¹ The lectures delivered during both the Human Rights Law and European Law sessions of the XVth Academy of European Law will be published in the series The Collected Courses of the Academy of European Law at Oxford University Press.Google Scholar

² A. Clapham, Human Rights in the Private Sphere (1993).Google Scholar

³ The first sentence of Art. 1 of the Universal Declaration of Human Rights, GA-Res. 217(III), 19 December 1948, 3 UN-GAOR 71, UN–Doc. A/810 (1948) stipulates: “All human beings are born free and equal in dignity and rights”.Google Scholar

⁴ See Fred Khumalo, Skhumbuzo Miya, Fidel Mbhele, Times Media Limited, New Africa Publications Limited v. Bantubonke Harrington Holomisa, Constitutional Court of South Africa, Case CCT 53/01.Google Scholar

⁵ Section 6 § 3 (b) of the Human Rights Act 1998. See House of Lords, House of Commons, Joint Committee on Human Rights, The Meaning of Public Authority under the Human Rights Act, Seventh Report of session 2003-4.Google Scholar

⁶ Poplar Housing and Regeneration Community Association v Donoghue EWCA Civ 595, 2001‥Google Scholar

⁷ Callin, Heather and Ward v Leonard Cheshire Foundation EWCA Civ 366, (2002).Google Scholar

⁸ Aston Cantlow, Appellate Committee of the House of Lords UKHL 37 (2003).Google Scholar

⁹ Supra at note 3.Google Scholar

¹⁰ General Comment No. 31 of the Human Rights Committee (21 April 2004) on Art. 2 of the International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171, available at http://www.unhchr.ch/tbs/doc.nsf/.Google Scholar

¹¹ General Comment No. 14 of the Committee on Economic, Social and Cultural Rights (11 August 2000) on Art. 12 of the International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, available at http://www.unhchr.ch/tbs/doc.nsf/.Google Scholar

¹² International Convention on the Elimination of all Forms of Racial Discrimination, 7 March 1966, 660 UNTS 221.Google Scholar

¹³ See Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, 2000 O.J. (L 180) 22ss, and Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, 2000 O.J. (L 303) 16ss.Google Scholar

¹⁴ European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221.Google Scholar

¹⁵ Appleby and Others v. The United Kingdom, Eur.Ct.HR (Judgement of 6 May 2003), available at http://www.echr.coe.int/Eng/Judgments.htm. However, in his partly dissenting opinion Judge Maruste found a violation of Arts. 10 and 11 ECHR and argued that it could not be the case that through privatization public authorities divest themselves of any responsibility to protect rights and freedoms other than property rights.Google Scholar

¹⁶ VGT Verein gegen Tierfabriken v. Switzerland, Eur.Ct.HR RJD 2001-VI, 243. (Judgement of 28 June 2001),.Google Scholar

¹⁷ H.L.R. v. France., Eur.Ct.HR RJD 1997-III, 745 (Judgement of 29 April 1997).Google Scholar

¹⁸ This may be seen as one aspect of the more general discussion whether international law is undergoing a more or less fundamental change in the wake of the terrorist activities in recent years. See W.H. Taft IV, J.J. Paust, R. Dolzer and K.M. Meesen, Symposium: Current Pressures on International Humanitarian Law, Yale J. of Int'l Law 2003 317,54.Google Scholar

¹⁹ Annexed to GA-Res. 49/60, which states in its preamble: “[…] Concerned at the growing and dangerous links between terrorist groups and drug traffickers and their paramilitary gangs, which have resorted to all types of violence, thus endangering the constitutional order of States and violating basic human rights, […]” [emphasis added].Google Scholar

²⁰ See Art. 7 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3, 37 ILM 999 (1998).Google Scholar

²¹ See Treaty on the European Union, Art. 6, 2002 O.J. (C 325).Google Scholar

²² See Draft Treaty establishing a Constitution for Europe, Art. I-7 § 2 and Part II The Charter of fundamental rights of the Union, 2003 O.J. (C 169) and the provisional consolidated version of the Draft Treaty establishing a constitution for Europe, Doc. CIG 87/04, available at http://europa.eu.int/futurum/eu_constitution_en.htm.Google Scholar

