Although not likely to attract the same attention as an inter-governmental conference, the European Union recently commenced formal negotiations with the Council of Europe on the issue of EU accession to the European Convention on Human Rights (ECHR). This was provided for in the Lisbon Treaty and a Protocol to the ECHR and means that the EU will become a party to the ECHR in the same way that each of its Member States has since the 1950's. The result will be that the EU can be brought before the European Court of Human Rights to answer accusations of a breach of the ECHR once all relevant EU remedies have been exhausted. It will also be entitled to nominate a judge for election to the European Court of Human Rights.
A complicating factor in all of this is the juristic nature of the EU which has legal personality but, unlike all other parties to the ECHR, is not a state. This will require adjustments to provisions of the Convention that, for example, provide for limitations on rights in the interests of 'national' security. It will also raise interesting questions as to whether the EU will appear as co-respondent with States Parties to the Convention whose actions or omissions are impugned as alleged breaches of the ECHR.
The EU and Council of Europe and their respective courts - the European Court of Justice in Luxembourg and the European Court of Human Rights in Strasbourg - are commonly confused. This confusion may not be lessened as a result of the accession process, especially when one considers the further complicating factor of the EU Charter of Fundamental Rights, also referenced in the Lisbon Treaty, which provides for a more extensive catalogue of rights than the ECHR, albeit in a less legally defined manner.
The Charter is addressed to EU institutions and to Member States of the Union only when implementing EU law. It might therefore be argued that Member States are subject to the Charter when implementing EU law and to the ECHR when acting on their own initiative. In practice it is difficult to distinguish between these two situations. That confusion is further exacerbated when one considers the various domestic constitutional imperatives under which states act with regard to human rights which are explicitly respected in the text of the Charter. In the case of Ireland this is additionally complicated by the fact that the ECHR has been given further effect in domestic law but subject to the 1937 Irish Constitution.
Many arguments are made in favour of EU accession to the Convention, not all of them convincing on what ought to be the animating imperative of strengthening human rights protection in Europe. It may end up as yet another symbolic gesture but such gestures can yield unanticipated and even unintended promise.
The ECHR and the case law of the European Court of Human Rights in Strasbourg are routinely used by the European Court of Justice in Luxembourg even to the extent of re-considering its own previous case law. The jurisprudence of the Luxembourg court is also influential on the Strasbourg court. This was particularly significant in the Strasbourg court's deliberations in transsexual cases.
In a 2005 case (Bosphorus v. Ireland) involving the impounding of aircraft, that started with a reference from the Irish Supreme Court to the European Court of Justice, the European Court of Human Rights ultimately had to consider the human rights dimension of the issues raised. It found that ECHR obligations could not be undermined by a member state fulfilling other international obligations entered into by the European Union and binding upon that state. In other words, the Strasbourg court was happy to consider a question that had already been considered by the Luxembourg court, albeit through a slightly different lens, thus providing an outer layer of human rights review.
So what is to be gained by accession of the EU to the Convention, in terms of substantive human rights protection, that cannot be achieved by more directly reforming the jurisdictions of the Luxembourg and Strasbourg courts both of which courts already acknowledge jurisdictional complementarities? More pragmatically, it might be asked if accession will exacerbate or improve the existential crisis that has deepened for the Strasbourg court arising from its limitlessly burgeoning case load despite a number of attempts to address this, most recently at a special conference organised by the Council of Europe at Interlaken in February 2010.
The co-existence of a Charter whose domestic legal status is, for the time being, indeterminate, and a substantively weaker but more legally established Convention will give rise to intriguing legal disputes. Whether any of this will add value to human rights protections in Europe is an open question.
Of course it makes constitutional sense for the European Union to have a strong bill of rights but, in the effort to avoid the federalising potential of such a measure, a rather confusing rights regime may be established. It is to be hoped that this does not harm the already fragile supranational system of human rights protection based in Strasbourg that has existed admirably since the 1950s. More importantly, perhaps, it should not generate new unproductive tensions between national apex courts and the two European courts.
Donncha O'Connell is a lecturer in the School of Law, NUI Galway and, currently, a Visiting Senior Fellow at the Centre for the Study of Human Rights, LSE. He is also the Editor of the Irish Human Rights Law Review published by Clarus Press.