Shadow boxing!

One of the conditions for EU membership is accession to the European Convention on Human Rights (ECHR), a treaty administered by the Council of Europe, which almost all of the continent’s states have ratified, guaranteeing the human rights of their people.

The European Union is not yet, however, party to the Convention, so if one of the EU’s own institutions does something wrong, the Convention and its protective measures do not apply.  The Treaty of Lisbon specifies that the EU must itself ratify the Convention and thus come under the jurisdiction of the ECHR.

This is now on the agenda, as the European Commission, the European Parliament and all of the EU’s member states have worked on a draft agreement on accession to the Court of Human Rights.

Just before Christmas 2014, the European Court of Justice (ECJ) issued a negative opinion on the matter, on the grounds that the draft agreement breached the ‘autonomy’ of the EU’s legal order. What they mean is that the ECJ’s justices could learn a thing or two from their colleagues at the ECHR and do not fancy doing so.

The EU’s European Court of Justice (ECJ), does not want to take a back seat to the Council of Europe’s European Court of Human Rights (ECHR) when the European Union accedes to the European Convention on Human Rights as the body responsible for the interpretation and application of the Convention.

It is all a bit childish. But it is also ironic, insofar as the ECJ judges seem to be perfectly relaxed about their powers being undermined by the so-called arbitrage committees included in ever more trade treaties.

Why are they not protesting against CETA, which will override not only national courts but the ECJ’s justices as well, should a multinational corporation decide that its investments are suffering as a result of a country’s government’s policies?

So in effect the ECJ has gone to great effort to prepare and present an official opinion on what is in effect little more than a school yard tiff, but has not been involved with the negotiations on trade treaties in which in which nowadays there is invariably a section on dispute resolution. Because national courts aren’t sufficiently trusted by investors, the multinationals want their own arbitrage mechanisms. Already there are proposals for the establishment of an International Court of Arbitration. So all the more reason for the ECJ judges to get out their banners and join the demonstrations against this new generation of trade treaties.  Yet it is completely silent at the Court’s seat in Luxembourg!

You can read about the current state of play as of June 2021 here. There is a short account of the accession negotiations of 29 June – 2 July 2021 here.

Wouldn’t it be great if they were as tardy in implementing the other provisions of the Lisbon Treaty – and wouldn’t that put the activities of Frontex in the limelight?