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The EU Accession to the ECHR pp 3–34Cite as

Introduction to the Book

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Abstract

This book presents a very specific and narrow approach to the core questions of the EU accession to the ECHR (compare Fig. 1.1 to Fig. 1.2). First of all, it is important to mention the fact that there is rather limited and mostly general literature—if a few articles might be described as literature—covering the Draft Accession Agreement of the EU accession to the ECHR, most of which have been published some time ago to be relevant today. Therefore, as this topic is new this book attempts to consult not merely every possible source on the issue, but also intends to build upon them to produce a novel scientific result at the end of this research project. One assumption nevertheless needs be made: the novelty of the topic itself does not reduce the scientific quality that the arguments need to reflect. Furthermore, the book—at some points and in a rather limited framework—takes on board the task of examining not only how things stand at the theoretical level regarding implications of EU accession to the ECHR, but also how they might (de lege ferende) become practically exposed to the current and upcoming legal implications on this field of law and practice. Therefore, central attention is given to examining the factual problems and/or benefits that will result from EU accession to the ECHR. This book aims to provide new, more developed knowledge in the field, and assess concerns within advanced argumentative frameworks to elucidate the mechanics and legal effects of EU accession to the ECHR.

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Notes

  1. 1.

    Cf.: Joris and Vandenberghe (2008–2009), p. 2, who asserts that EU and Council of Europe are natural partners; On the argument that accession will reconcile the two courts, see: Balfour (2005), p. 22; On the potential conflicts between the two courts, see also: Defeis (2000–2001), p. 317; See also: Wetzel (2003), p. 2843, which takes Hoechst and Konstantinidis v. StadtAltensteig-Standesanicases to demonstrate how Luxembourg Court and Strasbourg Court may prove divergent at interpreting identical rights.

  2. 2.

    See e.g.: Olsen (2009–2010), p. 56.

  3. 3.

    Paul Gragl’s book on this topic has a rather different research question, namely ‘whether and how accession and the system of human rights protection under the Convention can be effectively reconciled with the autonomy of European Union law.’ See: Gragl (2013), p. 8/9. Although Gragl does not provide in his book each chapters’ specific research questions—namely, the subsidiary research questions to the central research question—one may understand that he undertakes a normative burden to show paths of reconciling both legal regimes. Contrary to this, my central research question—and the specific/subsidiary research questions—have another purpose: that of examining the effect of cooperation/competition between the two regimes of law in the context of EU accession to ECHR (and specifically to the DAA), something that centrally covers also the examination of a) autonomy of EU law in the context of the Convention’s credibility of human rights protection, and, b) the functionality of the DAA mechanisms in light of the proclaimed objectives of both legal orders and the DAA itself. My book, therefore, is not that centrally concerned about the ‘reconciliation’ of EU law autonomy with the Convention’s human rights protection, but rather with the examination of loopholes where that autonomy may become encroached, in addition to the question of functionality of the DAA mechanisms (which not always triggers the question of autonomy). The question of my book being more about the examination of the nature and scope of ‘effect’ that will be produced as a result of cooperation/competition between the two legal orders in the context of the DAA, one may rightly argue that it is moderately different in many aspects with Gragl’s research question and intended outcome. In terms of outcome, therefore, these two books come to rather different general conclusions: while Gragl, on basis of his research question, finds way to reconcile and concludes that the DAA does not interfere to EU law autonomy, my book concludes rather the opposite, showing where loopholes remain both in terms of EU law autonomy concerns but also impaired-functionality concerns. One final difference between the two books is the fact that Gragl looks at the DAA very much from a micro perspective, while I also look at it from a macro perspective, taking account of similar experiences and benchmarks from international law and courts (and global law) which Gragl does not.

  4. 4.

    Thym (2013), p. 1.

  5. 5.

    Cf.: Gragl, from a different perspective, comes to the conclusion that EU accession to ECHR ‘will have an unprecedented and enormous impact on the existing multi-level framework of human rights protection in Europe […]’. See: Gragl (2013), p. 278.

  6. 6.

    Callewaert (2014), p. 22.

  7. 7.

    Quoted from: Barbera (2012), p. 9.

  8. 8.

    On the latter, see e.g.: White (2010), p. 435; See also: Jones (2012), p. 5; Odermatt (2014), p. 9.

  9. 9.

    Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. Done at Vienna on 21 March 1986. Not yet in force. Official Records of the United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, vol. II (United Nations publication, Sales No. E.94.V.5); and, Vienna Convention on the Law of Treaties. Signed at Vienna, on 23 May 1969 (UN Doc. No. 18232). Entered into force on 27 January 1980. Available at: https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf.

