The European Union's Accession to the ECHR: As Seen from Strasbourg

151 Pages Posted: 7 Sep 2012

See all articles by Stian Øby Johansen

Stian Øby Johansen

University of Oslo - Centre for European Law

Date Written: September 6, 2012

Abstract

The European Union is one of the most powerful and autonomous international organization in existence. But the powers of the Union are not subject to external judicial review – despite the fact that all of its 27 member states have submitted themselves to the jurisdiction of the European Court of Human Rights (ECtHR).

This is set to change. Following the entry into force of the Treaty of Lisbon, the Union is obliged to accede to the European Convention on Human Rights (ECHR). Negotiations on the modalities of accession hit a critical point in the summer of 2011, when the expert group tasked with drafting an accession treaty published its final draft. Further negotiations on the basis of this draft are expected to conclude in 2012.

Even prior to the Union’s accession, the ECtHR has had to deal with cases involving Union acts. Such cases raise delicate issues. In addition to their obligations under EU law, the member states also have obligations under the ECHR. There is an obvious potential for conflict between the two. But, if a Union act is inconsistent with the ECHR, the EU member states will nevertheless be obliged under Union law to implement it. In other words, they are forced into a conflict of international obligations.

As this paper shows, the ECtHR has approached these delicate issues very cautiously. It has sought to solve the dilemmas faced by the EU member states by granting them a margin of discretion so wide that it may almost be characterized as a de facto immunity. While this approach might have prevented an immediate crisis between the Union’s and the ECHR’s legal orders, it is argued that the cost of this solution is a reduced effectiveness of the European system of human rights protection.

The ECHR is written with state parties in mind, and relies heavily on concepts such as territory, sovereignty and nationality. However, the Union is not a state, but an international organization comprised of 27 member states. The Accession Agreement is supposed to act as a lubricant between the Union's multi-leveled system of governance and the ECHR system. Drawing on the draft Accession Agreement, this paper analyzes how the ECtHR will apply the basic concepts underlying the Convention in relation to the Union – including issues such as attribution of responsibility between the Union and its member states, the level of scrutiny applicable to Union acts, and the scope of the principle of subsidiarity.

This paper is ~40,000 words in length, and was handed in as a Master's thesis at the University of Oslo, Faculty of Law in April 2012.

Keywords: EU, ECHR, ECtHR, European Union, European Court of Human Rights

Suggested Citation

Johansen, Stian Øby, The European Union's Accession to the ECHR: As Seen from Strasbourg (September 6, 2012). University of Oslo Faculty of Law Research Paper No. 2012-29. Available at SSRN: https://ssrn.com/abstract=2142446

Stian Øby Johansen (Contact Author)

University of Oslo - Centre for European Law ( email )

P.O. Box 6706 St. Olavs plass
N-0130 Oslo
Norway
+47 93462203 (Phone)

HOME PAGE: http://www.jus.uio.no/europarett/english/people/aca/stiaoj/index.html

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