The European Union Charter of Fundamental Rights vs. The Council of Europe Convention on Human Rights and Fundamental Freedoms - A Comparison

128 Pages Posted: 22 Jul 2017

See all articles by Frank Emmert

Frank Emmert

Indiana University Robert H. McKinney School of Law

Chandler Carney

Indiana University, Robert H. McKinney School of Law, Students

Date Written: July 18, 2017

Abstract

While some regions of the world still do not have supranational structures for the protection of human rights and fundamental freedoms, Europe has two systems that are competing on some levels and complementary on others. The European Court of Human Rights in Strasbourg is the guardian of the European Convention on Human Rights and Fundamental Freedoms and accepts complaints by individuals alleging a breach of one or more Convention articles by acts or omissions of the authorities of one of the forty-seven Contracting Parties of the Council of Europe, provided certain conditions of admissibility are met. The Court of Justice of the European Union, based in Luxembourg, is the guardian of the EU Charter of Fundamental Rights and decides in specific cases whether acts or omissions of the EU institutions and/or certain acts or omissions of the authorities of one of the twenty-eight Member States of the European Union are in conformity with the guarantees provided in the Charter. While there are differences in geographic coverage and in the substantive scope of protection, some cases can and have been brought before both supranational courts.

Since the parallel existence of two supranational catalogs of human rights and two supranational courts for their interpretation and enforcement is quite unique, this article compares some of the strengths and weaknesses of each of the two systems and attempts some proposals for the future development of both of them. For the benefit of less specialized readers, we first recall the history and evolution and some of the most important features of each of the two systems. This includes a good introduction to the supremacy and direct effect of EU law in the Member States and how the preliminary reference procedure before the European Court of Justice in Luxembourg differs from other international court procedures, including the International Court of Justice in The Hague and the European Court of Human Rights in Strasbourg.

The second half of the paper focuses on the key problems of the ECtHR, namely the case-load problem, the delays, the docket control mechanisms, and the low levels of compensation in many cases that deter applicants. Existing proposals for reform are discussed and some new ones are added. Finally, some key issues in the ECJ in the context of fundamental rights protection are analyzed, namely the question whether the EU should still accede to the ECHR, and the question whether the Member States should be subject to the obligations enshrined in the Charter for all their actions or only when they are implementing EU law.

Keywords: Human Rights, European Convention, EU Charter

JEL Classification: K10, K30, K33, K41

Suggested Citation

Emmert, Frank and Carney, Chandler, The European Union Charter of Fundamental Rights vs. The Council of Europe Convention on Human Rights and Fundamental Freedoms - A Comparison (July 18, 2017). Fordham International Law Journal, Vol. 40, No. 4, 2017, Available at SSRN: https://ssrn.com/abstract=3004788 or http://dx.doi.org/10.2139/ssrn.3004788

Frank Emmert (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

Inlow Hall IN 335
530 West New York Street
Indianapolis, IN 46202
United States

Chandler Carney

Indiana University, Robert H. McKinney School of Law, Students ( email )

Indianapolis, ID 46202
United States

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