March 16, 2015
Professor Daniel Halberstam's forthcoming article on how to move the European Union's accession to the European Convention on Human Rights (ECHR) forward is making waves across the Atlantic.
The article focuses on the European Court of Justice's controversial decision to block accession to the ECHR. The ECHR, with its court in Strasbourg, is perhaps the world's most powerful international human rights regime. Created in 1950, the ECHR today has 47 contracting parties. All 28 Member States of the European Union are parties to the ECHR, but the EU itself is not. This means that some EU actions are not properly reviewable for their human rights compliance in the Strasbourg court.
"Think of the EU as a federal-type system where the component states are signatories to an international human rights treaty, but the central government is not," says Halberstam, the Eric Stein Collegiate Professor of Law. This generates "a tremendous amount of friction, and a real human rights gap."
For more than two decades, efforts have been underway to solve this problem. After several years of intensive negotiations, the EU and the 47 contracting states of the ECHR in 2013 had finally hammered out a provisional agreement for the EU to join the ECHR.
Last December, the EU's highest court, the Court of Justice of the European Union (CJEU), vetoed the deal. The CJEU struck down the provisional agreement as incompatible with the EU's own foundational treaties. Commentators were outraged, calling the decision "unsubstantiated" and purely "self-interested."
In his provocative piece, Halberstam maintains the CJEU was right. "The deal did not do justice to the constitutional architecture of the Union," Halberstam explains. "It's quite complicated business, but if you look carefully, you see the draft agreement systematically ignored the CJEU's legitimate claim to be the constitutional court of the European Union." His article also suggests how to address these problems going forward.
Halberstam's intervention created a considerable reaction among scholars and policymakers in Europe. It is featured as the focus of an ongoing symposium on the prominent German website Verfassungsblog.de. About the heated debate, Halberstam says: "The transatlantic exchange of ideas has been part of the European Union's story since its founding." He adds, though somewhat tongue-in-cheek, "and when you're in Ann Arbor, you sometimes see Europe more clearly than when you're in Brussels or Berlin."
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