Between Two Courts and a Hard Place: Constitutional Hierarchy and Safeguarding Human Rights Protection in the European Legal Space

Abstract

Two postnational legal regimes have claimed jurisdiction over human rights law in Europe. First, the European Court of Human Rights (ECtHR) enforces the European Convention on Human Rights and Fundamental Freedoms (ECHR) across the Council of Europe (CoE) and its 47 State Parties. Second, the European Court of Justice (ECJ, sometimes known as the CJEU) enforces the European Treaties and the EU Charter of Fundamental Rights (CFR) – loosely based on the ECHR, but different in significant respects – across the European Union (EU) and its 28 Member States. Given that all 28 EU Member States are also State Parties of the CoE, they can access both the CFR and ECHR and are subject to the jurisdiction of both the ECJ and the ECtHR on matters of rights interpretation. This complex legal order, which lacks formal constitutional hierarchy, risks incoherence in the interpretation and application of human rights law. First, the structure of these supranational courts lends itself to potentially conflicting case law. That is, the various sources of rights and legal foundations applicable to EU citizens, which have overlapped to create a confusing scheme of fundamental rights, might not be interpreted uniformly to share the same set of standards for protection. This structural condition is made especially complex by the fact that the EU (as a supranational institution) is not a State Party to the CoE and the ECHR, so that even though all EU Member States are subject to the jurisdiction of the ECtHR, the EU itself is not. This leads to a second problem: that the EU is not held accountable by an external adjudicator for its own human rights violations and that Member States risk an unfair legal burden where they are obliged to uphold the ECHR even as they implement EU law, which might violate the ECHR. This thesis uses case law to analyze the complex relationship between the ECJ and ECtHR as part of a larger understanding about the ways constitutional hierarchy can safeguard rule of law and human rights protection. It describes the history and functionality of both legal orders and courts, develops a framework for where one would expect to see institutional gaps and contradictions resulting from the lack of hierarchy, and analyzes the case law to point out where these gaps and contradictions exist in reality. Ultimately, it shows that a system with no clear hierarchies is an inadequate safeguard against conflicts in human rights law and incorrect placement of accountability for human rights violations. This thesis also examines the formal harmonization of this system through EU accession to the ECHR and describes why accession would close many of these gaps. It analyzes the ECJ’s recent decision in Opinion 2/13 – which rejected a draft agreement for the EU to accede to the ECHR – as a major disruption to the political harmony and comity that has previously existed between the two courts. Finally, this thesis situates this problem within a larger normative framework, using the European legal space as an example of the need for constitutional hierarchy in promoting rule of law and the long-term protection of human rights.