Publication details
L'enjeu difficile de l'éventuelle adhésion de l'Union européenne à la Convention européenne des droits de l'homme : de graves différences dans l'application du droit international, notamment général, par les juridictions de Luxembourg et Strasbourg
| Authors | |
|---|---|
| Year of publication | 2009 |
| Type | Article in Periodical |
| Magazine / Source | Revue générale de droit international public |
| MU Faculty or unit | |
| Citation | |
| Field | Law sciences |
| Description | Seen in the logic of international law, the system created by the European Convention on Human Rights as well as that of the European Community and Union law, constitute self contained regimes. The International Law Commission in its 2006 report on the fragmentation of international law considers that those regimes should not become “closed circuits”. Therefore, the rules of general international law are supposed to apply to them, unless a clear derogatory expression of their Member States’ will intervenes. This conclusion (no 15) of the aforementioned ILC report does not nevertheless resist the realities of international and European life. The author points out in this respect great difference in the application of general international law by the Strasbourg and Luxembourg based European jurisdictions when treating similar cases (the fight against international terrorism and the protection of immovable property rights in Northern Cyprus). This fact is likely to create a rather serious problem for the ECJ and for its wellestablished case-law in the event that the Union joins the European Human Rights Convention and accepts the binding character of the ECHR case-law. The same risk exists equally for the ECJ case-law relating to the status of the WTO law in Community law which could make it very difficult for the ECHR to carry out its usual test of proportionality. |