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Smith, Rhona --- "Interaction between international human rights law and the European legal framework" [2015] ELECD 296; in Geiger, Christophe (ed), "Research Handbook on Human Rights and Intellectual Property" (Edward Elgar Publishing, 2015) 52

Book Title: Research Handbook on Human Rights and Intellectual Property

Editor(s): Geiger, Christophe

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783472413

Section: Chapter 4

Section Title: Interaction between international human rights law and the European legal framework

Author(s): Smith, Rhona

Number of pages: 18

Abstract/Description:

This chapter addresses the interaction between international human rights law and the European legal framework. The interaction is particularly crucial when there is perceived to be a difference between the applicable regional and international standards. Which set of rules should a State prioritise and, if the question should arise, which takes precedence? The differing impacts of the European Union (EU) and Council of Europe on other organisations and businesses potentially add further layers of complexity. As will be seen, there is some guidance from the case law. The Court of Justice of the European Union (CJEU) perhaps more readily reviews international laws than the European Court of Human Rights (ECtHR) but, interestingly, each of the principal European courts will consider the other. Within human rights, there is obviously a degree of convergence between international and regional systems, each enshrining similar fundamental human rights and freedoms. For private actors, the applicable law is dependent on the law under which the actor is operating – this will inevitably be a discernible (or even explicitly specified) national legal system. That national system should reflect international human rights standards and any relevant European laws and policies. There is usually little flexibility accorded to private actors as any failure to comply with national law, whatever its form and content, could result in legal action.