The Accession of the EU to the ECHR and its Effects: Nada v Switzerland, the Clash of Legal Orders and the Constitutionalization of the ECtHR

Federico Fabbrini 

Tilburg University - Department of Public Law, Jurisprudence & Legal History

Joris Larik 

KU Leuven - Leuven Centre for Global Governance Studies
September 18, 2013

Abstract:      

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.

Number of Pages in PDF File: 116

Keywords: Human rights, UN Security Council, autonomy from international law, multilevel governance, European Convention on Human Rights, EU accession to ECHR, Draft accession agreement, Judicial dialogue, constitutionalization, Nada, Kadi

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2334905