A number of new papers on the ECHR have recently been put on the Social Science Research Network. Here is a short overview:
* Jörg
Polakiewicz, ‘EU Law and the ECHR: Will EU Accession to the European Convention on Human Rights Square the Circle?’ (working paper)
The
article examines how the draft Agreement on Accession of the EU to the
ECHR, which was agreed at the negotiators’ level on 5 April 2013, deals
with issues of EU law. The rather complex clauses on attribution and
responsibility as well as procedural arrangements such as the
co-respondent mechanism and the prior involvement of the ECJ can be
explained by the concern to accommodate the specific characteristics of
the Union and Union law. At the same time, it is necessary to preserve
the essential features of the Convention system, such as the authority
and prerogatives of the ECtHR, the equal treatment of Contracting
Parties and the subsidiary nature of the protection mechanism. The
importance and urgency of EU accession to the ECHR to achieve legal
certainty and coherence are underlined. The recent fundamental rights
case law of the ECJ reveals a trend to interpret the provisions of the
EU Charter usually in isolation from the jurisprudence emerging from
other human rights instruments. The ECJ draws only sporadically on
international human rights sources, insisting that it remain the final
and authoritative arbiter of their meaning and impact within the EU. ECJ
case law focuses increasingly on the EU Charter, thus raising doubts
about the continuing convergence between the two European human rights
systems. Against this background, rapid EU accession to the ECHR becomes
even more important. The draft accession agreement represents a fair
compromise between the different interests at stake. The implementation
of EU legislation adopted within the framework of the area of freedom of
justice which relies on mutual recognition and trust raises serious
human rights issues. The ECtHR may have a useful role to play in
reminding the EU and its member states that mutual recognition should
not undermine the core values on which it is founded.
* Federico
Fabbrini and Joris Larik, ‘The Accession of the EU to the ECHR and its Effects: Nada v Switzerland, the Clash of Legal Orders and theConstitutionalization of the ECtHR’ (working paper)
After
years of negotiation, in April 2013 the European Union (EU) and the
member states of the Council of Europe reached consensus on a draft
Agreement on the Accession of the EU to the ECHR. This event represents a
milestone development for the protection of fundamental rights in the
EU. But what are the effects of accession on the ECHR and its court –
the European Court of Human Rights (ECtHR)? This paper argues that the
accession of the EU to the ECHR will represent a formidable boost for
the constitutionalization of the ECtHR. By interpreting
constitutionalization here as a process of increasing autonomy vis-à-vis
international law, the paper explains how the Accession Agreement
creates strong institutional pressures for the ECtHR to raise its
standards of protection up to the level set by the Court of Justice of
the EU (CJEU), or beyond. This race to the top in human rights
protection, however, may come at the price of decreased abidance to
international law, including the supremacy of the Charter of the United
Nations (UN). To exemplify this argument, the paper considers the recent
ECtHR Grand Chamber judgment in Nada v. Switzerland concerning the
legality of counter-terrorism regime established by the UN Security
Council. In its ruling the ECtHR found that Switzerland had violated the
ECHR in implementing the UN counter-terrorism sanctions and, albeit
without calling into question the action of the UN itself, strongly
reaffirmed the primacy of the protection of human rights under the ECHR
system. Through a critical discussion of the decision, the paper
emphasizes how the ECtHR was squeezed between the willingness to avoid a
direct clash with the UN and yet the unwillingness to lose the pace set
by the CJEU in its celebrated Kadi decision. We conclude from this that
Nada can only be rationalized in light of the looming accession of the
EU to the ECHR and the ensuing pull towards the constitutionalization of
the ECtHR.
* Gregor Puppinck, ‘Abortion and the European Convention on Human Rights’, Irish Journal
of Legal Studies, vol. 3(2), p. 142 (1 July 2013).
In
recent years, the European Court of Human Rights has ruled on a number
of cases dealing with the issue of abortion, providing a sufficient
corpus of jurisprudence which may be analyzed in a consistent manner. A
number of analysts, on both sides of the abortion debate, are not
satisfied with this case-law. This article aims not to discuss each
ruling of the Court case by case, but to try to find, in an objective
and systematic manner, the coherency of the jurisprudence of the Court,
and in doing so, to present a reasoned legal account of abortion under
the Convention.