislation
2.1. Europe and Austria
2.1.1. Europe
2.1.2. Austria
2.2. China
2.2.1. Rights and Freedoms
2.2.2. Duties
2.2.3. Mixed Rights and Duties

3. Minority Rights
3.1. Overview
3.2. Legal Background
3.3. Equality before the Law
3.3.1. The European and Austrian Laws on Equality
3.3.2. The Chinese Laws on Equality
3.4. Language Privileges of Ethnic Minorities
3.4.1. European and Austrian Laws on Language
3.4.2. Chinese Laws on Language
3.5. Chinese Characteristics
3.5.1. Regional Autonomy
3.5.2. Special Political Privileges
3.5.3. Special Privileges concerning the One Child Policy
3.6. Conclusions

4. The Implementation of Human Rights in Civil Law Relationships
4.1. Overview
4.2. Human Rights Recognized by the General Principles of Civil Law of the People’s Republic of China
4.2.1. Property Rights
4.2.2. Personal Rights
4.3. The Implementation of Human Rights in Civil Relationships
4.3.1. The Vertical Effect of Human Rights
4.3.2. The Horizontal Effect of Human Rights
4.3.3. The Austrian Way
4.3.4. The Chinese Way
4.4. Conclusions

5. Conclusions

6. References

7. Annexes

ACKNOWLEDGEMENTS & PERSONAL STATEMENT

RESUME

1. Human Rights and were they emerged from

1.1. Overview

Human rights emerged from the western culture and philosophy. The basis of the philosophy that finally developed human rights, as we know them today can be traced back to the ancient Greek philosophers. According to the greek theory of natural law, every human being has certain innate rights, which shall not be infringed upon.^[1]

But not only in the western culture and tradition one can find an early philosophical basis. All major cultures want to safeguard human life, dignity, freedom and property. ^[2] This fact does not mean that human rights can be traced back to the traditional main elements of every philosophical school or religion; this is the case with traditional Chinese philosophy and religion.^[3] An example for this worldwide common basis is the Golden Rule. Every religion and many philosophical schools of thought established this rule:^[4]

(1) Hinduism: ‘Do naught to others which, if done to thee, would cause thee pain: this is the sum of duty.’
(2) Judaism: ‘What is hateful to you; do not to your fellow man. That is the entire law; all the rest is commentary.’
(3) Christianity: ‘Do unto others as you would have them do unto you.’
(4) Islam: ‘No one of you is a believer until he desires for his brother that which he desires for himself.’
(5) Buddhism: ‘Hurt not others in ways that you yourself would find hurtful.’
(6) Taoism: ‘The sage has no interest of his own, but regards the interest of the people as his own. He is kind to the kind; he is also kind to the unkind: for virtue is kind.’^[5]
(7) Confucianism: ‘Do not do to others what you do not want them to do to you.’^[6]
(8) Humanism: ‘Humanists acknowledge human interdependence, the need for mutual respect and the kinship of all humanity.’^[7]
(9) Kant’s categorical imperative: ‘Act only according to a maxim by which you can at the same time will that it shall become a general law.’^[8]

The biggest developments in regards of human rights were made in the Age of Enlightenment in Europe. It was the time when individual human beings where recognized as subjects endowed with rights against the society and the state. The individual human being was placed at the centre of the legal and social systems. The state powers where no longer derived from god. There was no longer a divine order, which provided the head of the state with the necessary legitimation to rule the country. This can be traced back to the work of the philosophers introducing a ‘social contract’ as the basis of state and society, as Thomas Hobbes and Jean-Jacques Rousseau for example. This philosophical Age of Enlightenment led to the first modern human rights documents, which arose from the American and French Revolution.^[9]

