Monday 8 October 2012

New Academic Articles on Al-Jedda, Al-Skeini, and EU Accession to ECHR

The most recent issue of the Military Law and the Law of War Review (Revue de Droit Militaire et de Droit de la Guerre, vol. 50, nos. 3-4 of 2011) has been published. It includes an 'agora' / special thematic part on the Al-Jedda and Al-Skeini judgments of the European Court of Human Rights, with the following contributions:

  • Frederik Naert, The European Court of Human Rights’ Al-Jedda and Al-Skeini Judgments: An Introduction and Some Reflections
  • Francesco Messineo, Things Could only Get Better: Al-Jedda beyond Behrami
  • Kjetil Mujezinovic Larsen, ‘Neither Effective Control nor Ultimate Authority and Control’: Attribution of Conduct in Al-Jedda
  • Anne-Marie Baldovin, Impact de la jurisprudence récente de la Cour européenne des droits de l’Homme sur la planification et l’exécution des opérations militaires à venir: Application extraterritoriale de la Convention, imputabilité des faits des troupes et fragmentation du droit international
  • Heike Krieger, After Al-Jedda: Detention, Derogation, and an Enduring Dilemma
And professor José Manuel Cortés Martín, University of Pablo de Olavide, Sevilla, has published an article entitled 'Sur l’adhésion à la CEDH et la sauvegarde de l’autonomie de l’ordre juridique de l’Union dans l'identification du défendeur pertinent: Le mécanisme du codéfendeur'  in the Revue du Droit de l'Union Européenne. The article is in French, but this is the abstract in English:

After the Lisbon Treaty and the Protocol No 14 annexed to the ECHR have come into effect, the obstacles that remained for the European Union accession to this important regional instrument for the protection of human rights have been cleared. This must allow not only completing a legitimate and important aim, but ending the contradictions posed by the current situation in which the ECHR exerts an indirect control of EU Law through the intermediary of EU Member States. The accession should avoid this situation, while safeguarding at the same time the autonomy of EU law. From the perspective of the capacity of the Union and its Member States to be sued, it is necessary to avoid ECHR interferences in the distribution of powers, whose interpreter must be uniquely the ECJ. Therefore it seems essential to provide a kind of collective intervention in ECHR proceedings every time that Union law is directly or indirectly questioned. In the present author’s view, however, the absence of such a procedural provision does not make impossible an adequate representation of the EU interests. This aim could be achieved through the requirement of unity in the international representation of the European Union comprised in the principle of closed cooperation between the Member States and the UE institutions. As proof of this one can point to the experience of more than fifteen years of cohabitation of the Union and its Members States in the WTO and its dispute settlement system. Finally, the principle of autonomy of EU law also raises some concerns in relation to substantive compatibility with ECHR rights and guarantees. This debate has become especially prominent with regard to the application by the Commission of European Competition Law. The answer to this question can only be found in the rich and comprehensive Case-law developed by the ECHR. However, without the specific circumstances of a particular case, it might be found, at most, evidences that could support one or another position. Any projection is lacking of a crucial element, which we have tried to highlight in this work. The current ECHR Case-law is based on States parties, their powers and their exercise in the framework of democratic internal procedures. However, the ECHR Case-law does not keep into account, at least in a structural way, the peculiarities of the European integration process. It is not hard to imagine, however, that the ECHR will be sensitive to the peculiarities of this process, taking into account the specificity of the Union and its legal order.