We are all too often bombarded with headlines from the Daily Mail and Express decrying the EU for “its judgments” handed down in the European Court of Human Rights (ECtHR).
The other day I noticed on the Guardian website’s European Court of Human Rights page that the most recent post concerned the Government’s plans for EU reform – a somewhat distinct subject. What these papers fail to recognise, it seems time and time again, is that the EU has no institutional link to the Council of Europe’s (CoE) judicial body the ECtHR (for examples, see this blog post from Minority Thought and this one from 31 October 2013 over on Express Watch).
The CoE has even released an information note to newsdesks in a bid to clear up the confusion. It is important to recognise this distinction in order to avoid committing such blunders and confusing the two institutions – the Council of Europe with its human rights mandate and the primarily market-focused EU.
What is the EU?
The EU is “a unique economic and political partnership” . When it was created in the aftermath of the Second World War, sought to foster economic cooperation and therefore avoid conflict through economic interdependence. The European Economic Community (EEC), as a community of six countries in 1958 was the result of this vision, gradually growing to create the single market promoting the free movement of goods, services, money and people that we have come to know. Aside from this, the EU has spread its work into numerous other policy areas such as development aid, justice and home affairs, and environmental protection. Since the signing of the Treaty of Lisbon, the EU has renewed its dedication toward promoting human rights, their being protected under the EU’s Charter of Fundamental Rights. This catalogue of human rights is to be upheld whenever its member states apply EU law. Where it is not, its Commission or an EU member state can initiate proceedings if it believes a member state is failing to fulfil its obligations toward human rights in its implementation of Union legislation or an act under EU law.
It is worth noting here that all 28 members of the EU (Croatia being the most recent accession in May 2013) are required, by virtue of their belonging to the EU, to be a member of the CoE. This is an attempt at the homogenisation of human rights protection across Europe, particularly with the news that the EU, as an organisation, is preparing to become a signatory to the ECHR.
What is the Council of Europe (CoE)?
The CoE is a leading regional human rights organisation with 47 member states, including all EU countries, stretching from Spain in the south to Russia in the east. It has its headquarters in Strasbourg, eastern France. As an organisation, it was responsible for planning and implementing the European Convention (ECHR) which drew upon the inspiration of the UN’s Universal Declaration of Human Rights as part of an attempt to implement a human rights agenda and culture to avoid the atrocities of World War Two in the future. The Convention aims to provide the minimum standard of protection which should be afforded to all those subject to its terms. The implementation of the Convention in the member states is overseen by the ECtHR, with individuals having the right to bring complaints of human rights violations to the Court once all domestic remedies have been exhausted.
Figure 1: A world map colour-coded to highlight those member states of each institution.
What are the main differences between the two organisations?
The CoE was established to safeguard human rights with its Court acting as a venue to which individuals and other member states could bring complaints about possible violations of human rights. For the EU however human rights protection is a more recent phenomenon but one that establishes a wider scope for protection than that of the ECHR. The Union seeks to safeguard, not only civil and political rights like the Convention, but economic, social and cultural rights as well as some third generation rights. There is also no need to exhaust all domestic remedies in order to bring a case to the Court of Justice.
The EU, in many respects, asserts itself as though it were a Supreme Court of Europe. In Kadi & Al Barakaat International Foundation v Council and Commission, it was made clear that EU law takes precedence over all other claims of international law and any decisions of international tribunals such as the ECtHR. The Court of Justice authoriatively interprets the provisions of the ECHR, as a measure of guidance, when its provisions arise within a field considered by EU law.
For a concise overview of the differences between the two bodies, the CoE has a handy explanatory page on their website illustrating each institution’s judicial and political arms and the core human rights treaty upon which their mandate on this area was founded.
Are the ECJ and ECtHR judgments binding on UK courts?
ECtHR judgments that find violations of the Convention are binding upon the member state(s) against which the case was brought. The latter is/are obliged to execute the judgment, which the Committee of Ministers and CoE will monitor. Conversely, judgments of the ECJ are binding upon every EU member state.
How does talk about “leaving Europe” relate to this issue? Is it this which confuses people?
The recent talk, of which there has been much, on the UK “leaving Europe” adds to the concern that the tabloid press feeds upon our ignorance of the European system of politics and law by confusing the courts of both bodies. It is felt that this may be an attempt to stir up malevolence toward Europe and disenfranchise the UK’s population. For the majority of newspaper readers this (all too often) confusion, particularly on such “hot topics” and sensitive issues as migration and asylum seekers, seems at least slightly effective at encouraging talk of “leaving Europe” – the latest political buzzword.
In truth, “[t]he United Kingdom cannot withdraw from the jurisdiction of theEuropean Court of Human Rights without denouncing the ECHR and withdrawing from the Council of Europe altogether. And it cannot do the latter without withdrawing from the European Union.” 
Is there any reason therefore for the confusion between the two insitutions?
While there is some room for confusion when it comes to discussions of the two organsisations on matters of human rights, it is hoped that this post will clear up some general points of confusion detailed in many newspaper reports. In the words of Minority Thought “[r]epeat after me: the European Court of Human Rights is not an EU institution.”