9789176787779

An Introduction to the

European Convention on

Human Rights 6th edition

Iain Cameron

IUSTUS FÖRLAG

10-78 Iustus Cameron 21 dec.indd 3

10-12-21 11.11.10

© Författaren och Iustus Förlag AB, 6 upplagan, Uppsala 2011 ISBN: 978-91-7678-777-9 Omslag: Förenade Ord, Uppsala Sättning: Harnäs Text & Grafisk Form Tryck: Edita, Västerås 2011 Förlagets adress: Box 1994, 751 49 Uppsala Tfn: 018-65 03 30, fax: 018-69 30 99 Webbadress: www.iustus.se, e-post: kundtjanst@iustus.se

10-78 Iustus Cameron 21 dec.indd 4

10-12-21 11.11.10

Table of Contents Preface 5 Table of Cases 11 List of Abbreviations 19 1 Introduction 21 1.1 Overview 21 1.2 A Few Words About International Law 23 1.2.1 The Nature and Function of International Law 23 1.2.2 The Individual as a Subject of International Law: the Origins of International Human Rights Law 24 1.2.3 The Relationship between National and International Law 30 1.2.4 Treaties 33 2 The Origins and Structure of the Convention System 35 2.1 An Overview of the Protection of Human Rights in Europe: The Council of Europe and the OSCE 35 2.2 The Drafting and Structure of the Convention 41 2.3 An Outline of the Old System and How It Worked 42 2.4 The Changes Made by Protocols 11 and 14 and the Threat to the Convention System 44 2.5 The Nature of the Obligation in Article 1 47 3 Composition, Structure and Functions of the Court 53 3.1 Composition and Structure of the Court 53 3.2 Procedure of the Court 55 3.2.1 In General 55 3.2.2 More on Admissibility 60 3.2.3 More on the Competence and Powers of the Court 65

7

10-78 Iustus Cameron 21 dec.indd 7

10-12-21 11.11.10

3.3 Inter-State Disputes 67 3.4 Implementation of the Court’s Judgment 67 3.5 The Role of the Convention in the Protection of Human Rights in Europe 70 3.6 Interpretative Methods Applied by the Court 75 4 The Substantive Rights 78 4.1 Generally 78 4.2 Article 2, Protocols 6 and 13: The Right to Life and the Death Penalty 79 4.3 Article 3: Freedom from Torture, Inhuman or Degrading Treatment 81 4.4 Article 4: Freedom from Slavery, Servitude and Forced Labour 86 4.5 Article 5: The Right to Liberty and Security of Person 87 4.6 Article 6: Right to a Fair Trial 94 4.6.1 Generally 94 4.6.2 Access to Court/civil rights and obligations 95 4.6.3 Criminal Charge 100 4.6.4 Reasonable time 101 4.6.5 Independent/impartial courts 102 4.6.6 Public Hearing 104 4.6.7 Equality of Arms, Illegally Obtained Evidence and ­Anonymous Witnesses 105 4.7 Article 7: Freedom from Retroactive Criminal Law 106 4.8 Articles 8–11: Generally 108 4.9 Accordance with the Law 110 4.10 Necessary in a Democratic Society: the Margin of Appreciation 111 4.11 Article 8: Right to Respect for Private and ­Family Life, Home and Correspondence 115 4.11.1 Generally 115 4.11.2 Private Life 116 4.11.3 Family Life 118 4.11.4 Respect for Home and Correspondence 122 4.12 Article 9: Freedom of Thought, Conscience and Religion 124 4.13 Article 10: Freedom of Expression 127

8

10-78 Iustus Cameron 21 dec.indd 8

10-12-21 11.11.10

4.14 Article 11: Freedom of Assembly and A ­ ssociation 134 4.15 Article 12: Right to Marry and Found a Family 137 4.16 Protocol 1, Article 1: Protection of Property 138 4.17 Protocol 1, Article 2: Freedom of Education 143 4.18 Protocol 1, Article 3: Free Elections 145 4.19 Rights under Protocol 4 147 4.20 Rights under Protocol 7 149 5 General Provisions Affecting Convention Rights 153 5.1 Generally 153 5.2 Article 13: Right to an Effective Remedy Before a National Authority 153 5.3 Article 14 and Protocol 12: Freedom from ­ Discrimination 156 5.4 Article 15: Suspension of Convention Rights 160 5.5 Article 16: Restrictions on the Political Activities of Aliens 163 5.6 Article 17: Prohibition of Abuse of Rights 163 5.7 Article 18: Prohibition of Abuse of Power 164 5.8 Article 57: Reservations 165 6 The Convention and the EU 167 6.1 Introduction: the Convention and General Principles 167 6.2 The Charter of Fundamental Rights 171 6.3 Problems involved in the present situation and the EU’s solutions 174 6.4 The Accession Process 179 7 The Convention and Swedish Law 181 7.1 The Legal Status of the Convention and the Approach of the Courts before 1995 181 7.2 The Incorporation of the Convention in Swedish Law 184 7.2.1 The Background to the Incorporation of the Convention 184 7.2.2 The Convention and Norm Conflicts 186 7.2.3 Constitutional review, the Convention and Swedish ­membership of the EU 191 7.3 National Remedies for Convention Violations 192

9

10-78 Iustus Cameron 21 dec.indd 9

10-12-21 11.11.10

Appendix 1: An Overview of the Substantive Rights 196 Appendix 2: Convention for the protection of human rights and fundamental freedoms 198 Appendix 3: Ordlista 217 Appendix 4: Research Sources 219 Appendix 5: Select Bibliography 223 Index 230

10

10-78 Iustus Cameron 21 dec.indd 10

10-12-21 11.11.10

Table of Cases 1. European Court of Human Rights Abdulaziz, Cabales and Balkandali v. UK 114 ADT v. UK 115 AGOSI v. UK 139, 141 Ahmed and others v. UK 128 Akdivar and others v. Turkey 63 Akkus v. Turkey 142 Aksoy v. Turkey 82, 162 Aktas v. Turkey 60, 80 Al-Adsani v. UK 97 Al-Dabbagh v. Sweden 150 Allan Jacobsson (no. 2) v.

Sweden 99, 140 Allan Jacobsson v. Sweden 97 Allenet de Ribemont v. France 67 Al-Nashif v. Bulgaria 155 Al-Saadoon and Mufdhi v. UK 79 Alzery v. Sweden 85 Amann v. Switzerland 124 Amuur v. France 88 Anheuser Busch Inc.v Portugal 139 Ann-Marie Andersson v. Sweden 97 Appel-Irrgang and others v.

Germany 144 Artico v. Italy 76 Assanidzé v. Georgia 68 Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria 124 Aydin Tatlav v. Turkey 130 Aydin v. Turkey 82, 162 Aziz v. Cyprus 147 B and L v. UK 138 B. v. France 115 Balmer-Schafroth and others v.

Switzerland 97 Bankovic et al. v. Belgium et al 51 Barberá, Messegué and Jabardo v.