²³ Case C-281/98, Angonese, Eur.Ct.J. (Judgement of 6 June 2000), available at http://curia.eu.int.Google Scholar

²⁴ Case C-112/00, Schmidberger, Eur.Ct.J. (Judgement of 12 June 2003), available at http://curia.eu.int.Google Scholar

²⁵ M. N. Shaw, International law 224 (5th ed. 2003); P. Daillier, A. Pellet, Droit International Public 1051 (7ième éd. 2002); The Third US Restatement of Foreign Relations Law, St Paul, 1987, 126 notes that the transnational corporation, while an established feature of international life, “has not yet achieved independent status in international law”.Google Scholar

²⁶ See Commentary on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/38/Rev.2 (2003).Google Scholar

²⁷ The OECD Guidelines for Multinational Enterprises, Revision 2000 with Commentaries, available at http://www.oecd.org/dataoecd/56/36/1922428.pdf.Google Scholar

²⁸ Doe I v. Unocal Corp., 963 F.Supp. 880 (C.D. Cal. 1997, appealed in the 9th Circ. 2002).Google Scholar

²⁹ Sosa v. Alvarez-Machain“ (US Supr. Ct. Decided 29 June 2004 together with United States v. Alvarez-Machain) The case of Alvarez-Machain began in 1985 when an agent of the US Drug Enforcement Administration (DEA) investigating in Mexico was kidnapped, tortured and murdered by a group of Mexicans. Among the suspects was Humberto Alvarez-Machain, an obstetrician from Guadalajara, who was taken custody of by DEA officials (among them the former policeman Jose Francisco Sosa) and abducted to El Paso, Texas. In the subsequent criminal proceedings against him, Alvarez-Machain argued that federal courts lacked jurisdiction to try him due to the manner by which he was apprehended. The Supreme Court finally held that Alvarez-Machain could be tried in the US following the doctrine of male captus, bene detentus (Alvarez-Machain v. United States, 504 U.S. 655 (1992). However, in the following federal court trial Alvarez-Machain was acquitted. In 1993, Alvarez-Machain now on his behalf brought a civil lawsuit alleging various torts against Sosa and other individuals (based on the Alien Tort Claims Act) as well as against the United States (based on the Federal Tort Claims Act). The district court granted the government's motion to dismiss the FTCA claim but held on the basis of the ATCA that Alvarez-Machain could recover damages for his detention prior to his arrival in the United States and awarded him $25,000. The latter decision was affirmed by the Court of Appeals for the Ninth Circuit on 11 September 2001, while the dismissal of the FTCA claim was reversed (266 F. 3d 1045 (2001)). The Supreme Court granted certiorari to clarify the scope of the FTCA and the ATCA (540 U.S. 1045 (2003).Google Scholar

³⁰ The Supreme Court put forward several reasons arguing for great caution in adopting the law of nations to private rights (see pages 30 – 37 of the judgment) and reversed the award of damages. The reversal of the dismissal of the FTCA claim by the Ninth Circuit Court of Appeals was also repealed.Google Scholar

³¹ Referring to its established case-law (The Paquete Habana, 175 U.S., at 700) the Supreme Court, albeit cautiously, recognized at page 40 of its judgment that, in the absence of a treaty “[R]esort must be had to the customs and usages of civilized nations”.Google Scholar

³² See Commentaries of the ICRC to the Geneva Conventions 1949 and the 1977 Protocols, Art. 3, 52, available at http://www.icrc.org/ihl.nsf/WebCONVART?OpenView.Google Scholar

³³ See Art. 10, Commentaries to the Draft Articles of States for Internationally Wrongful Acts, ILC Report, 53rd Session, 56 UN-GAOR, Supp.No.10, UN-Doc.A/56/10(2001), 111.Google Scholar