  10. 10.

    ILC Responsibility of States for Internationally Wrongful Acts 2001 (ILC Articles on State Responsibility). Text adopted by the Commission at its fifty-third session, in 2001, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session. The report, which also contains commentaries on the draft articles, appears in Yearbook of the International Law Commission, 2001, vol. II (Part Two). Text reproduced as it appears in the annex to General Assembly resolution 56/83 of 12 December 2001, and corrected by document A/56/49(Vol. I)/Corr.4.

  11. 11.

    ILC Draft Articles on Responsibility of International Organizations. Adopted by the International Law Commission at its sixty-third session, in 2011, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/66/10, para. 87). The report will appear in Yearbook of the International Law Commission, 2011, vol. II, Part Two.

  12. 12.

    Cormick (1995), p. 264.

  13. 13.

    See e.g.: Besselink (2013), p. 301.

  14. 14.

    See: Council of Europe, doc. CDDH-UE(2010)06rev (1st Working Meeting of the CDDH Informal Working Group on the Accession of the European Union to the European Convention on Human Rights (CDDH-UE) with the European Commission).

  15. 15.

    See e.g.: Callewaert (2014), p. 7.

  16. 16.

    Besselink (2013), p. 301.

  17. 17.

    Accord: Callewaert (2014), p. 7, who argues in the same vein that the DAA ‘provides, at this stage, a sufficiently solid and stable basis to warrant discussion of its contents.’

  18. 18.

    See e.g.: ECtHR, Scordino v. Italy (No. 1), Application No. 36813/97, 29 March 2006, para. 191; See also a similar logic at: ECtHR, Paksas v. Lithuania, Application No. 34932/04, 6 January 2011; See also: See: Gragl (2013), p. 97.

  19. 19.

    See e.g. on this: Jones (2012), p. 2.

  20. 20.

    To mention only a few: International Criminal Court, the ad hoc International Criminal Tribunal for Yugoslavia, International Tribunal for the Law of the Sea, the European Court of Human Rights, the Court of Justice of the European Union, the Inter-American Court of Human Rights, the African Court of Human and Peoples’ Rights, the Andean Court of Justice, Central American Court of Justice, the ad hoc International Criminal Tribunal for Rwanda, etc.

  21. 21.

    Han (2006), p. 103.

  22. 22.

    Alford (2000), p. 160.

  23. 23.

    Alford (2000), p. 160.

  24. 24.

    Brown (2002), pp. 4 et seq; Lavranos (2009), p. 4.

  25. 25.

    Alford (2000), p. 160.

  26. 26.

    Alford (2000), p. 165.

  27. 27.

    Brown (2002), p. 6.

  28. 28.

    Cf.: Lavranos (2009), p. 56 (‘The main problem with this proliferation is the fact that it takes place in an uncoordinated fashion, without clearly formally regulating the jurisdictional relationship between all the various international courts and tribunals.’).

  29. 29.

    Helfer and Slaughter (2005), p. 33.

  30. 30.

    Sands, cited at: Brown (2002), p. 6.

  31. 31.

    Buergenthal (2001), p. 272.

  32. 32.

    Letelier (2005), p. 126.

  33. 33.

    Letelier (2005), p. 126.

  34. 34.

    Lavranos (2009), p. 5.

  35. 35.

    Brown (2002), p. 7.

  36. 36.

    Statements by the President, 26 October 2000. Address by H.E. Judge Gilbert Guillaume, President of the International Court of Justice to the United Nations General Assembly, Available at: http://www.icj-cij.org/court/index.php?pr=84&pt=3&p1=1&p2=3&p3=1; Cf.: Berman (2002), pp. 311–533, p. 318 (Berman says that in the legal sense, jurisdiction refers to ‘the circumstances under which a juridical body can assert authority to adjudicate or apply its legal norms to a dispute.’).

  37. 37.

    See e.g.: Koroma (1996), p. 154 et seq; Professor Charney disagrees with this conclusion. See more at: Lavranos (2009), p. 6; International Law Commission has also studied the issue of fragmentation of international law, and has come out with a study. See: ‘Report of the Study Group on Fragmentation of International law: Difficulties arising from the Diversification and Expansion of International Law’. Session of 18 July 2003, ILC, 55th A/CN.4/L.644.

  38. 38.

    Brown (2002), p. 13.

  39. 39.

    Buergenthal (2001), p. 272.

  40. 40.

    Han (2006), p. 114.

  41. 41.