Spain 68 Barfod v. Denmark 131

Barthold v. FRG 131 Baumann v. Austria 66 Bayatyan v. Armenia 126 Beck v. Norway 62, 194 Bedenoun v. France 101 Beer and Regan v. Germany 174 Behrami v. France 51 Belgian Linguistics case 109, 143,

158 Belilos v. Switzerland 165 Ben El Mahi and others v.

Denmark 130 Benthem v. Netherlands 96 Beyeler v. Italy 139 Bladet Tromso and Stenass v.

Norway 127 Blečič v. Croatia 52 Borgers v. Belgium 105 Boso v. Italy 81 Bosphorus Hava Yollari Turizm ve Ticaret AS, v. Ireland 51, 175,

177, 178 Botazzi v. Italy 101 Botta v. Italy 116 Bouamar v. Belgium 90 Boultif v. Switzerland 121 Bowman v. UK 131, 146 Boyle and Rice v. UK 122 Brannigan and McBride v. UK 162 Brogan and others v. UK 92, 162 Broniowski v. Poland 69 Burden and Burden v. UK 155, 159 Burdov v. Russia 69 Bykov v. Russia 105, 124 Bäck v. Finland 49 Calvelli and Ciglio v. Italy 80 Campbell and Cosans v. UK 144 Campbell and Fell v. UK 102 Canae Catholic Church v.

Greece 160

11

10-78 Iustus Cameron 21 dec.indd 11

10-12-21 11.11.10

Cantioni v. France 106, 111 Casado Coca v. Spain 131 Castells v. Spain 94, 131 Cha’are Shalom ve Tsedek v.

France 125 Chahal v. UK 85 Chorherr v. Austria 165 Christine Goodwin v. UK 76, 114,

138 Ciraklar v. Turkey 102 Comingersoll S.A. v. Portugal 50 Communist Party of Turkey and others v. Turkey 135 Compare Verenigning Weekblad Bluf v. Netherlands 129 Conka v. Belgium 149 Corigliano v. Italy 100 Cossey v. UK 54, 115 Costello-Roberts v. UK 49, 83,

144 C.R. v. UK 106 Cruz Varas v. Sweden 66 Cumpănă and Mazăre v. Romania 132 D. v. UK 85 Danderyds kommun v. Sweden 48 De Cubber v. Belgium 58 de Haes and Gijsels v. Belgium 131 Dink v. Turkey 127 Dogru v. France 126 Domenichini v. Italy 111, 122 Doorson v. Netherlands 105 Dudgeon v. UK 114, 115 EB v. France 119, 157,

159 Eckle v. Germany 62 Ekbatani v. Sweden 104 Elci and others v. Turkey 82 Elli Poluhas dödsbo v. Sweden 118 Elshoz v. Germany 121 Enerji Yapı-Yol Sen v. Turkey 136 Engel and others v. Netherlands 100,

128, 158 Enhorn v. Sweden 91 Erdogu and Ince v. Turkey 106, 111 Erika and Volker Lenz v.

Germany and the Other States of the European Communities 171 Eriksson v. Sweden 120 Evaldsson and others v. Sweden 68, 137 Ezelin v. France 134 F. v. Switzerland 114, 138

Federacion Nacionalist Canaria v.

Spain 145 Fejde v. Sweden 104 Ferrazzini v. Italy 98 Folgerø and Others v. Norway 144 Former King of Greece and Others v. Greece 142 Fox, Campbell and Hartley v.

UK 90 Franz Fischer v. Austria 151 Fredin v. Sweden 143 Frette v. France 119, 138 Frödinge Grus & Åkeri AB v.

Sweden 101 Fägerskiöld v. Sweden 122 Gardel v. France 107 Gaskin v. UK 116 Gasus Dosier- und Fördertecknik GmbH v. The Netherlands 141 Gaygusuz v. Austria 160 Gillon and Quinton v. UK 88 Gitones and others v. Greece 146 Glasenapp v. Germany 128 Glass v. UK 81 Golder v. UK 74, 76,

97, 109 Gorzelik v. Poland 135 Grande Oriente d’Italia di Palazzo Giustiniani v. Italy, 137 Grigoriades v. Greece 128 Groppera Radio v. Switzerland 111, 129 Guerra and others v. Italy 114, 122 Guja v. Moldova 132 Gündüz v. Turkey 133 Gustafsson v. Sweden 49, 66,

136 Guzzardi v. Italy 88 Gäfgen v. Germany 105 Haas v. Germany 105 Handyside v. UK 111, 113,

114 Härginen v. Finland 148 Hasan and Chaush v. Bulgaria 125 Hatton v. UK 122, 155 Hauschildt v. Denmark 103 Helmers v. Sweden 104 Herri Batasuna and Batasuna v.

Spain 136 Hertel v. Switzerland 132 Hilbe v. Liecthenstein 147 Hilda Hafsteinsdóttir v. Iceland 90

12

10-78 Iustus Cameron 21 dec.indd 12

10-12-21 11.11.11

Hirst v. UK 114, 147 HLR v. France 85 Hoffman v. Austria 119, 125,

152 Holm v. Sweden 103 Huber v. Switzerland 92 Huvig v. France 111, 123 Ilaşcu and others v. Moldova and Russia 51 Informationsverein Lentia and others v. Austria 129 Ionescu v. Romania 65 Iordachi and Others v.

Moldova 124 Ireland v. UK 88, 162 Isayeva v. Russia 79, 160 Issa and others v. Turkey 51 Ivanov v. Russia 164 J J.M. v. UK 160 Jalloh v. Germany 83 James and others v. UK 141, 159 Jan Åke Andersson v. Sweden 104 Janosevic v. Sweden 95 Jersild v. Denmark 133 Johnston and others v. Ireland 63, 75,

138 K and T v. Finland 58, 121 Kadubec v. Slovakia 101 Kalaç v. Turkey 125 Kalashnikov v. Russia 84 Karakó v. Hungary 117 Karatas v. Turkey 129 Karlheinz Schmidt v. Germany 86 Karner v. Austria 60 Kellerman v. Sweden 103 Kemevuako v. Netherlands 56 Kemmache v. France 88 Khan v. UK 105 Khurshid Mustafa and Tarzibachi v. Sweden 49, 128 Kjeldsen, et al. v. Denmark 144 Klass v. Germany 123, 153,

155 Kokkinakis v. Greece 106, 125 Kolk and Kislyiy v. Estonia 108 Kononov v. Latvia 106, 108 Konrad and others v.

Germany 143 Konstantin Markin v. Russia 114 Kopecký v. Slovakia 140 Korbely v. Hungary 106, 108

Korolev (II) v. Russia 65 Kosiek v. Germany 128 Kostovski v. Netherlands 105 Kress v. France 105 Krone Verlag GmbH & Co KG v. Austria 132 Kroon v. Netherlands 115 Kruslin v. France 111, 123 Kudla v. Poland 154 L and V v. Austria 115, 160 Labita v. Italy 93, 147 Langborger v. Sweden 99, 103 Larissis and others v. Greece 125 Lauko v. Slovakia 101 Lautsi v. Italy 124 Lawless v. Ireland 161 Leander v. Sweden 114, 116,

