Disarray after veto on joining human rights convention

In a surprise decision just before Christmas, the European Union's top court vetoed plans for the EU to sign up to the European Convention on Human Rights. The Court of Justice of the European Union (CJEU), which sits in Luxembourg, rejected an agreement hammered out over nearly four years of negotiations between EU officials and their counterparts in the Council of Europe, which sponsors the Human Rights Convention and the European Court of Human Rights which enforces it.

The 47-member Council of Europe, which is based in Strasbourg, is made up of all European states except Belarus and its greatest achievement is the Human Rights Convention and Court, also based in Strasbourg. All EU member states are also members of the Council of Europe.

The EU was left in disarray by the decision of the CJEU. The Lisbon Treaty, passed in 2009, had committed the EU to accede to the Human Rights Convention and all the EU governing bodies, the European Parliament, the Council and the Commission, supported this move.

An accession agreement had been agreed in detailed negotiations that ended in April 2013 but it was then referred to the CJEU in Luxembourg to give its opinion on whether it was consistent with the EU treaties. The CJEU could have been expected to come up with some points that required further clarification or even amendment of the agreement, but its objections, as set out in its decision given on 18th December, were so fundamental and wide-reaching it is hard to see how the project can be rescued.

The irony is that all 28 members of the EU are also parties to the human rights convention and being a party to the convention is a pre-condition for membership of the EU. So they are all bound by the convention in any case. And the EU has its own Charter of Fundamental Rights, to which the Lisbon Treaty gave the same status as the EU founding treaties and which has been used increasingly by the CJEU in recent cases.

The charter itself is closely modelled on the human rights convention and states that the rights contained in it shall have the same meaning and scope as the convention rights.

So why was there a need for the EU to sign up to the convention?

One reason was that while the individual member states were subject to the external scrutiny of the human rights court in Strasbourg, the EU institutions which make the laws and rules that govern what happens throughout the union, were not.

So while individual member states might be found in breach of the human rights convention for observing EU rules, the bodies that make the rules would be beyond reach.

There was also an issue that within the EU, member states were required for the purposes of European Arrest Warrants or returning asylum seekers to another member state under the Dublin Convention, to assume that all their fellow members adequately upheld human rights standards.

One of the objections raised by the CJEU was that accession to the convention could undermine this mutual respect required of member states. But ironically the CJEU itself had held in cases from Ireland and the UK in 2011 that the system in Greece for dealing with asylum seekers was so bad that it would be in breach of the Charter of Fundamental Rights to return asylum seekers there.

There are also areas of the EU’s Common Foreign and Security Policy that the Treaties do not permit the CJEU to examine and the decision suggested that it might resent the possibility that the human rights court could be able to examine such matters when it could not.

A number of commentators have remarked that the tone of the CJEU’s rejection of the accession agreement suggested it was more concerned with preserving its own position as final arbiter in the EU than with the better protection of human rights within the union and the broader European community.

What happens next?

The way to resolve this impasse is not obvious. The CJEU’s objections are so broad that it is by no means clear that the non-EU members of the Council of Europe, who made a number of concessions during the negotiations, would be prepared to cede even more ground to meet its demands.

The other alternative would be to amend the EU treaties to over-ride the objections of the CJEU but it is equally unclear that the UK and some other EU members, who are increasingly unhappy with criticisms from the Court of Human Rights, would agree to make such changes.

The only positive development that might emerge from this unhappy saga in the short term is that the CJEU might feel the need to show that it is not indifferent to human rights and might use the EU's own Charter of Fundamental Rights more proactively to demonstrate its human rights credentials. Michael Farrell is the senior solicitor with Free Legal Advice Centres