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Harmonizing Europes Human Rights System: The European Unions Accession to the European Convention on Human Rights
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- Authors
- Issue Date
- 2012-09
- Publisher
- 서울대학교 법학연구소
- Citation
- 법학, Vol.53 No.3, pp. 713-727
- Keywords
- accession ; co-respondent mechanism ; European Court of Human Rights(ECtHR) ; European Court of Justice (ECJ) ; nemo tenetur
- Description
- The first draft of this article was presented at the 1st Joint Symposium between Seoul National University and Ludwig-Maximilians-Universität München (University of Munich) on Current Developments in International Economic Law held in Seoul, Korea from September 21 to 22, 2011.
- Abstract
- This article gives a brief overview of the European human rights system and
the two basic actors, the European Court of Justice (ECJ) and the European Court
of Human Rights (ECtHR). It is not surprising that these two courts, which have
such different traditions, sometimes interpret the same human rights provisions in
a different way. This issue shall be depicted by way of using the example of their
differing interpretation of the Article 6 of the European Convention of Human
Rights (ECHR) in the cases of Orkem before the ECJ, Funke and Saunders before
the ECtHR and finally Limburgse Vinyl Maatschappij before the ECJ. In the cases
mentioned above, the courts have not only shown fundamentally different
approaches to determine the meaning of the nemo tenetur principle in cases concerning economic proceedings. The ECJ has also upheld its less human-rights-friendly approach after dealing with the ECtHRs jurisprudence in the matter, thus disregarding the opinion of the court that is competent to interpret the ECHR. This article afterwards presents one of the major problems arising in the accession process. The European Union (EU)s fear of external judicial control
shall serve as an example for the difficulties arising with the accession of a
supranational organization sui generis to a convention to which all of its member
states are already members. This article presents the proposed solution to this
problem, the so-called co-respondent mechanism. Finally, a brief look into the future poses the question whether the upcoming accession of the EU to the ECHR can harmonize the human rights jurisprudence in the EU. It is the opinion of the author that such a step has the potential to promote a consistent and understandable European human rights system and to strengthen the European peoples trust in the European legal order.
- ISSN
- 1598-222X
- Language
- English
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