117, 127,

155, 183 Le Compte, Van Leuven and De Meyere v. Belgium 137 Lehideux and Isorni v. France 132, 163 Leroy v. France 133, 164 Lettelier v. France 93 Leyla Sahin v. Turkey 112, 126,

143 Lindberg v. Sweden 127 Lindon, Otchakovsky-Laurens and July v. France, 132 Lingens v. Austria 131, 132 Lithgow and others v. UK 141, 142 Litwa v. Poland 90 Loizidou v. Turkey 50, 52,

165, 166 Lopez Ostra v. Spain 114, 122 Lukanov v. Bulgaria 88 M. v. Germany 89, 107 M.C. v. Bulgaria 83 M.G. v. UK 116 M.S. v. Sweden 116 Maaouia v. France 75, 98 Madsen v. Denmark 110 Maestri v. Italy 68, 110 Makaratzis v. Greece 80 Malige v. France 101 Malone v. UK 111, 123 Mamatkulov and Abdurasulovic v. Turkey 66 Manera and Atripaldi v.

Romania 119 Manole and Others v. Moldova 129

13

10-78 Iustus Cameron 21 dec.indd 13

10-12-21 11.11.11

Marckx v. Belgium 115 Margareta and Roger Andersson v. Sweden 120 Mastromatteo v. Italy 80 Mathews v. UK 145, 147 Mathieu Mohin and Clerfayt v. Belgium 109, 145 McCallum v. UK 122 McCann and others v. UK 79 McGinley and Egan v. UK 116 McGoff v. Sweden 92, 183 Mennitto v. Italy 97 Micallef v. Malta 96 Miller v. Sweden 98, 104 Moretti and Beneditti v. Italy 119 Müller and others v. Switzerland 131 Nachova and others v. Bulgaria 80, 159 Naletilic v. Croatia 174 Napijalo v. Croatia 148 National Provincial, Yorkshire and Leeds Building Societies v. UK 140, 142 National Union of Belgian Police case, 136 Niemietz v. Germany 122, 176 Nikitin v. Russia 151 Nilsson v. Sweden 152 Norris v. Ireland 61, 114,

115 Oberschlick (no. 2) v. Austria 132 Oberschlick v. Austria 131 Observer and Guardian v. UK 112, 130 Ocalan v. Turkey 50 Ocalan v. Turkey (2010) 69 Odièvre v. France 117 Oliviera v. Netherlands 149 Olsson v. Sweden 111, 115,

120 Olsson v. Sweden (no. 2) 120 Open Door and Dublin Well Women v. Ireland 61 Opuz v. Turkey 48, 80,

159 Orban, De Bartillat and Éditions Plon v. France 164 Osman v UK 80 Osterreichischer Rundfunk v.

Austria 132 Otto Preminger Institut v. Austria 131 Ould Dah v. France 106 Oyal v. Turkey 68

Pafitis v. Greece 177 Papamichalopolous v. Greece 52, 68 Pardo v. France 66 Peck v. UK 117, 135 Pedersen and Baadsgaard v.

Denmark 132 Peers v. Greece 84 Pellegrin v. France 99 Peltonen v. Finland 148 Perrin v. UK 131 Pfeifer and Plankl v. Austria 78 Piermont v. France 148, 163 Pine Valley Developments v.

Ireland 139 Pini and Bertani v. Romania 119 Pla and Puncernau v. Andorra 49 Plattform Ärtze für das Leben v.

Austria 134 Plon (Societe) v. France 130 Pretty v. UK 81, 126 Pudas v. Sweden 99, 183 Ramanauskas v. Lithuania 105 Ramirez Sanchez v. France 84 Rantsev v. Cyprus and Russia 87 R.C. v. Sweden 85 Rees v. UK 76, 112,

114 Refah Partisi and others v.

Turkey 58, 112,

135, 164 Řehák v. Czech Republic 63 Rekvényi v. Hungary 128, 146 Ribitsch v. Austria 82 Rieme v. Sweden 120 Ringeisen v. Austria 96 Roche v. UK 116 Rodrigues da Silva and Hoogkamer v. Netherlands 121 Rolf Gustafson v. Sweden 104 Rosenquist v. Sweden 151 Rotaru v. Romania 117 Ruotsalainen v. Finland 152 S. and Marper v. UK 116 S.N. v. Sweden 105 S.W. v. UK and C.R. v. UK 106 Saadi v. Italy 85 Saadi v. UK 91 Sabou and Pircalab v. Romania 118 Sakik and others v. Turkey 161 Salgueiro da Silva Mouta v.

Portugal 119

14

10-78 Iustus Cameron 21 dec.indd 14

10-12-21 11.11.11

Sanchez-Reiss v. Switzerland 93 Sanoma Uitgevers B.V. v. the Netherlands, 132 Sawalka v. Sweden 150 Schalke and Kopf v. Austria 138 Schenk v. Switzerland 105 Schiesser v. Switzerland 92 Schmautzer v. Austria 166 Scozzari and Giunta v. Italy 68, 121 SD v. Greece 84 Segerstedt-Wiberg v. Sweden 68, 155 Segi and Gestoras Pro-Amnistía and Others v. Austria 178 Sejdić and Finci v. Bosnia and ­Herzegovina 146, 157 Selmouni v. France 63, 82,

84 Senator Lines Gmbh v. 15 member States of the EU 177 Seurot v. France 164 Sidabras and Džiautas v.

Lithuania 158 Sigurjósson v. Iceland 75 Siliadin v. France 49, 86 Silver and others v. UK 110 Skoogström v. Sweden 92 Smith and Grady v. UK 114 Socialist Party of Turkey v.

Turkey 135 Soering v. UK 61, 83,

85 Sommerfeld v. Germany 118 Sporrong and Lönnroth v.

Sweden 99, 139,

183 Stankov and the United Macedonian Organisation Ilinden v. Bulgaria 134 Stec and others v. UK 140, 156,

159 Stephens v. Malta 50 Stoll v. Switzerland 132 Storck v. Germany 66 Stran Greek Refineries and Statis Andreadis v. Greece 141 Streletz, Kessler and Krenz v.

Germany 106 Stubbings and others v. UK 97 Sunday Times v. UK 110, 114 Sürmeli v. Germany 155 Swedish Engine Drivers Case 48, 154

Sørensen and Rasmussen v.

Denmark 137 T. I. v. UK 174 Társaság a Szabadságjogokért v.

Hungary 131 Teixera de Castro v. Portugal 105 Thlimmenos v. Greece 126, 158 Thorgeir Thorgeirson v. Iceland 132 Tibbling v. Sweden 101 Times Newspapers Ltd (Nos. 1 and 2) v. UK 129 Tomasi v. France 82 Tre Traktörer v. Sweden 99, 139 Tsirlis and Koulompas v. Greece 88 Tv Vest As and Rogaland Pensjonistparti v. Norway 131 Tyrer v. UK 76, 83 Tysiac v. Poland 81 Ukrainian Media Group v.

