European integration – The EU’s Accession to the ECHR

This blog has been dead for a few months now. Part of the reason for this is that I have had to put a lot of effort into planning and writing my master thesis. I also attended the Hague Academy of International Law over the summer.

During my stay in the Hague I shared an apartment with the editor of the student-run blog of the Denver Journal of International Law and Policy, named The View From Above. I was thus invited to write a few blog posts about the main international organizations in Europe, and my thesis topic; the European Union’s accession to the European Convention of Human Rights.

All three of these articles have been published at TVFA this fall, and may be accessed through the following links:

A copy of all three articles is also available through the “Fortsett å lese” link below. However, I recommend reading them on TVFA through the links above. The copies enclosed here are mainly for archival purposes.

 

An overview over the European Union

his blog post is the first in a series of three where I will be exploring the forthcoming changes of the European Human Rights system. In this post I intend to give an overview of the European Union. The second blog post will focus on the European Convention on Human Rights. Both these posts will lay the foundation for the third blog post, where the EU’s accession to the European Convention of Human Rights will be discussed.

After the Second World War, the nations of Europe saw regional cooperation as a key for avoiding further wars. Out of the ashes of war two international organizations were set up; the Council of Europe and the European Coal and Steel Community. The former exists to this day, and is the parent organization of the European Court of Human Rights. The latter was the first building block of the European Union.

The layout of the Union

The European Union is, at its heart, an international organization. However, in contrast to traditional international organizations, which are generally a form of institutionalized inter-governmental cooperation, the European Union has a much larger autonomy.1 The EU has also been conferred considerable powers from the member states.

These powers are mainly exercised through the Unions’ four primary organs. The Commission is the Unions executive organ. It consists of 27 commissioners – one from each member state – sitting in their private capacity. The Commissions primary tasks is suggesting new legislation, enforcing legislation existing, and representing the EU externally.

One way of enforcing EU law is through the European Court of Justice (ECJ). As the supreme court of the EU it primarily handles two types of cases: Firstly, the so-called enforcement actions,2 which are brought by the Commission against a member state that it considers not to be fulfilling its obligations under EU law. Secondly, depending on the case, national court may either have a right, or be obliged, to ask the ECJ for its opinion on the relevant EU law. The Court then gives a preliminary ruling which will be binding upon the national court.3

The third body worth mentioning is the Council. It  consists of representatives from the member states, and has the final word on EU legislation and international agreements between the Union and non-member states. It also approves the budget and coordinate the economic, foreign and defense policies. Votes in the Council are weighed according to the size of the countries, and binding legislation may be passed without necessarily requiring unanimity. Even though the council resembles the main organs in other international organizations, it differs by being able to pass binding legislation upon member states without unanimous consent.

Finally we have the Parliament. It consists of several hundred members directly elected by nationals of the member states. It is supposed to provide democracy to the Union. However, few people care about, or even participate in, the European Parliament elections. In addition, there are no parties in the traditional sense, but rather coalitions of similar national parties. If one adds that the parliaments limited powers to the mix, one can easily see that the democratic alibi of the Union is lacking in accountability and effectiveness. However, since the Lisbon Treaty entered into force in 2009, the Parliaments powers when passing legislation has increased somewhat. While the legislative power in the end rests with the Council, the procedure today has a larger degree of cooperation built into it.

Legislation that stings

It is not just the layout of the organs that give the EU its’ supranational character. Much due to the the ECJ, which has followed a line of jurisprudence gradually extending the Union powers on behalf of the member states, EU law has become a powerful tool. Since the 1960s the ECJ has held that EU legislation has both direct effect in, and enjoy supremacy over, national law.4

This jurisprudence has in turn been accepted by virtually all national courts. Thus, implementing measures by individual member states are not necessarily needed for citizens to be able to rely on EU law before national courts. Since EU law may also be used to annul national legislation it has a sting to it that’s unmatched by other international organizations.

EU and human rights

Due to the broad scope of contemporary EU law, some of the legislative acts give rise to human rights concerns. Starting out as an economic union, human rights did not really have a place in EU law in the early years. Through the case-law of the ECJ, however, an EU concept of human rights evolved in the first couple of decades after the union was founded.5

When creating and interpreting the EU concept of human rights the ECJ was inspired by both national constitutional traditions and international conventions. Especially the European Convention of Human Rights was held in high regard. At the turn of the millennium the EU also proclaimed its own Charter of Fundamental Rights, which finally became legally binding through the Lisbon treaty in 2009.