³⁴ See Preamble, Arts. 1 and 17 of the Rome Statute of the International Criminal Court, note 20.Google Scholar

³⁵ See Reference Re Secession of Quebec, Supreme Court (Canada) [1998] 2.S.C.R. 217; N. Dorsen et al, Comparative Constitutionalism (2003) Chapter 11, Sect. A.Google Scholar

³⁶ R. Dahl, Democracy and its critics 221 (1989) 221.Google Scholar

³⁷ M. Rosenfeld, Spinoza's Dialectic and the Paradoxes of Tolerance: A Foundation for Pluralism?, Cardozo Law School, Public Law Research Paper No. 79, 12, available at http://ssrn.com/abstract=466360.Google Scholar

³⁸ See Council of Europe Resolution 1096 (1996) 1 on measures to dismantle the heritage of former communist totalitarian systems, available at http://www.coe.int/.Google Scholar

³⁹ Refah Partisi (The Welfare Party) v. Turkey, Eur.Ct.HR (Judgement of 13 February 2003), available at http://www.echr.coe.int/Eng/Judgments.htm.Google Scholar

⁴⁰ J. Habermas, Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des Demokratischen Rechtsstaates (2nd ed. 2001).Google Scholar

⁴¹ Lingens v. Austria, Eur.Ct.HR Ser. A-103, 11 (Judgement of 8 July 1986); Andreas Wabl v. Austria, Eur.Ct.HR (Judgement of 21 March 2000), available at http://www.echr.coe.int/Eng/Judgments.htm; Unabhängige Informationsvielfalt v. Austria, Eur.Ct.HR RJD 2002-I, 271 (Judgement of 26 February 2002),.Google Scholar

⁴² A. v. United Kingdom, Eur.Ct.HR RJD 2002-X, 119 (Judgement of 17 December 2002),.Google Scholar

⁴³ Perna v. Italy, Eur.Ct.HR (Judgement of July 25, 2001 and Judgement of 6 May 2003 – Grand Chamber); Amihalachioaie v. Moldova, Eur.Ct.HR (Judgement of 20 April 2004), available at http://www.echr.coe.int/Eng/Judgments.htm.Google Scholar

⁴⁴ See under B.II. and in particular Appleby and Others v. The United Kingdom (supra at note15); VGT Verein gegen Tierfabriken v. Switzerland (supra at note 16).Google Scholar

⁴⁵ See Art. 23 of the Czech Charter of Fundamental Rights and Freedoms: “Citizens have the right to resist anybody who would do away with the democratic order of human rights and fundamental freedoms, established by the Charter, if the work of the constitutional organs and an effective use of legal means are frustrated”.Google Scholar

⁴⁶ K. Smith, Western Actors and the Promotion of Democracy, in A. Pravda, J. Zielonka (ed.), Democratic Consolidation in Eastern Europe Vol 2. 33(2001).Google Scholar

⁴⁷ See Council of Europe monitoring procedures: an overview, CoE doc.Monitor/Inf (2004) 2, 5 April 2004, available at http://dsp.coe.int/monitoring.Google Scholar

⁴⁸ In order to draw the line between terrorists and non-terrorists, the need for a definition results inter alia from Art. 7 ECHR which sets forth the standard of legality.Google Scholar

⁴⁹ Rasul et al v. Bush, President of the United States et al, 124 S. Crt. 2686 (2004) together with Al Odah et al. v. United States et al. 124 S.Crt. 2686.Google Scholar

⁵⁰ Art. 1 ECHR (supra at note 14) states: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention” [emphasis added].Google Scholar

⁵¹ Loizidou v. Turkey, Eur.Ct.HR RJD 1996-VI, 2216 (Judgement of 18 December 1996), In Bankovic and Others v. Belgium and Others, RJD 2001-XII Eur.Ct.HR (Decision of 12 December 2001), jurisdiction was denied and the case declared inadmissible.Google Scholar