Ukraine 57 Uzun v. Germany 124 Valainas v. Lithuania 84 Valsamis v. Greece 154 van der Graaf v. Netherlands 84 Van der Mussele v. Belgium 86 Van der Ven and Lorsé v.

Netherlands 84 van Mechelen and others v.

Netherlands 105 van Raalte v. Netherlands 160 Varnava v. Turkey 80 VDSÖ and Gubi v. Austria 128 Vetter v. France 123 Vilvarajah and others v. UK 84, 85 Vogt v. Germany 128 von Hannover v. Germany 49, 117,

132 Vo v. France 81 Västberga Taxi AB and Vulic v.

Sweden 101 Waite and Kennedy v. Germany 174 Wassink v. Netherlands 93 Weber and Saravia v. Germany 123 Weber v. Switzerland 165 Welch v. UK 107 Wemhoff v. Austria 89 Wille v. Liechtenstein 128 Winterwerp v. Netherlands 93 Wretlund v. Sweden 110 X and Y v. Netherlands 49 X, Y and Z v. UK 115

15

10-78 Iustus Cameron 21 dec.indd 15

10-12-21 11.11.11

Young, James and Webster v. UK 134,

136 Yumak and Sadak v. Turkey 145 Z and others v. UK 83 Z v. Finland 116 Zdanoka v. Latvia 109, 145,

146, 164

Zolotukhin v. Russia Öneryıldız v. Turkey Özgür Gündem v. Turkey Öztürk v. FRG

151, 152 140 127 101

2. European Commission of Human Rights 19 Chilean citizens and the S. Association v. Sweden Arrowsmith v. UK Assoc. X v. Sweden (1982) Association X v. Sweden (1978) Brüggemann and Scheuten v. the Federal Republic of Germany Christians against Racism and Fascism v. UK Ciulla v. Italy Cyprus v. Turkey Dello Preite v. Italy Eggs v. Switzerland Finska församlingen i Stockholm and Teuro Hautaniemi v. Sweden Freidl v. Austria Glimmerveen and Hagenbeek v. the Netherlands, Iversen v. Norway KPD v. FRG Lawless v. Ireland

M v. FRG (1984) 148 62 M. v. Germany 175 125 McVeigh, O’Neill and Evans v.

127 UK 89, 109 137 Nielsen v. Denmark 62 Paxton v. UK 81 81 Pudas v. Sweden 139 Rassemblement Jurassien and 134 Unite Jurassiene v. Switzerland 114 89 Reformed Church of X v. the 50 Netherlands 125 62 Temeltasch v. Switzerland 165 101 UUHINIEMI v. Finland 142 U. v. Sweden 88 48 X and Church of Scientology v.

135 Sweden 62, 76,

131 164 X and Y v. Ireland 102 86 X v. FRG 86 164 X v. UK 135 89

3. Swedish Cases NJA 1973 s. 423 NJA 1981 s. 1205 NJA 1984 s. 903 NJA 1988 s. 572 NJA 1989 s. 131 NJA 1990 s. 636 NJA 1991 s. 188 NJA 1991 s. 512 NJA 1992 s. 532 NJA 1994 s. 657 NJA 1996 s. 207 NJA 1996 s. 649 NJA 1997 s. 235 NJA 1998 s. 204 NJA 1998 s. 232 NJA 1998 s. 817

181 183 183 104, 183 89, 183 89, 183 183 183 184 99 99 105 103 105 104 127

NJA 1999 s. 602 NJA 2000 s. 622 NJA 2001 s. 22 NJA 2001 s. 344 NJA 2001 s. 409 NJA 2001 s. 535 NJA 2001 s. 563 NJA 2001, s. 563 NJA 2002 s. 83 NJA 2002, s. 288 NJA 2003 s. 323 NJA 2003 s. 407 NJA 2004, s. 336 NJA 2004 s. 493 NJA 2004 s. 840 NJA 2005 s. 33

104 101, 151, 189 100 100 127, 171, 184 106 184 95 104 103 106, 124 104 141 104 101, 151, 189 191

16

10-78 Iustus Cameron 21 dec.indd 16

10-12-21 11.11.11

NJA 2005 s. 407 NJA 2005 s. 462 NJA 2005 s. 726 NJA 2005 s. 805

NJA 2006 s. 293 NJA 2006 s. 467 NJA 2007 s. 584 NJA 2007 s. 805 NJA 2007 s. 891 NJA 2007 s. 1037 NJA 2008 s. 946 NJA 2009 p. 475 II NJA 2009 s. 463 NJA 2009 s. 475 I NJA 2010 s. 8 NJA 2010 s. 112 NJA 2010 s. 168 I–II RH 1995:85 RH 1996:58 RH 1996:68 RH 2000:61 RH 2000:96 RH 2000:98 RH 2001:23 RH 2004:41 RH 2004:51 RH 2005:52

95 188, 194 194 124, 127, 133, 189 191 133 194 133 194 106 195 106 188, 195 106 195 195 152, 189 188 103 103 151, 188 62 62 103 97 131 151

RÅ 1974, s. 121 RÅ 1990 not 492 RÅ 1990 ref. 59 RÅ 1990 ref. 75 RÅ 1991 not 160

181 104, 183 99 104, 183 104

4. European Court of Justice 11/70, Internationale Handelsgesellschaft 168 4/73, Nold v. Commission 168 44/79, Hauer v. Land Rheinland-Pfalz 168 314/85, Foto-Frost 175 12/86, Demirel 170 46/87, Hoechst v. Commission 176 5/88, Wachauf 170 C-260/89, ERT—Anonimi Etairia v.

DEP and others 129 C-159/90, Society for the Protection of the Unborn Child v. Grogan 170

RÅ 1995 not 156 RÅ 1995 ref. 58 RÅ 1996 ref. 6 RÅ 1996 ref. 44 RÅ 1996 ref. 56 RÅ 1996 ref. 57 RÅ 1996 ref. 68 RÅ 1997 ref. 18 RÅ 1997 ref. 65 RÅ 1997, ref. 65 RÅ 2000 ref. 65 RÅ 2000 ref. 66 RÅ 2000, ref. 66 RÅ 2001, ref. 56 RÅ 2002, not. 57 RÅ 2002 ref. 23 RÅ 2002, ref. 55 RÅ 2004, ref. 99 RÅ 2004, ref. 122 RÅ 2005 not 122 RÅ 2005 ref. 29 RÅ 2006, ref. 43 RÅ 2006 ref. 87 RÅ 2009 ref. 94 RÅ 2010 ref. 61

149 99 183 191 191 191 183 191 100, 171 188 101 101, 151 194 98 99 104 95 99 98 141 100 194 187 152 194

Unreported Swedish cases KR Jönköping 2004-04-19, mål 2295-2298-02 KR Sundsvall, 2004-01-29, mål 2434-02 Svea hovrätt avgörande 2004-12-23 mål T 3178-02.

C-97/91, Borelli v. Commission C-268/94, Portugal v. Council Opinion 2/94, Accession by the ­Community to the ECHR C-209/94, Greenpeace and others v.