(1) The American Declaration of Independence (1776): ‘We hold these truths to be self-evident – that all men are created equal; that they are endowed by their creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness. That, to secure these rights, governments are instituted among men deriving their just powers from the consent of the governed.’^[10]
(2) The French Déclaration des droits de l’homme et du citoyen (1789): ‘The aim of every political association is the preservation of the natural and imprescriptibly rights of Man. These rights are Liberty, Property, Safety and Resistance to Oppression.’^[11]

These first documents were dedicated to human rights of the first generation. They guaranteed liberal freedom, which is defined by the passive civil rights of liberal freedoms and democratic freedom, which is defined by the active right to participate in the states politics by active political rights. These classic human rights, the civil and political rights, were the core of the human rights idea during the Age of Enlightenment and they were the main focus of the American and French Revolutions, which were bourgeois revolutions.^[12] Also the latter bourgeois revolutions focused on them, which is reflected by the constitutions and human rights documents of that time.^[13] This dimension of human rights is directed against state interference in private matters also by advocating democracy against dictatorship and against religious authorities.^[14]

The first generation’s rights were strong criticized by socialists as especially Karl Marx, who argued against the exploitation and oppression of the workers.^[15] For him the core civil human right was the right to private property, which is the breeding ground for unrestrained capitalism and stands in the way of all other human rights, especially the right to equality. This led to the precedence of economic, cultural and social rights over civil and political rights. ‘As long as there are homeless people in this world, the liberal protection of one’s home to them means nothing but luxury.’ Therefore the state has to ensure social rights to everyone. The socialist revolution wanted to eliminate the private system and especially private ownership in order to achieve economic equality on the basis of political equality. ^[16] These revolutionaries had a conception of human rights which held all human rights (note: except the right to property) for equally important.^[17] This second generation of human rights found their first way into human rights documents and constitutions in the course of the Russian and other socialist revolutions.^[18]

(1) The Constitution of the Union of Socialist Soviet Republics (1936), articles 118 to 132.^[19]
(2) The Constitution of the People’s Republic of China (1954), articles 85 to 103.^[20]

The third generation of human rights emerged in the course of decolonialization. It was necessary that peoples of the south are granted the same collective solidarity rights than peoples of the north. The main right in this dimension of human right is the right to self-determination, which basically is interpreted as the colonial peoples’ right to independence from the European colonial powers. In the Universal Declaration of Human Rights (1948) they can be found in article 28:^[21] ‘Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.’^[22] Another important right is the right to development.^[23] This third dimension of human rights draws on the concept of universalism of human rights.

After the end of the Cold War and with the progressive globalization the idea of universalism, which already was a basic assumption from the first steps towards human rights and still is now, had been strengthened. The idea was already part of the first human rights documents, but de facto only pertained to a small number of white, male members of the bourgeoisie.

The socialist approach to human rights dismissed the right to remedy against human rights violations by the state, which meant that the human rights guaranteed by socialist constitutions were not enforceable and depended on the good will of the state.

‘All human rights for all’ is the basic principle of the newest development. According to this principle a good mixture of all three generation of human rights is necessary in order to guarantee a well balanced human rights protection. The idea of universalism was already part of the Universal Declaration of Human Rights (1948):^[24]

Preamble: ‘Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world […] The General Assembly proclaims this Universal Declaration as a common standard of achievement for all peoples and all nations […]’

Article 1: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’

The above described concept of the three generations or dimensions of human rights was the basis for discussions on human rights ideology and philosophy during the Cold War. The west focused on civil and political rights and criticized the east and the south for their systematic human rights violations. The east followed the socialist human rights concepts and focused on social, economic and cultural rights. The south battled against colonialism and fought for the right to self-determination. All three generations found its expression in the two UN International Covenants of 1966 (the Covenant of on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights) and in the African Charter on Human and Peoples’ Rights of 1981. Now it has been replaced by the principles of universality, indivisibility, equality and interdependence of human rights. This idea was written down in the Vienna Declaration and Programme of Action (1993), as a result of the Second World Conference on Human Rights:^[25] ‘All human rights are universal, indivisible and interdependent and interrelated.’

