The following article deals with one of the most controversial aspects of human rights protection in the European Union, specifically the question of whether the European Union should accede to the European Convention on Human Rights (the Convention). The purpose of this article is to recall the history of the drafting process of the Draft of the Accession Agreement (the Draft) as well as to provide some explanations of the arguments presented by the European Court of Justice in Opinion 2/13. In the opinion of the author, the Draft has been torpedoed European Court of Justice for several valid reasons stemming from the specifics and autonomy of the European Union’s legal order. Presumably, any further attempts to accommodate the text of the Draft in line with the concerns of the European Court of Justice would be counter-productive as it could lead to de jure segregation of the member states of the Council of Europe, thereby undermining the legitimacy and authority of the European Court of Human Rights. Exploring different scenarios of the development of relations between the European Court of Human Rights and the European Court of Justice, the author believes that interrelations between the courts could be described now in terms of competition. The author submits that the position taken by the European Court of Justice could be explained by its strategy of the gradual judicial federalization of the Union. It also presupposes that recent jurisprudence of the European Court of Human Rights regarding Bosphorus presumption might be interpreted as modification of the Court’s attitude in relation to the European Union.
About the author
Aleksey Ispolinov – Candidate of Sciences (Ph.D.) in Law, Head of International Law Department, Lomonosov Moscow State University, Moscow, Russia.
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