Commission C-353/99, Council of the European Union v. Heidi Hautala C-94/00, Roquette Frères v.

Commission C-187/01 and C 385/01, Criminal ­Proceedings against Gözütok and Brugge

103 98 82

99 172 180 178 173 177 151

17

10-78 Iustus Cameron 21 dec.indd 17

10-12-21 11.11.11

C-112/00, Schmidberger v. Austria 170 C-555/07 C-555/07 Seda C-20/00 and C-64/00, Booker Kücükdeveci 156 Aquaculture Ltd and Hydro C-402/05 P and C-415/05 P, Yassin Seafood GSP ltd v. Scottish Abdullah Kadi and Al Barakaat Ministers 173 International Foundation 179 C-144/04 Mangold 156 5. Other cases A and others v SSHD BVerfGE 7, 198 BVerfGE 73, 339 2 BvE 2/08 et al.

162 2 BvR 2661/06 49 Agiza v. Sweden 169 Firth v State of New York 169

169 85 129

18

10-78 Iustus Cameron 21 dec.indd 18

10-12-21 11.11.11

1 Introduction 1.1 Overview It might be appropriate to begin by saying what the book is, and is not. It is not a comprehensive analysis of the Convention. This is now beyond the scope of a book of less than fifteen hundred pages. Nor does the book contain a comprehensive analysis of the Swedish cases and issues which have arisen in relation to the Convention. It is still less intended as a general introduction to the large and complicated subject of public international law (folkrätt). This book only discusses international law insofar as this is necessary to understand the Convention and its status under Swedish law. The Convention is a treaty, albeit a rather special one, and so the book begins by explaining briefly what a treaty is and how and why a treaty can bind the Swedish state. These points in turn necessitate a brief explanation of the nature and function of international law, the relationship between international law and national (or “domestic”) law and the subjects of international law.

Space constraints have meant that complicated subjects have had to be considerably simplified and summarised. The book then proceeds to examine the origins and structure of the Convention (Chapter 2) and the composition and functioning of the Convention organs (Chapter 3). The examination of the composition etc. of the Convention organs is kept to the bare minimum in order to leave more space for the main part of the book (Chapters 4 and 5) which is devoted to giving an overview of the substantive rights in the Convention, and the limits on them. I have tried to take up a representative sample of substantive issues in these chapters, but I have also tried to note issues of particular importance to Sweden. Chapters 6 and 7 are very brief examinations of the role the Convention plays in the law of the European Union (EU) and in Swedish law. The text of the Convention and other relevant information for reference purposes are set out in the appendices to 21

10-78 Iustus Cameron 21 dec.indd 21

10-12-21 11.11.11

the book. Appendix 4 consists of a guide to sources. The emphasis in modern legal education is upon methodology rather than material law.

Lawyers must know how to find the law by themselves and they must know how to apply it once they find it. The key to understanding the Convention is the case law of the Court and this book refers continually to this case law. This case law is now increasing with vast numbers every year. There is also a large number of books and articles written on the Convention. Appendix 4 accordingly explains the citation system used for references to cases, how to go about finding relevant case law and how to research issues relating to the Convention.

The book is written primarily for Swedish readers, but it is written in English rather than Swedish. This is not intended simply to make life more difficult for you! There are a number of reasons for this. First, formally speaking, it is the English (and French) texts of the Convention which apply as law in Sweden, not the Swedish translation. Second, English is one of the two working languages in Strasbourg. The official Convention case reports are only available in English and French and the Swedish foreign office (UD) works directly in English when it prepares cases concerning the Convention. Any thorough analysis of a Convention issue must involve extensive reading in one of these two languages. English is nowadays the most important language in international law matters. Third, more generally, developments in Swedish law as a whole, particularly Swedish membership of the EU, mean that Swedish lawyers must be able to find and use comparative legal ma足足足terial written in foreign languages. Nonetheless, I am aware of the difficulties which are involved in studying in an unfamiliar language. Thus, the English has been simplified whenever possible and translations of certain technical terms have been provided (see appendices 1 and 3).

I have tried to limit the number of footnotes. This book is intended simply as an introduction to the Convention and so a balance has to be drawn between the need to keep the book readable and the need to support the views expressed by reference to authorities. It is not intended that first term students should need to read the cases to which I refer. The curious student has, however, something to go on if he or she wishes to research further and/or to begin their own work of analysing an issue from a particular epistemological (theory of knowledge perspective) such as gender or heuristics.

22

10-78 Iustus Cameron 21 dec.indd 22

10-12-21 11.11.11

1.2 A Few Words About International Law 1.2.1 The Nature and Function of International Law There are nearly 200 states now in the world community. Each of these states has its own domestic laws which it applies to the legal and natural persons in its jurisdiction (which usually means within its territory).

Each state is “sovereign” in this respect, that is, it decides for itself what laws to make and how to apply them. One sovereign state cannot usually impose its laws on another. But in dealing with each other, states need laws as much as individuals do. They thus need a framework or body of rules which regulates and controls how they interact with each other. This body of rules which states make for themselves is called public international law, or international law for short.1 In principle, the functions served by public international law in the world community are the same as those served by domestic law within states, although the means of creation of the law are different. Whereas domestic law is created by the domestic legislature, there is no international legislature, or world government, which makes laws for states.

Instead, states make laws by and for themselves. International law consists of two main systems of rules: customary international law and treaty law. Customary international law consists of two elements: a practice or pattern of behaviour by states and a general acceptance that this practice is authorised or obligatory. Treaties are legally binding express agreements between states that are governed by international law. Nowadays treaties are the more important source of international law.

In general obligations cannot be imposed upon states without their consent, express or implied. In principle, states are deemed to have consented to customary international law rules unless the contrary is proved. There are special procedures, explained below, by which a state signals its consent to be bound by a treaty. But once consent has been given, the state is bound. States need security in their relationships the same as individuals do: this security can only be provided by a framework of rules, and all states need to be able to rely on the fact that the 1

It is important to distinguish it from private international law (internationell privat­ rätt) which is a body of rules each state makes for itself laying down when the state’s courts will apply foreign law. Private international law regulates disputes between individuals which have an international dimension. It operates within a framework of public international law.

23

10-78 Iustus Cameron 21 dec.indd 23

10-12-21 11.11.11

other states will follow the rules. The basic rule of international law is pacta sunt servanda—treaties ought to be obeyed. States have different interests and different objectives (political, military, economic) which they wish to achieve in their diplomatic dealings with one another.

International law constitutes the rules of the game of diplomacy. All states want to “win” as much as they can but, equally, all the players have an interest in keeping the game going and ensuring that the rules are followed.2 The character of international law has altered through the years as a result of the changes that have occurred in the character and size of the international community. In the nineteenth century the main function of international law could be described as providing a minimum of procedural rules designed to protect states’ independence and freedom of action, e.g. rules governing diplomatic relations and the drawing of territorial boundaries. The number of states in the world has increased greatly since then, vast improvements have occurred in transport and communications and international trading links and other international contacts have increased correspondingly. States have in fact become economically dependent on each other. To put it simply, they now interact with each other continually and they need a framework of rules which enables these continual interactions to go as smoothly as possible. International law is now no longer merely about ensuring peaceful coexistence (samlevnadsrätt) but of promoting international cooperation in almost every field of human activity (samarbetsrätt).3 1.2.2 The Individual as a Subject of International Law: the Origins of International Human Rights Law The subjects of international law have also undergone a change since the beginning of the twentieth century. It is no longer true to say that international law simply governs relations between states and that, correspondingly, only states can have rights and duties under international law. The growing complexity of the international community has led 2

See generally Henkin, 1979 and Reisman, 1981.