The Chinese delegation to the conference had no objections against the universality of human rights but pointed out that the wide scope and the diversity, of human rights should not be neglected.^[26]

An interesting topic to point out is the socialist scholars’ view of human rights. They always emphasize the unity between rights and duties and lay much more importance into the duties, than western scholars do.^[27] This is not only a socialist view; it is also a very Chinese and Asian approach to human rights. In China’s tradition duties always prevailed over individual freedoms, this attitude was strongly promoted by the Confucian elite.^[28] Although one cannot speak of Asian values in overall, due to the diversity of Asian cultures,^[29] there seems to be a quite wide consensus on far more advanced duties in the human rights regime. Even Mahatma Gandhi commented the Universal Declaration of Human Rights by advocating a duty-first concept.^[30] An explanation for this fact could also be found in the big differences between western and Asian political structures, with its authoritarian governments.^[31]

1.2. The Introduction of International Law and Human Rights in China

The first philosophical steps towards human rights in China were taken in the seventeenth century in the transition period from the Ming Dynasty to the Qing Dynasty, when Huang Zongxi and Tang Zhen formulated political theories, which saw the state as a mutual relationship between man and man and therefore breaking with the old dogma of a divine ordinance of heaven.^[32] These thoughts were similar to the teachings of western philosophers, who introduced the social contract theories, like Thomas Hobbes.^[33]

During the 19th century China was forced to make the first steps towards western legal thinking, mainly in the field of international law, but also in regards of human rights. This was a crucial time for the Chinese interpretation of and approach to international law.

In the middle of this century western imperialistic powers forced China to open up. They imposed the so called unequal treaty regime over the country and negotiated extensive privileges for themselves. The first and most known war in the course of these events was the Opium War, which ended with the first unequal treaty, the Treaty of Nanking. This treaty gave Hong Kong to the British Empire.^[34] In the course of the Opium War China failed to apply international law.^[35] As a result of this series of military defeats China initiated a series of reform, which began in the 1860s. In the early period of reforms China adopted western technology, science and trained diplomatic personnel.^[36] Many Chinese students were sent studying abroad. As a result one can still see the enormous influence of German law in the contemporary Chinese legal system. In 1864 W.A.P. Martin finished translating Wheaton’s Elements of International Law and it was introduced to the court. Though it had already been successfully applied to an international crisis, when Prussia confiscated three Danish ships in Chinese waters, which had to be returned due to the neutral status of China, western powers had no intention to respect international law in their intercourse with China.^[37] After the defeat in the Sino-Japanese War of 1894^[38], China not only adopted western technology and science, it also began to think about the adoption of western institutions. These thoughts ended in 1898, when empress Dowanger rejected the ‘Hundred Days of Reform’ program.^[39] As a result of both, the lack of recognition of China on international level as an equal partner of the western powers and the lack of reforms, in early June 1900 the Boxer Uprising started and finally war was declared by the empress on June 21st.^[40] In the course of this war, which was waged under the flag of international law and humanity by the western powers, the contrary of the claimed happened. Foreign troops committed war crimes. As the German general Paul von Höpfner wrote:^[41]

‘We massacred everybody we could catch hold of. We spared neither woman nor children […] on that day I resembled a butcher rather than a German soldier.’

After the Boxers’ War the next test of international law was the Russian-Japanese War in 1905. China declared itself neutral, which had no effect on both countries in war. Major battles were fought on neutral Chinese territory.^[42]

These early events of intrusion into China were the roots for China to focus on its sovereignty and its awareness of the importance of the concept of sovereignty.

2. The Main Human Rights Legislation

2.1. Europe and Austria

2.1.1. Europe

The main human rights legislation body on European international level is the Council of Europe. Although there is also the OSCE, the former CSCE, which opened up former communist countries in Eastern Europe after the Helsinki Conference by enacting the Helsinki Final Act in August 1975,^[43] I will only give a brief overview over the OSCE and focus on the European Convention on Human Rights in the body of this paper.

