On St Patrick’s Day, while we were engaging in national celebrations, the European Commission was addressing the accession of the EU to the European Convention on Human Rights (ECHR). For those who are not familiar with the history of this issue, the European Convention is the basis of human rights protection across Europe and is under the custodianship of the Council of Europe (an organisation of 47 Member States including all EU Member States). The EU has long harboured an ambition to join the Convention. However, in 1994, a decision of the European Court of Justice (Opinion 2/94) declared that the EU could not join the Convention without an explicit treaty basis allowing it to do so. In the absence of such a basis in the EC and EU Treaties, accession would have to wait. Commentators have long accused the ECJ decision of being the product of judicial politics – with the ECJ attempting to protect its position at the pinnacle of the EU legal order. In the absence of EU accession an EU Charter of Fundamental Rights was agreed in 2000 and has become an important part of EU law (although it only became legally binding once the Lisbon Treaty came into force on 1 December 2009). However, the ambition to join the Convention remains and a legal basis was finally provided by the Lisbon Treaty (Article 6(2) EU).
Speaking recently, José Manuel Barroso, the President of the European Commission, declared:
“Accession to the ECHR has political, legal and symbolic importance… The EU’s accession to the European Convention on Human Rights will provide a coherent system of fundamental rights protection throughout the continent. It will complete the level of protection introduced by the Lisbon Treaty through the legally binding Charter of Fundamental Rights.”
The Commission has declared that accession will
- Help develop a common culture of fundamental rights in the EU.
- Reinforce the credibility of the EU’s human rights’ system and EU external policy.
- Show that the EU puts its weight behind the Strasbourg system of fundamental rights protection.
- Ensure that there is a harmonious development of the case law of the European Court of Justice and the European Court of Human Rights.
The negotiations for EU accession are ongoing and will address questions such as the relationship between the EU courts system and the European Court of Human Rights; the procedures for bringing EU law-related cases to the European Court of Human Rights; and whether or not the EU will nominate a judge to the European Court of Human Rights (as all other members of the Convention do). The EU-ECHR relationship will already have come to the attention of Irish human rights lawyers. The leading case on the relationship between the two legal orders as they currently operate is Bosphorus Airways v Ireland (2006 EHRR 1). In that case Ireland was caught between UN Security Council sanctions (against the former Yugoslavia) as implemented by the EU and the European Convention rights to property and to due process. The actions of the Irish state were vindicated in the case, which ended up before both the European Court of Justice and the European Court of Human Rights, with the latter court declaring that the EU offered an ‘equivalent’ level of protection to that provided by the Convention. As such, it remains to be seen whether or not EU accession to the European Convention will give rise to any real improvement in human rights protection. Human Rights in Ireland will continue to monitor the negotiations as they develop over the coming months.