Eek et al, 1987, p. 469. The subject of globalisation is huge, involving as it does not only greatly expanded legal cooperation, but economic, political, cultural etc. trends.

For an introduction, particularly as regards the impact on democracy, see Petersson et al, 2001.

3

24

10-78 Iustus Cameron 21 dec.indd 24

10-12-21 11.11.11

to the creation of permanent international organisations, both regional and univer­sal, where states can discuss matters of common concern and decide common policies. The most important of these universal organisations is the UN which was founded in 1945 but there are hundreds of others. It has been convenient for states to grant many of these organisations con­siderable powers and a degree of autonomy in carrying out common pol­icies. Such organisations thus have varying degrees of “international per­sonality”, i.e. they are capable, like states, of acting independently in the international sphere in the same way as corporations under domestic law have separate legal personality and autonomy from their owners.

Since 1945 it has also become generally accepted that, while individ­ uals are not full subjects of international law in the sense of being actors in the international sphere, they can have rights and duties under inter­ national law. The main reasons for this lie in the carnage of World War II. In Nazi occupied Europe, millions of people (in particular Jews) were stripped of all rights under domestic law and murdered.

When those responsible were put on trial after the war the defence was raised that these atrocities were quite legal under the German law at the time and that how a state treated its own citizens was a matter for that state alone. The Holocaust and the other terrible deeds of the war forced people to realise that states could not be trusted to ensure that their laws protected basic human values. This restimulated an interest among lawyers in natural law and natural rights, an approach which had long been rejected by the majority of legal thinkers in favour of positivism.­The philosophical foundations of human rights are still the subject of debate.4 Probably only a few intellectuals in secular Western states would accept the idea that universal moral values exist. If there are no “natural” universal moral values we can discern by the exercise of reason, then the idea of human rights can be seen as a modern replacement for religion. Human rights on this approach are a creation of particular social, economic and political conditions of the twentieth­ century, not rights which have always existed.5 Arguably, they are not even a product of rationality, but of a greater capacity relatively well4

For useful brief introductions see Freeman, 1994 and Fagan, 2006.

Bobbio, 1996. I should add: there is no guarantee that these conditions will persist in the future.

5

25

10-78 Iustus Cameron 21 dec.indd 25

10-12-21 11.11.12

off humans have developed for sympathizing with others.6 On this approach, the best way to advance the cause of human rights in the world—because the philosophers are in agreement on this at least— is to work towards conditions of improving empathy, of encouraging people to regard the “other” as as human as oneself.

Pragmatic lawyers have preferred to leave this discussion aside and have contented themselves with drawing the conclusion that individ­ uals should be granted the ultimate safeguard of having positive rights, and positive duties, under a legal system superior to the national legal system. To be meaningful, individuals must be given some means of protecting these rights on the international level, and similarly, those that violated those ultimate rights must be able to be put on trial for breaches of interna­tional law.7 Human rights thus became a matter of international concern. On the international law level, then, the argument for complying with human rights is relatively simple; if a state has ratified a human rights agreement, then it is bound to comply with it.

There were also practical reasons for this development. The increased interdependence of states in the world community and the increased awareness people had of what was going on in other countries also meant that the effects of major human rights violations could not be confined to the state perpetrating them. There was thus a link between respect for human rights within states and maintaining peace and secu­rity between states—which is the primary function of international law.8

6

Rorty, 1998 uses the term “sentimentality”. But not all philosophers are prepared to exclude the idea that human rights compliance, both on the individual and group level, can be justified on the level of rationality. See Gewirth, 1982 and Freeman, 1994.

7 The movement against “impunity” took a step forward with the creation of a per­ manent international criminal court with jurisdiction over war crimes in international and national conflicts, crimes of aggression and crimes against humanity. See Rome Stat­ute of the International Criminal Court, 37 ILM 999 (1998), in force April 2002.

8 For an example of this link see the Security Council resolution establishing an interna­tional criminal court for Rwanda following the massacres committed by the majority Hutu group on the minority Tutu group, SC Res. 955 (8 November 1994).

The permanent members of the Security Council, however, have so far refused to accept the idea of the international community, and the Security Council as its representative, as having a “responsibility to protect” a state’s population from its own government’s committing of, or passivity in the face of, massive human rights violations. See ICISS, 2001.

26

10-78 Iustus Cameron 21 dec.indd 26

10-12-21 11.11.12

Having said this, the idea of human rights fits in uneasily with the basic idea behind international law, state sovereignty. This means that a state must have accepted a treaty obligation before it is binding upon it, and that other states may not intervene in that state’s domestic affairs.

But if there are universal values, then the fact that a state has not, in fact, accepted human rights obligations in a treaty is irrelevant. And if human rights are seen as antedating, and validating, the creation of state institutions, then why should the sovereignty of a state which gravely violates human rights be respected? Nowadays, seventy years after World War II, we are seeing human rights being used offensively in international relations, to justify intervention in states, rather than to maintain peace between them.

In any event, one of the first steps taken to improve respect for human rights was the issuance of a universal declaration of human rights (UDHR) by the UN in 1948.9 This contained a list of individual rights which states were encouraged to respect. Although the UDHR was a recommendation and not as such legally binding on states,10 international treaties on human rights based on the UDHR soon followed. The first of these was the ECHR in 1950.

International human rights lawyers speak about three different ­“gen­erations” of rights.11 The first of these is the “traditional” or “negative” rights to be found in the American and French Declarations of the Rights of Man, guaranteeing individuals that they will be left in peace by the state and ensuring that they can exercise their political freedoms which act as controls on the power of the state.12 The second generation are social or economic rights (e.g. to education, employment, housing) 9

GA Resolution 217(A)III 1948.

The Vienna Declaration of the World Conference on Human Rights, 1993, endorsed by the General Assembly in Res. 48/121 (1993) later expressed the view that the UDHR now constitutes “customary international law”.

11 For a general introduction to the subject of international human rights see Alston/ Steiner, 2007.

12 What international human rights law refers to as “rights” and “freedoms” can be ana­lysed more accurately in terms of a four fold division of claims, immunities, liberties, powers against the state (see Hohfeld, 1964), or alternatively as negative and positive liberty rights and claim rights (see Jones 1994). Rights to a state of being, or a state of affairs, as Neil MacCormick defines human rights, are complexes of different claims on the state and on other people (MacCormick, 2007, p. 132). These are complicated subjects and I will not go into them in the present book.