2.1.1.1. A Brief Overview of the OSCE

The CSCE has gradually developed in the course of the Cold War; its main purpose was to facilitate the cooperation between western European countries and the communist states in Europe. In 1975 the above mentioned ‘Helsinki Final Act’ provided the foundation for recommendations. These recommendations are commonly called the three baskets of the Helsinki process. The Third basket is referred to as the humanitarian basket, so human rights as part of the ten fundamental principles of the CSCE formed this basket. ^[44] After 1975 in eastern and central European countries so called Helsinki Committees were formed due to this basket.^[45] The final step towards the end of the Cold War and the end of the Iron Curtain was the enacting of the ‘Vienna Concluding Document’ as endpoint of the Third CSCE Follow-Up Meeting in Vienna (from 1986 to 1989) in 1989.^[46]

Beginning as a lose conference the CSCE became its OSCE structures in the Budapest Review Conference in 1994 with the ‘Declaration Towards a Genuine Partnership in a New Era’.^[47]

The OSCE member states obliged themselves to human rights and fundamental freedoms, they shall obey the rule of law, they build, strengthen and protect democratic institutions in order to protect the democratic principle and promote tolerance. The Human Dimension of the OSCE especially consist of:^[48]

(1) Anti Trafficking: The fight against human, small arms and drug trafficking.
(2) Democratization: The OSCE assists in building up democratic institutions in member states in order to promote democracy.
(3) Education: The OSCE founded educational programmes as a part of its efforts in conflict prevention and post-conflict rehabilitation.
(4) Elections: The Organization offers assistance in the course of election, which is also part of the democratization efforts.
(5) Gender Equality: The OSCE advocates equal opportunities for women and men and supports the integration of gender equality in policies and practices.
(6) Human Rights: The focus in the field of human rights is on freedom of movement and religion the prevention of torture and, as we have seen, on the prevention of human trafficking.
(7) Media Freedom: In order to prevent infringements on the freedom of expression the OSCE observes the development of the media in its member states.
(8) Minority Rights: As one could see in the early 1990s in former Yugoslavia, ethnic conflicts are the most common source of armed conflicts in Europe. Therefore the OSCE tries to identify and monitors ethnic tensions closely and sets standards for minority rights.
(9) Rule of Law: The concept of rule of law is an integral part of the organizations human rights activities. It focuses not only on proper legal frameworks, but also on the full acceptance of human dignity.
(10) Tolerance and Non-Discrimination: The OSCE is also engaged in the fight against racism, xenophobia, anti-Semitism and discrimination.

Also interesting to mention is that Albania was the only European country not taking part in the CSCE process, due to its close relationship with China.^[49]

2.1.1.2. European Union

The European Union is in a stage of change. Due to the failed attempt to enact the Constitution of Europe the Treaty of Lisbon was elaborated on the basis of the failed constitution. The ratification process of this new fundamental treaty of the European Union is not yet finished and it is not sure whether it is possible to finish it, because of a negative referendum in Ireland. Both the Constitution of Europe and the Treaty of Lisbon contain the European Union Charter of Fundamental Rights as the future main legal source of human rights for the European Union.^[50] The then legally binding charter not only consists of fundamental rights and freedoms of the first generation of human rights, but also of economic and social rights and it will also define the accession of the EU to the European Convention on Human Rights as a major goal.^[51] Also the charter rights base on the European Convention on Human Rights, as far as the charter rights does not modernize rights and introduce new rights, which have not been recognized by the ECHR.^[52]

The European Court of Justice now uses the European Union Charter of Fundamental Rights as a help to determine the will of the legislator, although it cannot be basis of a decision at this time due to its lack of effectiveness.^[53]

The effective legal basis for the European Union is the Treaty on the European Union and the Treaty establishing the European Community, as amended by the Treaty of Nice.^[54] These treaties hardly ever refer to human rights, although it is an important topic for the European Union.

