Before I start, I might note that some of the topics here, the structures by which human rights are protected, might seem overly formalistic and even boring. However, in the end of the day, it is those structures that make the rule of law possible, and the duplication of human rights structures could lead to confusion and dilution of protection.
The Council of Europe (CoE) is an association of 47 countries who have agreed to uphold the European Convention on Human Rights (ECHR). This means that in Council of Europe Member States, which range from Ireland to Switzerland to Ukraine, rights are protected such as the right to a fair trial and to freedom of expression and assembly.
But rights are described and protected at other levels: since the foundation of the CoE in 1949, the smaller European Steel and Coal Community, has grown and evolved into the European Union (EU).
The two unions could be called siblings: the founders of both organisations were in large part the same people. And the relationship between these organisations is as complicated as any family relationship. It is currently managed by a formal Memorandum of Understanding which was signed in 2007.
As the European Union has expanded both in geographical scope and also in terms of issues it covers, the potential has grown for duplication (or competition) between the siblings. The EU originally focussed on trade, and it continues to promote trade. Trade liberalisation – one of the foci of the EU – does not always promote protection of human rights. The EU has even actively tried to prevent a legal requirement for business to consider human rights, arguing that the voluntary UN Guiding Principles are sufficient. Despite this, the EU has also expanded into human rights: in 2000, the EU adopted a charter of fundamental rights which adds to those listed in the ECHR rights like protection of personal data and right to integrity of one’s person.
In one move which will help ensure coherence, the EU several years ago began to take steps to join (accede to) the ECHR. A draft agreement was published in 2013. One of the steps in the process was a check by the EU’s European Court of Justice (ECJ) on the draft agreement. Nearly everyone working on human rights in Europe was surprised – and disappointed- by the December 2014 ECJ judgement that there is a fundamental problem of jurisdiction, and that the European Convention is not compatible with EU Treaties. (Ironically, the Treaty of Lisbon includes a requirement for the EU to accede to the ECHR.)
Legal structures – to me as an non-expert – are all about detail, so forgive me for listing some of the elements mentioned in the judgement. A fundamental one has to do with the structure of the EU: the ECJ decided that the legal treatment of the EU as a state was inappropriate. Another issue has to do with mutual trust: ‘’the ECHR would require each Member State to check that the other Member States had observed fundamental rights, even though EU law imposes an obligation of mutual trust between those Member States. In those circumstances, accession is liable to upset the underlying balance of the EU and undermine the autonomy of EU law.’’ And the competence of the European Court of Human Rights to rule on some foreign policy acts which are not part of the EU court’s mandate, is also problematic according to the ECJ.
Is there a problem of impartiality? The ECJ was asked to review a document which it feels will limit its own power. From its judgement: “the Court has exclusive jurisdiction in any dispute between the Member States and between those Member States and the EU regarding compliance with the ECHR.” The dual jurisdiction and dual sets of standards could become problematic if the predominance of one (ECHR) is not maintained.
What to do?
To move forward from where we are now, the Parliamentary Assembly of the Council of Europe (members of national parliaments from the 47 member states who gather in Strasbourg to debate four times a year) passed a resolution and a recommendation yesterday. The recommendation, which was passed by 94 out of 100 present, will go to the Committee of Ministers. ‘’The Assembly, while agreeing with the Committee of Ministers that the Memorandum of Understanding remains a sound basis to continue guiding and structuring relations between the Council of Europe and the European Union, wishes to reiterate that the current focus of the European Union on human rights, democracy and the rule of law should ultimately lead to the accession of the European Union to the Statute of the Council of Europe…‘’
The resolution (passed by 82 votes out of 92) includes the following invitation:
‘”[the Parliamentary Assembly] therefore invites those Member States of the Council of Europe which are also members of the European Union to exercise their influence in such a way as to resume, without delay, the negotiations on EU accession to the Convention and to give high political priority to this process.”
We would like to extend the invitation also to you.