LL.M Law in a European and Global Context, Católica Global School of Law
Considering the major feature that underpins the European project – the creation and consolidation of the internal market – the European Union (hereafter EU) is not truly a human rights organisation. Indeed, it may be designated as a regional economic integration organization (REIOs). Nonetheless, respect for human rights is a condition of the lawfulness of Community acts. In fact, the need to give a more consistent protection to human rights is firmly rooted in the Draft Agreement on the Accession of the EU to the ECHR, adopted in July 2011.
With the accession of the European Union (EU) to the European Convention on Human Rights (ECHR), the allocation of responsibility between Member States and the EU embraces new challenges, partly motivated by the existing contradictions between the international framework on responsibility for human rights violations and the special EU law of responsibility.
In the light of the International Law of Responsibility, Article 1 of the Draft Articles on the Responsibility of International Organisations (DARIO) states that this international framework applies to an international organisation for an internationally wrongful act as well as to the international responsibility of a state for a wrongful act in connection with the conduct of an International Organisation.
Undoubtedly, the EU, endowed with an international feature, constitutes an International Organisation by virtue of which it is responsible for its own international conduct. However, it also comprises specific features which make it different and unique. In light of this special character, a plea emerged to clarify its position on the international regime of responsibility, which was welcomed by the International Law Commission (ILC) in 2009. A proposal was issued to foster the recognition of the lex specialis principle for the EU according to which any conduct on the part of the Member States (regarded as de facto organs of the International Organisation) namely when the conduct of states consists of implementing or enforcing EU decisions, would be attributed to the EU and considered to be considered an act of the EU under international law.
This statement establishes a criterion to attribute exclusive responsibility to the EU. However, the so-called lex specialis on the part of the EU contrasts with the current practice undertaken at the European Court of Human Rights (ECtHR).
Firstly, since the ECHR is only binding on Contracting Parties and the EU has not yet acceded to the Convention, the ECtHR has no jurisdiction over European institutions in accordance with Article 1 ECHR and the EU cannot be found fully responsible for any act or omission on its part. In the ECtHR the prevailing idea is the attribution of the act to the state, since acts of the European Union cannot be challenged before the Court.
In this sense, I envisage the possibility of successive violations of human rights going unaddressed just because the perpetrator is not a contracting party to the Convention.
Contracting parties to the ECHR are not prohibited per se to transfer part of their sovereign powers to the sphere of international organizations. However, if it were accepted that, when States execute acts stemming from the implementation of Community obligations they could depart from their responsibility under the Convention, it would lead to a potential lacuna in the protection of human rights.
Secondly, it implies that States have to bear responsibility for the alleged violations when they stem from international organisations that have not signed the Convention. If I rephrase this line of reasoning, it is also possible to state that actions or omissions directly taken by the EU which do not involve any acts or omissions by the states will not be subjected to scrutiny under the ECtHR because they are directly attributed to the EU. This reasoning is applied in the Conolly case. Unless there is a domestic act on the part of the states, either by implementation of EU Law or by preliminary reference to the CJEU, the assumption is that only the EU acted, rendering it immune from scrutiny by the ECtHR.
Here is where another contradiction arises. With respect to the accession of the EU to the ECHR, the provisions laid down in the Draft Accession Agreement provide that an act taken by a Member State is attributed to the latter even if it is implementing EU legislation.
In addition to that, the provisions also provide for the inclusion of a co-respondent mechanism. It allows the states and the EU to respond jointly and in solidarity thus allocating responsibilities within the EU in order to avoid an excessive interference from the ECtHR. This is important when the EU and the states commit a wrongful act that results in a single injury or when lodging individual does not correctly identify the respondent party when lodging the claim, for example.
Regarding the allocation of responsibility between EU and Member States for human rights violations, the line of reasoning seems clear: unless the Member State claims full responsibility for the violation, the co-respondent can be found jointly responsible with the respondent for the violation at stake as laid down in Article 63 of the Agreement.
However, from my perspective, there is an underlying unanswered question: how is it possible to intertwine joint responsibility with the effective reparation in the future? It is important to highlight is the fact that joint solidarity is external. There is a more profound legal “vacuum” which refers to the question of apportionment of internal responsibility. In fact, this mechanism seems not to prevent the ECtHR from developing its own practice of justice-seeking and decide on the allocation of responsibilities making an individual attribution of conduct and, implicitly, intrude in the scope of competences between EU and Member States.