The European Union is founded on the basis ‘of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States’, according to article 6/1 of the EU Treaty.^[55] According to article 6/2 of the European Union Treaty the European Union ‘ shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on the 4th of November 1950.’ The European Court of Justice always pointed out in its decisions that the European Union is obliged to the human rights provisions, which can be found in the European Convention on Human Rights and based on the constitutional traditions common to the member states.^[56] Correspondingly according to article 49 of the European Union Treaty^[57], the observance of human rights standards is one criteria for the accession of the European Union.^[58]

In pursuance of the logic of article 49 the European Union pays attention to the human rights in its external relations especially in^[59]

(1) the Common Foreign and Security Policy (CFSP),
(2) human rights and development cooperation,
(3) the Lomé Conventions and the Cotonou Agreement and
(4) human rights clauses in bilateral treaties.

This human rights policy, especially the focus on human rights in development cooperation, is not always supporting European interests. This can be seen in Africa, where many states tend to a closer cooperation with China, which does not demand high human rights standards. Another problem is the lack of awareness of the importance of Africa in European policy.^[60]

2.1.1.3. Council of Europe

The European Convention on Human Rights, which is the core document of the Council of Europe, is also the most important human rights document in Europe. It was signed in Rome on November 4th, 1950 and after the necessary ratification entered into force on September 3rd, 1953. The rights in the ECHR could not be modified in the original text, therefore several additional protocols where enacted.^[61] Other conventions under the treaty regime of the Council of Europe are the European Social Charter and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment for example.^[62]

The legal remedies provided by the European Convention of Human Rights have to be highlighted. The European Court of Human Rights is an independent international court, enabled to handle individual complaints and its judgments are final and binding. This is the real strength of the Council of Europe.^[63] The only comparable system is provided by the Organization of American States. Under its regime individual complaints against, in the American Convention on Human Rights participating states are possible and its procedure is based on the ECHR procedure used until 1998. The American Court of Human Rights is not as effective as the European Court of Human Rights, as it rendered only 139 judgments since its establishment in the year 1979 to 2006^[64] and the European Court of Human Rights has issued 10356 judgments since 1955.^[65]

Another important feature, which can be found in the arguments used in the judgments of the European Court of Human Rights, is that every case has to be seen in the light of the country’s constitutional tradition against which it is brought to court. For example the Turkish ban of the Islamic headscarf in universities and other institutions of higher education is not an infringement of article 9 of the ECHR^[66]. The European Court of Human Rights argued with the constitutional history of turkey to determine whether it is a violation or not.^[67] Due to the different interpretation of secularism in Austria and Turkey, a hypothetical ban of the Islamic headscarf in Austria is likely to be a violation of article 9 ECHR.^[68]

The European Convention on Human Rights can also be applicable to European Union law, even primary law, acts of EU organs and acts of EU member states in execution of EU law, because the member states of the European Council cannot refuse their accountability to human rights violations by giving away state competences to the EU.^[69] Once more it is necessary to note that all members of the EU are members of the European Council. The European Court of Human Rights shares that opinion and added that the EU sufficiently protects fundamental rights, ^[70] but ‘the interest of international cooperation would be outweighed by the Convention's role as a “constitutional instrument of European public order” in the field of human rights’.^[71]

[...]