But, as we shall see in my upcoming articles, the EU concept of Human Rights had its limits. Before we can investigate these limitations in detail a brief examination of the European Convention of Human Rights, and its system of enforcement, is necessary. That will be the subject of the next article.


Stian Øby Johansen is from Norway, and works as a Research Assistant at the Centre for European Law at the University of Oslo. He is currently writing his Master thesis on the European Union’s forthcoming accession to the European Convention on Human Rights.

  1. Trevor Hartley, The Foundations of European Union Law (7th edn, OUP 2010) 11
  2. TFEU art. 258
  3. Treaty on the Functioning of the European Union (TFEU) art. 267
  4. Case C‑26/62 Van Gend en Loos (1963); Case C‑6/64 Costa v ENEL (1964)
  5. See, among others: Case 29/69 Stauder v. City of Ulm (1969); Case 4/73 Nold v. Commission (1974)

the European Convention on Human Rights

The previous article in this series focused on the European Union. However, the EU is not the only international organization in Europe promoting a broad European integration. The Council of Europe (CoE) is another influential organization in Europe. It was founded in 1949, which thus makes it older than the EU.

In similar fashion as the EU, it has a broad purpose. This is due to the fact that the allied powers considered a broad political, economic and social integration necessary to prevent another atrocious inter-state war in Europe. Therefore, according to article 1(a) of its statute,1 the aim of the CoE is “to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress.”

Treaty-driven integration

Despite its broad aim, the powers of the CoE are limited. While the EU is characterized as an organization of supranational character, the CoE is, in contrast, a fairly traditional international organization. Membership in the CoE does not entail any transfer of sovereignty. Consequently, the CoE and its organs may not bind its member states without consent.

Nevertheless, the CoE has still played a central role in the legal integration of Europe. This is mainly due to the fact that it has facilitated the conclusion of more than 200 treaties between its member states. Many of these have been highly successful. Due to the purpose of this series of articles I will only discuss what is arguably the most famous of these treaties, the European Convention of Human Rights.

Protecting Human Rights across Europe and beyond

The European Convention on Human Rights (ECHR)2 was signed in Rome on the 4th of November 1950. Today, sixty-one years and fourteen amendments later, it is generally considered to be the worlds most advanced international system for human rights protection.

The emphasis here is on the word “system.” In itself, a human rights treaty is just a document – plain text. The ECHR on the other hand has a well-functioning3 court system where individuals may file complaints against their member states after exhausting all domestic remedies. And, if he prevails, the European Court of Human Rights (ECtHR) is empowered to afford just satisfaction to that person. Even though the execution of these judgments is subject to the consent of the state violating the Convention, they are generally complied with.

The Court has a jurisdiction covering all core civil and political rights. The territorial scope of jurisdiction is also broadly defined in ECHR art. 1: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” (emphasis added). This provision is interpreted by the ECtHR as to not only cover acts within the territory of a state, but also acts committed abroad if a High Contracting Party exercises all or some of the public powers there. An example of this can be found in the famous Al-Skeini and Al-Jedda cases, decided by the ECHR this summer, where the United Kingdom was convicted for acts committed by their armed forces during the occupation of Iraq.

The ECHR as a living instrument

The Court has not restricted its expansive reading of the ECHR to the article on territorial scope of jurisdiction. The ECtHR has been developing the rather vague provisions in the Convention actively, across the board. It puts great emphasis on the fact that the ECHR is  a “living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today”.

Thus, its method of interpretation often takes the form of so-called inductive-deductive reasoning. When using this two-step process, the ECtHR first looks at the national legislation of the High Contracting Parties in order to induce a common European standard. This common standard is then used as an interpretive tool in order to determine the exact scope of the relevant ECHR right.

By using such an approach the Court is also able to develop its case law over time, in accordance with the changing national laws. Furthermore, it enables the Court to iron out differences in the human rights protection. If you are the only country in Europe having a blanket ban on prisoner voting – as the UK – chances are that the ECtHR will strike it down as a violation of the right to vote.4

Due to its “living instrument” doctrine the Court is often criticized for being a judicial activist. This critique is, at least to some extent, understandable in light of the Court’s evolutive interpretation. Nevertheless, the use of the common practices of the High Contracting States is a relevant mean of interpretation under VCLT art. 31(3). Either, one can see it as an application of the “subsequent practice” rule in (c), or, perhaps more convincingly, as “any relevant rules of international law in the relation between the parties” under (c), due to the fact that general principles of (national) law are to be regarded as a source of international law.

