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.