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^[1] On the Origin of Human Rights, Huang Lie, from Constitutionalism and China, Li Buyun (ed.), Law Press China 2006, p. 380

^[2] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 9

^[3] China and Human Rights, Gerd Kaminski, from China’s Traditions: Wings or Shackles for China’s Modernization?, Gerd Kaminski (ed.), ÖGCF 2003, p. 86

^[4] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 9

^[5] http://www.religioustolerance.org/reciproc.htm, April 11th, 2009

^[6] http://www.religioustolerance.org/reciproc.htm, April 11th, 2009

^[7] http://www.religioustolerance.org/reciproc.htm, April 11th, 2009

^[8] The History of Western Philosophy, Bertrand Russell, Simon & Schuster 1972, p. 710f

^[9] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 9

^[10] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 10

^[11] http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/cst2.pdf, April 11th, 2009

^[12] Historical Development of Human Rights System and Theory, Huang Lie, from Constitutionalism and China, Li Buyun (ed.), Law Press China 2006, p. 357

^[13] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 10

^[14] Basic Theory and Practice of Socialist Human Rights, Huang Lie, from Constitutionalism and China, Li Buyun (ed.), Law Press China 2006, p. 333

^[15] Historical Development of Human Rights System and Theory, Huang Lie, from Constitutionalism and China, Li Buyun (ed.), Law Press China 2006, p. 358

^[16] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 11

^[17] Basic Theory and Practice of Socialist Human Rights, Huang Lie, from Constitutionalism and China, Li Buyun (ed.), Law Press China 2006, p. 342f

^[18] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 11

^[19] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 13

^[20] http://www.verfassungen.net/rc/verf54-i.htm, April 11th, 2009

^[21] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 24

^[22] http://www.un.org/Overview/rights.html#a28, April 11th, 2009

^[23] Constitutional Law in China, Lin Feng, Sweet & Maxwell Asia 2000, p. 255

^[24] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 12ff

^[25] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 25ff

^[26] On the University and Diversity of Human Rights, Huang Lie, from Constitutionalism and China, Li Buyun (ed.), Law Press China 2006, p. 404

^[27] Basic Theory and Practice of Socialist Human Rights, Huang Lie, from Constitutionalism and China, Li Buyun (ed.), Law Press China 2006, p. 347f

^[28] Menschenrechte in China, Gerd Kaminski, Ludwig Boltzmann Institut für China- und Südostasienforschung 1978, p. 16

^[29] Human Rights and Asian Values, Amartya Sen, The New Republic, July 14th to July 21st, 1997

can be found at: http://www.mtholyoke.edu/acad/intrel/sen.htm, April 14th, 2009

^[30] http://www.hurights.or.jp/asia-pacific/042/05.htm, April 14th, 2009

^[31] http://www.mtholyoke.edu/acad/intrel/sen.htm, April 15th, 2009

^[32] An Intellectual History of China, He Zhaowu, Bu Jinzhi, Tang Yuyuan and Sun Kaitai, Foreign Languages Press 2008, p. 550

^[33] Thomas Hobbes – Brauchen wir eine Renaissance der Aufklärung?: Rechtsphilosophische Grundlegungen, Ludwig Hetzel, Grin Verlag 2008, p. 15f

^[34] Historiography in English for History Majors, Qunyan Press 2008, p. 189

^[35] China and Human Rights, Gerd Kaminski, from China’s Traditions: Wings or Shackles for China’s Modernization?, Gerd Kaminski (ed.), ÖGCF 2003, p. 98

^[36] Historiography in English for History Majors, Qunyan Press 2008, p. 197f

^[37] China and Human Rights, Gerd Kaminski, from China’s Traditions: Wings or Shackles for China’s Modernization?, Gerd Kaminski (ed.), ÖGCF 2003, p. 98f

^[38] Historiography in English for History Majors, Qunyan Press 2008, p. 202

^[39] A History of Chinese an European Civilizations, Sichuan University Press 2007, p. 216

^[40] A History of Chinese an European Civilizations, Sichuan University Press 2007, p. 212

^[41] China and Human Rights, Gerd Kaminski, from China’s Traditions: Wings or Shackles for China’s Modernization?, Gerd Kaminski (ed.), ÖGCF 2003, p. 100

^[42] China and Human Rights, Gerd Kaminski, from China’s Traditions: Wings or Shackles for China’s Modernization?, Gerd Kaminski (ed.), ÖGCF 2003, p. 100