Reform and the accession of the EU

The picture painted above, of the ECtHR as the driving force behind the development of the Convention is only partially correct. In the last 60 years 14 additional have been enacted. These either amend the ECHR itself, or supplement it with additional rights. Large institutional changes have been made. The ECHR, for example, only handled a very limited number of applications before it was reformed in the 1990s.

The most recent reform happened with protocol 14 which, after being blocked by Russia for several years, entered into force July 2010. In addition to improving the efficiency of the ECtHR this protocol also provides for the accession of the European Union to the convention.

The accession of the Union will be the topic for the next, and final, article in this series. After giving you an (superficial) overview over the most important institutions and instruments on the playing field we will look at the accession more in detail. Is the Union, as an international organization even competent to accede? And what are the implications? These are the sort of questions we will be put forward in that article.

  1. Statute of the Council of Europe, ETS No. 1
  2. Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5
  3. Some might contest the fact that the ECtHR is “well-functioning” on the basis that it currently has over 150 000 pending applications. I will not deal with that issue in depth in this article. But, it should be mentioned that the Court  in most other aspects functions better than comparable international institutions. One could easily see astronomical pile of applications as indicating that the Court is a victim of its own success.
  4. As was the case in Greens and M.T. v. UK, applications nos. 60041/08 and 60054/08

the European Union’s accession to the ECHR

In this third and final article about legal integration in Europe the subject is the EU’s forthcoming accession to the ECHR. Those not already familiar with the organizations in question – the European Court of Human Rights, the Council of Europe and the European Union – are advised to read the two previous articles (here and here) in this series.

At the time of writing final negotiations are still ongoing regarding the EU’s accession to the ECHR. Before outlining the negotiation process and the effects the accession will have, it is necessary to understand exactly who the parties are, and how they are represented at the negotiating table. In this regard it is important to keep in mind the fundamentals: the EU as an international organization is acceding to the ECHR – a human rights treaty. EU acts will therefore be subject to external judicial review by the European Court of Human Rights (ECtHR) – a treaty body under the ECHR.

Negotiations: parties and playing field
The accession agreement is to be concluded between all 47 members of the Council of Europe (CoE), on the one hand, and the EU, on the other. There is a high degree of overlap with regards to membership between the two organizations – all 27 EU members are also members of the CoE. In practice this means that those 27 states have interests on both sides of the negotiating table. As for the states involved it thus seems more like a negotiation between the 27 EU-members and the 20 non-EU members among the CoE states.

This is, however, only half the truth. Both the international organizations involved have a certain degree of autonomy, and their own interests to protect that cuts across the state interests. While the Council of Europe is not itself formally party to the negotiation, they have have provided the forum for negotiation, and provided the negotiators with a secretariat. Recognized as the “benchmark of human rights, the rule of law and democracy in Europe”,1 the CoE fears the development of competing human rights standards within the EU. Potentially, this could lead to a two-tier human rights protection in Europe, and put the CoE on the sideline politically. EU accession, on the other hand, would entail a submission of the Union to the ECHR standards, thus solidifying the CoE’s position as the human rights “benchmark”.

Last, but definitely not least, the European Union as an international organization with a large degree of autonomy is a key player in the negotiations. It will become one of the signatories to the accession agreement, is directly involved in the negotiations through its organs, and consists of a number of bodies and agencies staffed by persons sitting in private capacity. Despite its strong position in Europe politically, its vast resources, and the fact that it has its own human rights regime, the Union still considers the rapid accession to the ECHR as a key priority.

Historical and political reasons for accession
To understand why the Union is willing to submit itself to the external judicial review of the European Court of Human Rights – a de facto Council of Europe organ – one must look to the history of the Union. When it was conceived2 in the early fifties there were talks of creating formal ties between it and the already existing CoE, including an accession to the ECHR. However, the idea of a greater political Union in failed. Instead a purely economic Union was created, and human rights were left out of the original EU treaties.

However, it did not take a long time before litigants from countries with proud constitutional traditions challenged Union legislation on human rights grounds before national courts. Initially the European Court of Justice (ECJ) did not budge.3 It also rejected the argument that EU law contained any human rights principles.4

Nonetheless, the litigants persisted, and a political solution to this conflict was not found, despite strong criticism from several angles. An accession to the ECHR was also deemed impossible at the time, due to the fact that France – a founding EU member – was not party to it. Finally, in 1969 a judicial solution as found when the ECJ gave in to the criticism by recognizing that fundamental human rights are a general principle of EU law.5

While the creation of an EU system of human rights protection by the ECJ gave the Union some breathing room, it was far from the coherent and codified system of the ECHR. These rights were developed ad hoc on a case-by-case basis, and were thus hard both to interpret and apply.

