Thursday 12 November 2009

Blogging and the legal mess before and after Lisbon: ECJ, ECtHR, and Protocol 14bis

The beauty of blogging does not lie in the superficial debates on topics of obvious urgency but in the minor but messy issues that are irrelevant to most and thus for the mainstream media (making them even less relevant for most).

Although the former is necessary in the EU case because of the obvious lack of relevant public debates, taking a look at minor issues and debating them often seems to make up the real added value of using social media to advance one's understanding of the world.

Like the following:

When I recently wrote about the foreseen accession of the EU to the European Convention on Human Rights (ECHR), I highlighted the legal provisions set by the Lisbon Treaty and the fact that I expect a long bargaining process before the EU accessing the ECHR will become reality.

I didn't write about more details, thinking that this would be enough for the moment.

Yet, a few days later, the Adjucating Europe blog raised questions on the same issue, probably almost unnoticed because this was in an article on a specific case at the European Court of Justice (ECJ):
"This accession – if done in hurry – might lead to an unprecedented mess. A mature reflection is in fact needed.

What would be the exact scope of the Strasbourg Court’s competence? I am curious to see how the Strasbourg Court will deal with increasing litigations involving EU citizens’ rights, residence rights or provisions of the EU Charter of Fundamental Rights not explicitly enshrined within the ECHR?
More interesting than these questions is the short discussion in the comments to that post in which we learn that not only is the European Court of Justice already referring to judgements of the European Court of Human Rights (the ECtHR in Strasbourg oversees the ECHR), but that even the Strasbourg court has already been using ECJ jurisprudence for his own judgements.

Still, it is not clear to us how their relation will be in the future and how the ECtHR might even use the Charta on Fundamental Rights and Freedoms (as part of EU law) for its judgements once the EU as an institution joined the ECHR.

And then, yesterday, the ECHR blog took a look at the matter, and while at first sight it just seems to quote a press release of the Parliamentary Assembly of the Council of Europe (PACE), the post closes with a hint to the debate around the ratification of Protocol 14 to the ECHR.

This Protocol was developed to reform the overburdened ECtHR, which adjudicates on human rights in 47 countries on the whole European continent, but since Russia has signed it but refuses to ratify, it hasn't entered into force yet (which is why it has been replaced ad interim by the so-called Protocol 14bis).

Why is this relevant? Because Protocol 14 to the ECHR also adds a little sentence to the ECHR that reads: "The European Union may accede to this Convention."

What does this mean? It means that even Russia is now an integral part of the debate.

From the 1st of December, the EU, through the Lisbon Treaty, will have the right (and duty) to join the ECHR, but a Protocol that makes this possible legally on the ECHR side is not ratified by Russia that is afraid that this Protocol could make the Human Rights Court more effective and thus would show even more how ignorant Russia is when it comes to human rights.

Kind of complex matter isn't it? Any journalists writing about that mess? Would be glad to see that. But for now, it's just in the blogs.

Oh, and speaking of journalists and blogs in this matter, one could even point to other stories, like the one where the European Court of Human Rights is confused with the EU's European Court of Justice by journalists, which happens quite frequently (see these recent posts by bitmorecomplicated, The European Citizen and Jon Worth) - but that would be to much, wouldn't it?


Anonymous said...

Thank you Julien for putting this interesting debate in a more cohesive manner.