^[43] http://www.osce.org/item/15661.html, April 14th, 2009

^[44] http://www.osce.org/about/19298.html, April 14th, 2009

^[45] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 215

^[46] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 215f

^[47] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 217

^[48] http://www.osce.org/activities/18805.html, April 14th, 2009

^[49] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 215

^[50] http://www.auswaertiges-amt.de/diplo/de/Europa/LissabonVertrag/Reformvertrag.html, April 14th, 2009

^[51] The Constitution for Europe – A Legal Analysis, Jean-Claude Piris, Cambridge University Press 2006, p. 134

^[52] The Constitution for Europe – A Legal Analysis, Jean-Claude Piris, Cambridge University Press 2006, p. 135

^[53] http://www.auswaertiges-amt.de/diplo/de/Europa/LissabonVertrag/071212-grundrechte.html, April 10th, 2009

^[54] The Constitution for Europe – A Legal Analysis, Jean-Claude Piris, Cambridge University Press 2006, p. 3f

^[55] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 238

^[56] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 239

^[57] Article 49 European Union Treaty

Any European State which respects the principles set out in Article 6(1) may apply to become a member of the Union. […]

^[58] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 238

^[59] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 242

^[60] Waffen, Öl, dreckige Deals - wie China den Westen aus Afrika drängt, Hasnain Kazim, Spiegel January 16th, 2007

http://www.spiegel.de/wirtschaft/0,1518,458968,00.html, April 16th, 2009

^[61] Europäische Menschenrechtskonvention, Christoph Grabenwarter, C.H.Beck 2003, p. 2ff

^[62] A full list of treaties can be found on the Council of Europe website: http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?CM=8&CL=ENG, April 15th, 2009

^[63] Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 168

^[64] Inter-American Court of Human Rights – Annual Report 2006, p. 61 as seen on http://www1.umn.edu/humanrts/iachr/Annuals/annual-06.pdf, April 16th, 2009

^[65] The number of judgments has been calculated according to ‘Introduction to the International Human Rights Regime, Manfred Nowak, Martinus Nijhoff Publishers 2003, p. 169’ in addition to ‘The European Court of Human Rights – Some Facts and Figures 1998 to 2008, p. 5, as seen on http://www.echr.coe.int/NR/rdonlyres/65172EB7-DE1C-4BB8-93B1-B28676C2C844/0/FactsAndFiguresENG10ansNov.pdf, April 16th, 2009

^[66] Article 9/1 ECHR

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

^[67] Case of Leyla Şahin v. Turkey, November 10th, 2005 (Application no. 44774/98):

The Turkish Republic was founded on the principle that the State should be secular (laik).

^[68] In Austria the general concept of secularism, which is determined by friendly and inviting neutrality, is not as strict as under the Turkish laicism. Compare with: Religionsrecht im Überblick, Richard Potz and Brigitte Schinkele, WUV 2007, p. 15f

^[69] Europäische Menschenrechtskonvention, Christoph Grabenwarter, C.H.Beck 2003, p. 32f

^[70] The Constitution for Europe – A Legal Analysis, Jean-Claude Piris, Cambridge University Press 2006, p. 134

^[71] Case of Bosphorus Hava Yollari Turizm Ve Ticarat Anonim Şirketi v. Ireland, June 30th, 2005 (Application no. 45036/98):

In the Court's view, State action taken in compliance with such legal obligations [according to EU law] is justified as long as the relevant organisation [the European Union] is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides […]. By “equivalent” the Court means “comparable”; any requirement that the organisation's protection be “identical” could run counter to the interest of international cooperation pursued […]. However, any such finding of equivalence could not be final and would be susceptible to review in the light of any relevant change in fundamental rights protection.
If such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation. However, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international cooperation would be outweighed by the Convention's role as a “constitutional instrument of European public order” in the field of human rights […].