Consequently, it was still plenty of room to criticize the EU’s system of human rights protection. And, ss the EU expanded its field of operations in the past few decades, the critical voices grew in numbers. The codification of the Union’s human rights principles in the non-binding EU Charter of Fundamental Rights in 2000 did not manage to turn the public opinion around. Even though the Lisbon treaty provided the Charter with binding legal effect in late 2009, the EU still lacks the hard-earned legitimacy of the ECHR. Its human rights protection is still seen as second class by many.

This has become even more pressing in recent years when the EU has expanded heavily into the area of foreign affairs. With a easily criticizable system of human rights protection at home, it is harder to push compliance with such rights toward other international actors. As a consequence, EU is keen on acceding to the ECHR as quickly as possible to tap into the success and legitimacy of the Convention system, including its Court.

Legal and technical reasons for accession
There are also more technical legal arguments for an accession, rooted in the fact that all EU members are also parties to the ECHR. This can lead to norm conflicts between the two legal regimes. Furthermore, the ECJ and the ECtHR will often have jurisdiction to deal with the same factual matters.

As a result of this, there is a real and serious risk of divergent interpretation. States could therefore be faced with a dilemma. There could potentially be situations where the national state is left to choose towards whom it should breach its obligations. Take for example an EU legal act that is incompatible with an ECHR right: Should the state prioritize human rights, and face the wrath of the Commission at the ECJ? Or should it uphold EU law, and possibly face an array of individual complaints at the ECtHR?

An accession could mitigate the risk of divergent interpretations, as both courts would have a common legal framework. Furthermore, the ECtHR is to become a court of external judicial review in relation to the Union – comparable to that of a national constitutional court. This will make it possible to solve instances of divergent interpretation. With the formal ties in place, there is little doubt that the ECJ will follow the ECtHR’s jurisprudence. If not, the Union would loose face, and incur international responsibility in the ECtHR, something it seeks to avoid at all costs.

Another more technical reason in favor of accession is the need for correct attribution of responsibility between the EU and its member states. At present it is possible for individuals to challenge national acts taken in compliance with EU law before national courts. These cases can, and do, end up in the ECtHR as a case between the individual and the EU member state implementing an EU act.

While the ECtHR has held that the EU cannot be brought before it due to it not being a party to the Convention,6 it has insisted that the national states in principle retain responsibility for the sovereign powers transferred to the Union.7 The consequence of these statements of principle could potentially lead to the ECtHR finding a national state responsible for implementing EU acts, regardless of the fact that it is obliged to implement it, and may not even have voted in favor of it.8

An accession would make it possible to allocate responsibility correctly. If the violations is inherent in the relevant EU legislation, then the Union will be found responsible. On the other hand, if the EU legislation provides the member states with a margin of discretion wide enough to enable human rights-compliance, they will be held responsible for any non-compliant implementation.

Finally, an accession would make it possible to bring human rights cases that does not involve national acts before the ECtHR. This would include the cases there EU organs have acted directly. Examples include labor disputes, and enforcement of European competition law.

Negotiations: status
The above-mentioned reasons has made accession a pressing issue for the Union. As soon as the legal basis for such an accession was firmly in place,[TEU art. 6(2), ECHR art. 59(2).] negotiations began in the summer of 2010. The negotiations took place in the context of a CoE working group, which presented a draft Accession Agreement a year later, in summer 2011. It was then expected that the negotiations would be formally concluded within a couple of months.

However, during a CoE meeting in October the British and French delegations raised objections against the negotiated draft. This halted the negotiations while the 27 EU member states try to iron out their differences. This process is ongoing, and despite the initial protests by the French and the British, it seems like an agreement will be reached on the final details within a relatively short amount of time.

Upon agreement by the EU countries there will be another round of negotiations between the 27 EU members and the 20 non-members. After that the ECJ, and possibly the ECtHR, will be asked to give their opinions on the draft. It is not given that the ECJ will accept that the ECtHR encroaches upon its exclusive jurisdiction and the Union’s autonomy. But, it is hard to guess what the ECJ will decide, as its case-law regarding treaty-made external judicial institutions is somewhat confusing. I will thus not venture further into this topic, as it would require an article of its own.

On the other hand, if the court opinions are indeed positive, the draft will be adopted, and opened for signature and ratification by all 47 CoE member states, as well as the EU.

The Accession Agreement – solutions and new issues
The current drafts puts great emphasis on the principle that the EU will become a party to the ECHR on an equal footing with the states parties to the Convention. Thus, the EU’s accession will resolve many of the problems outlined above.