10

27

10-78 Iustus Cameron 21 dec.indd 27

10-12-21 11.11.12

which demand that the state act to secure them.13 There is a link here between “negative” rights and the concept of justiciability. Civil and political rights are, generally speaking, justiciable, i.e. capable of being protected by judicial process, whereas it is usually more difficult to pro­ mote economic and social rights in this way.14 However, at the end of the day, all rights cost money, and a traditional civil right, such as the right to a fair trial, involving as it does the provision of legal aid and the establishment and maintenance of efficient police, prosecutors and courts, can cost as much or more than a social right. The third genera­ tion of rights are group rights, such as the right to self­-determination and minority rights.

There is now a whole battery of human rights treaties, both regional and universal. Some of these seek to protect a general catalogue of human rights15 and others specific rights, (e.g. to non-discrimination) or specific groups (e.g. children, ethnic minorities). States which consent to such treaties undertake obligations to treat individuals in their juris­ diction in accordance with the rules set out in the treaties. One reason that states normally have for complying with a treaty, e.g. a trade treaty, is their fear that non-compliance will encourage similar behaviour from the other contracting parties. This reason does not always function so well with human rights treaties, or, for that matter, environmental treaties. Thus, to attempt to ensure that states com­ply with their obligations, most such treaties establish monitoring bod­ies with varying powers, e.g. to demand the production of periodic reports, and to question state representatives regarding these reports, to engage in fact-finding in the state, to adopt general comments and guidelines aimed at all state parties, to adopt comments aimed at spe­cific states, or to receive 13

This classification can, however, be misleading. As shown below (section 2.5), the obligation to “secure” rights can mean that there is a positive duty on the state to act.

Moreover, the Convention does contain certain social rights (e.g. trade union rights).

14 But not impossible, see the discussion of the amended ESC (below, section 2.1), Scheinen, 2001 and Lind, 2009.

15 The leading general treaties of universal applicability are the two UN Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (1966, 999 UNTS 171 and 993 UNTS 3). The other general regional treaties are the Banjul (Afri­can) Charter on Human and Peoples’ Rights, 1981, 21 ILM 58, together with Protocol establishing the African Court of Human Rights, 1997, OAU/LEG/MIN/ AFCHR/PROT. 1 res 2 (1997) and the American Convention on Human Rights, 1969, 9 ILM 673.

28

10-78 Iustus Cameron 21 dec.indd 28

10-12-21 11.11.12

and investigate complaints by individuals. Much of these depend for their effectiveness on reputational damage (the “name and shame” principle) i.e. that states which are criticised are sufficiently embar­rassed to take voluntarily corrective steps. And the monitoring bodies are heavily dependent on information on compliance etc. re­ceived from civil society, in particular, the network of national and international NGO’s which push for respect for human rights. There is a growing literature on how to measure compliance.16 Technical assistance programmes to the governmental sector (education, training, documen­tation etc.) or in relation to social/economic rights (housing, employ­ment, health care etc.) can be based, on, or linked to, the recommenda­tions given by monitoring committees.

Richer states, such as the EU states, can also seek to encourage other states to accept and then comply with human rights treaties, and put pressure on them to do so, by condi­tioning aid, association or trade agreements on respect for human rights.17 Here too NGO’s play an important role in mobilizing public opinion and influencing governments to impose measures which they might otherwise (for trade or strategic reasons) be reluctant to do.

Many Western states—Sweden included—have tended to take an “export” approach to human rights, considering that these treaties are primarily for other countries.18 It is more difficult to see these treaties from an “import” perspective.19 At the national level the first step in genuinely respecting human rights treaties, is often to convert the treaty rules into rules of domestic law. This allows individuals and national NGO’s to invoke such rules before domestic courts and administrative­ agencies (myndigheter), and obliges such courts and agencies to apply them. Obviously, courts and administrative agencies also have to be organised and given the resources necessary to be able to take rights

16

See, e.g. Landman, 2000.

See below, section 6.1.

18 See also below, section 3.5.

19 Sweden, like some other developed states, and in accordance with the recommendations of the Vienna Conference (above) now produces periodical “National Action Plans” giving an overview of rights protection, and identifying areas of priority for administrative and legislative action. See Reg. Skr. 2005/06:95. A new structure for protection of human rights generally in Sweden has been proposed in SOU 2010:70.

17

29

10-78 Iustus Cameron 21 dec.indd 29

10-12-21 11.11.12

seriously.20 But it is not simply a question of money. For the creation of a real “culture of rights”, the norms contained in the treaty, and incor­ porated in law, have to be “internalized” in the daily work of state offi­ cials, ­particularly those exercising coercive state power against individ­ uals (social workers, the police, prosecutors, etc.).21 1.2.3 The Relationship between National and International Law This brings me to the subject of the relationship between national and international law. States operate within two spheres: the domestic, where they are supreme, and the international, where they are all equal to each another. National (or “domestic”) law governs the domestic sphere and international law the international sphere. The problem is that the two spheres overlap, and so do the two legal systems. There are different theories, “monism” and “dualism”, which seek to explain the relationship between international and national law. The subject is com­plicated, not least because different authors use “monism” and “dual­ism” to refer to different things.22 It is unnecessary to go into it in the present work. Put very simply and pragmatically, from the perspective of international law, it is superior to national law in the sense that a state cannot avoid its obligations under international law by invoking­ its national law. On the other hand, constitutionally speaking, the binding force of international law for a state ultimately comes from its constitu­tion. These radically differing perspectives seldom cause problems in practice, but can do so when international law requires states to take action at the national level which is in breach of constitutional rights.23

20 This is the paradox of the Rechtsstaat. A precondition for the exercise of a right against a state is that the state has to be strong, in the sense of being in total control of the national territory, with an effective tax and policing system and well-financed and efficient public agencies. However, rights mean that a strong state must voluntarily limit its power vis a vis its citizens.

21 There is no “blueprint” for this process of “internalization”, and, it must be said, some see little value in getting authoritarian regimes to accept international human rights commitments. See Risse et al, 2000, Hathaway 2001–02 and Goodman/Jinks, 2003.

22 See e.g. Cassese, 2005, pp. 162–181, and Vogel, 1992.

23 See below, section 6.3.

30

10-78 Iustus Cameron 21 dec.indd 30

10-12-21 11.11.12

On the other hand, whichever perspective is taken, how a state chooses to fulfill its international obligations is usually a matter for the state itself. In particular, it is up to the state whether or not it chooses to make an obligation under international law a part of its domestic law and, if so, how it chooses to go about this. Many treaties operate purely in the international sphere and so do not require to be made part of the domestic sphere, but, as mentioned, the two spheres can overlap.

“Mon­ist” states take the view that once they have given their consent to be bound by a treaty, the provisions contained in that treaty can be invoked by individuals and applied by the courts and administrative authorities in the state, provided that these provisions are sufficiently clear and complete to serve as legal rules. “Dualist” states consider that the treaty provisions must be converted (införlivad) into national law in some way by the parliament and/or government before courts and administrative agencies can apply these provisions in legal disputes.