    ICTY Appeals Chamber, Prosecutor v Dusko Tadic. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Judgment of the Appeals Chamber. Case No. IT-94-1-AR72 (2 October 1995), para. 11 [emphasis added].

  42. 42.

    Brown (2002), p. 8.

  43. 43.

    Buergenthal (2001), p. 272.

  44. 44.

    Cf.: Shapiro (1993), p. 37 (‘Nor can we even confidently claim that law has become global or universal in the sense that everyone on the planet can be sure that wherever he or she goes on the planet, human relationships will be governed by some law, even if not by a law that is everywhere the same.’).

  45. 45.

    Lavranos (2009), p. 9.

  46. 46.

    US Supreme Court, Hilton v. Guyot, 159 U.S. 113, 163/4 (1895).

  47. 47.

    Emphasis added.

  48. 48.

    E.g.: Lavranos (2009), p. 45.

  49. 49.

    Brown (2002), p. 14.

  50. 50.

    Statements by the President, 26 October 2000. Address by H.E. Judge Gilbert Guillaume, President of the International Court of Justice to the United Nations General Assembly, Available at: http://www.icj-cij.org/court/index.php?pr=84&pt=3&p1=1&p2=3&p3=1, note 54.

  51. 51.

    Buergenthal (2001), p. 274.

  52. 52.

    Han (2006), p. 111.

  53. 53.

    Han (2006), p. 102.

  54. 54.

    Lavranos (2009), p. 9.

  55. 55.

    Letelier (2005), p. 129.

  56. 56.

    Letelier (2005), p. 129.

  57. 57.

    Letelier (2005), p. 132.

  58. 58.

    Shapiro (1993), p. 37.

  59. 59.

    Jayasuriya (1999), p. 455.

  60. 60.

    Barber (1993), p. 120.

  61. 61.

    Shapiro (1993), p. 64.

  62. 62.

    Law (2008), p. 1281.

  63. 63.

    Shapiro (1993), p. 64 (‘Studies of globalization of law will depend as much on a subtle appreciation of differences among peoples of the globe as on similarities.’).

  64. 64.

    Law (2008), p. 1279–1280.

  65. 65.

    Berman (2002), pp. 311–533, p. 315.

  66. 66.

    Law (2008), p. 1285 et seq.

  67. 67.

    Sampford (2005), p. 10.

  68. 68.

    Law (2008), p. 1286.

  69. 69.

    Quoted from: Kelemen and Sibbitt (2004), p. 107.

  70. 70.

    Law (2008), p. 1288.

  71. 71.

    Barber (1993), p. 137.

  72. 72.

    Lavranos (2009), p. 56.

  73. 73.

    Helfer and Slaughter (2005), p. 8.

  74. 74.

    Lavranos (2009), p. 2.

  75. 75.

    Lavranos (2009), p. 1.

  76. 76.

    Court of Justice of EU, Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, [2008] ECR I-06351, para. 282 [emphasis added]; See also: Court of Justice of EU, Opinion 1/91 [1991] ECR I-6079, paras 35 & 71.

  77. 77.

    Buergenthal (2001), p. 274.

  78. 78.

    Buergenthal (2001), p. 274.

  79. 79.

    Kinley (2005), p. 97.

  80. 80.

    Lavranos (2009), p. 8.

  81. 81.

    Callewaert (2014), p. 11.

  82. 82.

    Alford (2000), p. 164.

  83. 83.

    Contra: Interestingly enough, Gragl views the relationship between the Luxembourg Court and Strasbourg Court of a horizontal level. See: See: Gragl (2013), p. 9. Contrary to Gragl, it is argued here that such relationship will be of a vertical relationship after EU accedes to ECHR, as EU will become a high contracting party in the same par with state contracting parties to the Convention system. Such status will definitely make the Luxembourg Court a court of domestic EU law and the Strasbourg Court a court of international law in face of the former. It is therefore argued that the new relationship between the Luxembourg and Strasbourg will be of a vertical relationship, and there seems nothing to argue the contrary.

  84. 84.

    Han (2006), p. 108.

  85. 85.

    Helfer and Slaughter (2005), p. 5.

  86. 86.

    Helfer and Slaughter (2005), p. 57.

  87. 87.

    Han (2006), p. 121.

  88. 88.

    Barber (1993), p. 124.

  89. 89.

    Callewaert (2014), p. 10.

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  1. Faculty of Law and Criminology JURI Department, Vrije Universiteit Brussels, Brussels, Belgium

    Fisnik Korenica

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Korenica, F. (2015). Introduction to the Book. In: The EU Accession to the ECHR. Springer, Cham. https://doi.org/10.1007/978-3-319-21759-8_1

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