Human Rights in the Council of Europe and the EU: Towards ‘Individual’, ‘Constitutional’ or ‘Institutional’ Justice?

• Author: Steven Greer,Andrew Williams
• Date: 01 July 2009
• DOI: http://doi.org/10.1111/j.1468-0386.2009.00473.x
• Published date: 01 July 2009

eulj_473462..481

Human Rights in the Council of Europe

and the EU: Towards ‘Individual’,

‘Constitutional’ or ‘Institutional’ Justice?

Steven Greer* and Andrew Williams**

Abstract: The European Convention on Human Rights, promulgated by the Council of

Europe in 1950, is widely regarded as the world’s most successful experiment in the

trans-national judicial protection of human rights. The EU’s much more recent judicial

and political interest in human rights has also been widely welcomed. Yet, while the crisis

currently aff‌licting the Convention system has not gone unnoticed, the same cannot equally

be said of the diff‌iculties presented by the increasing interpenetration of the two systems.

Amongst the few who have shown some interest in these problems, the dominant view is

that good will and common sense will provide adequate solutions. We disagree. Instead, we

detect a gathering crisis which, unless properly analysed and effectively tackled, will only

deepen as the EU’s interest in human rights develops further. In our view, the problem is

essentially conceptual and that, ultimately, it boils down to a much-neglected question,

simple to state but not so easy to answer: is the trans-national protection of human rights

in Europe a matter of ‘individual’, ‘constitutional’ or ‘institutional’ justice?

I Introduction

In the aftermath of the Second World War, and more recently the Cold War, European

political, constitutional, legal and economic systems have increasingly converged

around, or been integrated according to a common institutional model, formally

def‌ined by the values of democracy, human rights, the rule of law and the democrati-

cally regulated market. As far as human rights are concerned, the processes of con-

vergence and integration have, however, produced distinctive problems in the two

pre-eminent trans-national systems, the Council of Europe and the EU. Despite the

perceived successes of each, both are, nevertheless, aff‌licted by conditions that under-

mine their individual legitimacy and/or effectiveness. The possibility of a closer rela-

tionship between them, f‌irst through practical cooperation and, second, through the

potential accession of the EU to the European Convention on Human Rights (ECHR;

the Convention), may be seen as offering solutions. But each system will have to change

to accommodate the other, a process made even more problematic by the rejection of

the Lisbon Treaty in the Irish referendum of June 2008. The purpose of this article is to

consider what kind of accommodation might be required.

* Professor of Human Rights, University of Bristol.

** Associate Professor in Law, University of Warwick.

European Law Journal, Vol. 15, No. 4, July 2009, pp. 462–481.

© 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

The f‌irst part examines the key problems associated with the ECHR, particularly the

tension between the ‘individual’ and ‘constitutional’ justice models.1Although the

former has dominated the judicial landscape, it simply cannot fulf‌il its promise. Pursuit

of this objective, coupled with the ever-increasing case load, threatens to bring the

whole structure grinding to a terminal standstill. The latter, however, remains to a great

degree an aspiration but nonetheless an important ingredient in the Council of Europe

fulf‌illing its underlying rationale.

The second part then considers the EU and some of the diff‌iculties of its human

rights regime.2Here, the principle of respect for human rights has become a constitu-

tional prerequisite informing both European law and policy. While drawing on the

jurisprudence of the European Court of Human Rights (ECtHR), the EU has devel-

oped its own human rights regime, with constituting pretensions yet also considerable

limitations. Issues of jurisdiction are continually in play, creating uncertainty and

ambiguity about the constitutional role human rights can and do play in the Union, not

only within its borders but also in its external relations. Although issues of individual

and constitutional justice are apparent, a form of ‘institutional justice’ characterises

this particular human rights f‌ield. In short, human rights have assumed a legitimating

function instead of serving the interests of justice as more generally conceived.

The third and concluding part of this article then questions whether, and if so how,

closer cooperation between the two systems would serve any notions of justice or the

promotion of human rights more generally. Rather than examine procedural issues

relating to accession, our concern here is with identifying and addressing the fault lines

in both regimes vis-à-vis the promotion and better fulf‌ilment of human rights. Our

conclusion is that, if human rights are to be considered paramount in Europe, and if

greater convergence of the Convention and EU systems is to be a positive step towards

fulf‌ilment of that aim, a common constitutional justice model needs to be adopted.

Although this will require further work on its modalities, we argue that, in principle. the

adoption of such a model is a necessary f‌irst step.

II The Council of Europe and the European Convention on Human Rights

A Origins

Various ideas about increased European collaboration, ranging from loose union to

full-blooded federation, had been under discussion in the years between the two world

wars. But it was only as 1948 drew to a close that the governments of the UK, France

and Belgium agreed to establish a Council of Europe and invited Ireland, Italy,

Denmark, Norway and Sweden to participate in the negotiations. Luxembourg and the

Netherlands also later became founding members. The Council of Europe was intended

to achieve four main objectives: to contribute to the prevention of another war between

1Material for this section derives from S. Greer, The European Convention on Human Rights: Achievements,

Problems and Prospects (Cambridge University Press, 2006), ‘What’s Wrong with the European Conven-

tion on Human Rights?’, (2008) 30 Human Rights Quarterly 680 and ‘Towards a Socio-Legal Analysis of

the European Convention on Human Rights’, in G. Verschraegen and M. Madsen (eds), Towards a

Sociology of Human Rights: Theoretical and Empirical Contributions (Hart, 2009), forthcoming.

2Material for this section derives from A. Williams, EU Human Rights Policies: A Study In Irony (Oxford

University Press, 2004) and ‘Fundamental Rights in the New European Union’, in C. Barnard (ed.), The

Fundamentals of EU Law Revisited: Assessing the Impact of the Constitutional Debate (Oxford University

Press, 2007), 71.

July 2009 Human Rights in the Council of Europe and the EU

463

© 2009 Blackwell Publishing Ltd.