There are similar differences of views as to whether customary interna­ tional law can be invoked before national courts and administrative agencies. Both dualist and monist states are agreed that there can be advantages in making international law part of domestic law, as by doing so the state enables its courts or administrative agencies to apply international law and so avoid situations where the state’s domestic law says one thing and its international law obligations another.

The question of how and when international law becomes a part of Swedish law is the subject of some dispute in Sweden. The Instrument of Government (regeringsformen, RF) does not deal expressly with the issue. Some authors consider that customary international law rules are automatically part of Swedish law, and so can be directly applied by Swedish courts, others disagree.24 There is also controversy surround­ing treaties although the Swedish courts and the majority of authors have taken the view that for the Swedish courts or administrative agen­cies to be able to apply a treaty there must first be a Swedish law which converts­the treaty in some way.25 Sweden can therefore be described as a “dualist” state. It is a matter for Swedish constitutional law whether 24

See, e.g. Eek et al. 1987, p. 260, SOU 1974:100 p. 145. For a survey of Swedish case law on the issue see Bring and Mahmoudi, 2007, pp. 49–56.

25 See, e.g. Eek et al., 1987, pp. 259–261. Cf. Sundberg, 1988. There is now an important exception to this rule in that secondary EU law can under certain con­ditions create direct rights for individuals. See also below, section 7.1.

31

10-78 Iustus Cameron 21 dec.indd 31

10-12-21 11.11.12

the act of conversion is in the form of a law (lag) or an ordinance (förordning). This depends upon whether the treaty concerns an area which is within the competence of the government or the parliament which in turn is set out in RF Chapter 8. There are basically two differ­ ent methods of converting a treaty. It can be “incorporated” (inkorpore­ rad) meaning that an act can be passed which states that the treaty or part of it is Swedish law. This is what the Swedish parliament finally did with the Convention.26 Alternatively, the treaty can be “trans­formed” (transformerad) either by simply being translated into Swed­ish, or translated and reformulated so that it fits in better with existing Swedish law.27 There are advantages and disadvantages with each method. It is parliament which decides whether conversion is desirable or appropriate. Where a treaty sets out obligations which parliament considers are already satisfied by existing Swedish law, parliament can simply confirm that the treaty has been fulfilled without either incorpo­rating or transforming it. This is what parliament did in 1952 when it originally gave its consent to the Convention. It also did this in 1990 with the UN Convention on the Rights of the Child.28 A treaty which has not been converted in some way is not a part of Swedish law. But this does not mean that the Swedish courts cannot use it as a source of law. There are unwritten rules in Swedish law which seek to ensure that the Swedish courts do not interpret and apply domestic law in a way which is incompatible with Sweden’s interna­tional obligations. These can be described as the principle of presump­tion and the principle of treaty conform construction.29 The principle of presumption states that the Swedish parliament and government are presumed not to pass laws and ordinances which are incompatible with Sweden’s international obligations. The principle of treaty conform construction states that, when interpreting domestic law which covers the same area 26

See below, section 7.2.2.

The precise English meaning of “incorporation” and “transformation” differ from the Swedish terms “inkorporering” and “transformation” so the two terms should be used with caution.

28 Prop. 1989/90:107. The disadvantage with this is that there is a risk that Swedish courts and administrative agencies do not pay sufficient attention to the (non-converted) treaty when they interpret and apply Swedish law because they, like parliament, simply assume that Swedish law complies with the treaty.

29 See below section 7.1.

27

32

10-78 Iustus Cameron 21 dec.indd 32

10-12-21 11.11.12

as a treaty obligation, the Swedish courts should look at the terms of the treaty and, whenever possible, choose the interpretation of domestic law which best fulfills the object and purpose of the treaty.

The importance of these principles has increased greatly with the enormous increase in international treaties covering all imaginable areas of human activity. To a large extent, domestic law making has become internationalised, i.e. states agree and adopt a binding treaty setting out a common policy or common standards in a particular field (e.g. environmental or consumer protection) and they then implement this treaty in their respective domestic legal systems by national laws.

Many of the laws presently being drafted by the Swedish Justitiedepar­ tement are based on treaties. International law has traditionally been a neglected subject in Swedish law, and Swedish practicing and academic lawyers (with a number of honourable exceptions) are badly informed about international law. But treaties now permeate every area of sub­ stantive law. EU membership has also increased the importance, and the impact, of treaties in Swedish law. It is therefore necessary nowadays for all Swedish lawyers to know something about treaties and treaty interpretation. The terms used in the present book regarding the European Convention of Human Rights must also be explained. This chapter will therefore conclude with a very short dis­cussion of treaty terminology.

1.2.4 Treaties Treaties are of two types, bilateral, between two states, and multilateral between more than two states. They can vary widely in character and subject matter: some are analogous to contracts, others, particularly in the field of human rights, to legislation. Treaties can be called many dif­ ferent things, “agreements”, “exchange of notes” “covenant” etc. Many multilateral treaties are called “conventions”. Different treaties provide for different ways for states to signal their consent to be bound. Some treaties, usually of minor importance, can become binding simply by being signed by the state’s representatives. More important treaties, particularly those that require states to change their laws, tend to require in addition “ratification” by the state before the state is bound.

Many multilateral treaties are nowadays “adopted” by an international confer­ence at which the participating states sign the treaty. Ratification 33

10-78 Iustus Cameron 21 dec.indd 33

10-12-21 11.11.12

comes later, in some cases many years later. Ratification is simply a note from the state’s government by which the state confirms that it intends to be bound by the treaty. Before ratifying an important treaty, most demo­cratic states’ constitutions state that the government is obliged to seek the consent of the legislature (see, for Sweden, RF 10:2). This is because otherwise the government would be free to undermine the democratic process by entering into a binding agreement with another state to do something of which its legislature would not approve. The period between signature and ratification is often used to pass amending legislation in the state which is intended to bring domestic law into line with the state’s new international obligations. Once a state has signaled its consent to be bound by a treaty it is called a “contracting state”, “state party” or “con­tracting party”. Most multilateral treaties specify that they shall “enter into force”, i.e. begin to apply, only when a specified number of ratifi­cations have been made. Multilateral treaties can also give the contract­ing states the opportunity to make “reservations” to the treaty at the time of ratification. Such reservations modify the contracting state’s obligations under the treaty. A treaty can naturally be amended or sup­plemented by a further treaty, often called a “protocol”.

Lastly it can be said that many of the rules relating to treaties are themselves codified in a treaty, the Vienna Convention on the Law of Treaties from 1969.30 This treaty lays down inter alia rules relating to the invalidity of treaties and for interpretation of treaties. Article 31 of the Vienna Convention states the important general rule that treaties should be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty and in the light of its object and purpose”. The consequences following from a breach of a treaty (apart from the rules relating to suspension or denunciation) are not codified in the Vienna Convention but belong to the area of interna­tional law known as state responsibility.31

30

1155 UNTS 331.

The rules on state responsibility have been codified and developed in GA Res/56/83 (2001).

31

34

10-78 Iustus Cameron 21 dec.indd 34

10-12-21 11.11.12