The Union system of human rights protection and the reversal of the presumption of equivalent protection to that of the ECHR

Authors

  • José Manuel Cortés Martín

Keywords:

Equivalent protection doctrine, manifest deficiency, Bosphorus, Ullens de Schooten y Rezabek, Michaud, international cooperation, EU accession to ECHR, European Mechanism Stability

Abstract

With the equivalent protection doctrine, the ECtHR has shown a particular deference in order to avoid placing Members of international organizations face to conflicting international obligations. Without any doubt, this international Court has demonstrated a great sensitivity to the peculiarities of the European integration process, approach which can be justified between supreme jurisdictions guaranteeing independently respect for the same rights. From an overall analysis of the ECHR Case Law, it can be deduced that except in case of manifest deficiency it seems highly unlikely that the ECtHR backtracks on this doctrine after the EU accession to the ECHR. And this because the arguments stated in Bosphorus on the needs of European cooperation and integration will remain valid after accession. As a result, they can justify just an equivalent human rights protection standard in certain areas of EU Law. Neither the argument addressed by the doctrine in order to avoid the double standard seem plausible, given the differences between international organizations and States, nor the reasons given by the ECtHR for the legitimacy of the principle of transfers of powers to an international organizations like the EU will disappear under the effect of EU accession to the ECHR. From these reasons, this of greater value is the importance the ECtHR provides to the international cooperation process, which could be hampered if it proceeded with a systematic review of all acts of international organizations. This deference has led to apply this doctrine not only to the EU but also to other international organizations. Without any doubt, this is certainly a laudable intention. However, from another perspective this deference is perhaps somewhat excessive. Surely, the alternative option would evolve the phenomenon of international institutional cooperation towards effective promotion and protection of human rights process-oriented.