However, as two complex international legal orders are to be integrated, difficulties are bound to arise. To give the readers of The View From Above a taste of what’s to come, I will deal with one of the issues arising in connection with the ECtHR’s review of EU acts.

In order to say something about judicial review by the ECtHR over EU acts following accession, we must look to the present situation. As mentioned above, the ECtHR is capable of reviewing national acts implementing Union law. Nevertheless, such review has been severely limited. Thus, when implementing Union acts, the national states are given a significantly broader margin of appreciation than otherwise.

This is the result of the three-step test the ECtHR applies in these cases. First, it considers that the Union as a whole provides an “equivalent protection” of human rights, while underlining that equivalent means comparable, not identical.9 Second, it adds that when such equivalent protection is provided by the EU, there is a presumption that the state in question has not departed from the ECHR’s requirements “when it does no more than implement legal obligations flowing from its membership of the organisation”.10 Third, this presumption may only be rebutted if the protection of the ECHR rights in an individual case is “manifestly deficient”.11

The ECtHR’s rationale for this three-step test is not crystal clear. It seems to be an attempt to balance the “growing importance of international cooperation and of the consequent need to secure the proper functioning of international organisations” with the importance of human rights compliance.12 However, it might just as well be seen as an non-principled attempt to avoid an open conflict with the ECJ.

As the accession of the EU to the ECHR is to be primarily based on the equal footing principle, it seems likely that this doctrine will be scrapped. If the Union is to be seen as an equal contracting party, there is no reason for the ECtHR to provide it with a large margin of appreciation. This must at least be clear for cases where the Union participates in the proceedings. Here the rationale is without basis following an accession.

But, what if the Union does not join the proceedings? This will, at least in theory, be possible under the latest draft Accession Agreement. It ultimately leaves it to the Union’s free will if it wants to join a case against an EU member state pending case before the ECtHR that involves Union law.13 If the Union does not, the ECtHR would have a hard nut to crack.

Should it perform a full scrutiny of whether EU law is compatible with the ECHR, and attribute the responsibility to the member state that happened to be chosen by the individual applicant as respondent in that case? Should it rather dismiss the application, as it concerns the act of another High Contracting Party – namely the Union – than the one chosen as respondent? Or should it use the three-step test outlined above?

There is no clear cut answer to this question. Neither does it seem likely at the present time. As long as the Union is still set on enhancing its image in the field of human rights, it is highly unlikely that it would refuse to join such proceedings. However, it is given that the tide will turn. A non-cooperative Union would put serious strains on the ECtHR’s judicial review.

No accession without difficulties – and no coherence without accession
As should be obvious from the above, the EU’s accession to the ECHR can be equated with the opening of Pandora’s famous box. Nevertheless, these difficulties seem to be necessary in order to create an integrated and coherent human rights framework in Europe.

Furthermore, the current state of affairs is neither coherent nor easily understandable. Even if it might lead to some difficulties, it should be possible to iron those out, as there will be a formal link between the two courts. Hopefully, the end result will be easier to grasp for laypeople than the complex, multi-layered and fragmented system of human rights protection we have in Europe today.

  1. Memorandum of Understanding between the EU and the CoE (available at: http://www.coe.int/t/der/docs/MoU_EN.pdf), para 10
  2. Then called “the European Community”, which through a complex history evolved into the European Union. To avoid these historical complexities, which are without interest in the context of this article, I refer to the EU using the contemporary terms for the organization and its organs.
  3. Case 1/58 Stork v. High Authority (1959)
  4. Joined Cases 36, 37, 38 and 40/59 Geitling v. High Authority (1960)
  5. Case 29/69 Stauder v. City of Ulm (1969)
  6. CFDT v. the European Communities (dec.), no. 8030/77 (1978); M & Co v. Germany (dec.), no. 13258/87 (1990)
  7. M & Co v. Germany (dec.), no. 13258/87 (1990); Bosphorus Airways v. Ireland (GC), no. 45036/98 (2005) para 152
  8. See TEU art. 16(3), TFEU art. 294. The treaty of Lisbon introduced qualified majority voting in several areas where human rights issues are likely to be raised, such as the “Common foreign and Security Policy” and important parts of the “Area of Freedom, Security and Justice”.
  9. Bosphorus Airways v. Ireland (GC), no. 45036/98 (2005) para 155
  10. ibid. para 156
  11. ibid.
  12. ibid. paras 150-154
  13. Draft Accession Agreement (available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/CDDH-UE/CDDH-UE_MeetingReports/CDDH_2011_009_en.pdf) art. 3(5).

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