There is another issue that one cannot avoid raising in this context concerning Common Foreign Security Policy. For instance, military operations outside the territory of the EU but under its “umbrella” (either legislative or executive) can occur and affect the rights of individuals. How does one decide the attribution of responsibility? The accountability for human rights violations can be undermined if military operations under the command of international organizations escape the review of the ECtHR as opposed to troops under the command of a Contracting State to the Convention. Considering CFSP it is not clear who would incur in responsibility and to whom the conduct would be attributed. If the conduct is attributed to the state but is the EU which is found responsible, different outcomes may arise.
The international criterion for the attribution of responsibility is effective control and ultimate authority and control over the acts and omissions of troops as exemplified in the Al-Jedda case. However, the ECtHR has not adopted any specific rules on the attribution of military actions.
If the ECtHR steers away from ascertaining responsibilities in this case, one can guess that EU law is likely to be entrusted with such task, which entails the risk of jeopardizing certainty of outcomes.
Having said that, I believe that the accession of the EU to the Convention triggers the need to review the European regime of international responsibility between EU and Member States. I would even attempt to say that it also triggers the need to develop new rules on its internal determination.
 Jean d´Aspremont, “A European Law of International Responsibility? The Articles on the Responsibility of International Organizations and the European Union”, SHARES Research Paper 22 (2013), ACIL (2013)
 Opinion 2/94 of 28.3.1996, Opinion pursuant to article 228 of the EC Treaty, paragraph 34
 Draft Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms, CDDH-UE (2011)16, Strasbourg, 19 July 2011. See also CDHUE (2010)14, 22 Oct. 2010, para 9; and CCDH-UE (2011), para 37.
 Draft Articles on the Responsibility of International Organizations (DARIO), ILC Report 2011, A 66/10, 52.
 In accordance with Articles 47 TEU, the EU is an International Legal Person.
“The EU constitutes a legal order of its own, with a comprehensive legislative and treaty-making powers directly applicable in the Member States as if it was domestic law, which derives from the transfer of competences from the States to the EU” in S. Talmon, “Responsibility of International Organizations: Does the European Community require special treatment?” in Maurizio Ragazzi (ed) International Responsibility today: Essays in Memory of Oscar Schachter (Brill Publication 2005). On a different position, we have the position of theRapporteur Gaja in 2004, who declared that there was no need to devise special rules on attribution of conduct to assert the organization´s responsibility.
 Jean d´Aspremont, “A European Law of International Responsibility? The Articles on the Responsibility of International Organizations and the European Union”, SHARES Research Paper 22 (2013), ACIL (2013).
 ICL Reports of its 61st session (2009) Commentary on Draft Article 63, A/64/2010, at 173.
 For instance, WTO Panels have accepted that member states would act as de facto organs of the EU, being the later held accountable. In a different position see Ch. Ahlborn, “The Rules of International Organizations and the Law of International Responsibility”, ACIL Research Paper No 2011-03
 Article 33 of the ECHR.
 M. & Co. v. Federal Republic of Germany, application no 13258/87 ECtHR (1990).
 Catherine Van de Heyning and Rick Lawson “The EU as a party to the ECHR and the ECJ case law as inspiration and challenge to ECtHR jurisprudence” in P. Popelier, Van d. Heyning and P. Van Nuffel (eds), Intersetia (2011) P. 52
 Tobias Lock “End of an Epic? The Draft Agreement on the EU’s Accession to the ECHR” Yearbook of European Law (2012)31 (1): 162-197.
 Conolly v. 15 Member States of the EU, App. No. 732740/01, (2008)
 Kokkelvisserij v. Netherlands App no 13645/05 (Section III), (2009)
 Articles 1(4) and 3 (3)(7) of the Draft Revised Agreement on the Accession of the European Union o the Convention for the Protection of Human Rights and Fundamental Freedoms 47+1(2013)0088rev2, Strasbourg, 10 June 2013.
 Ibid Article 3(7)
 Tobias Lock “Walking on a tightrope: the draft accession agreement and the autonomy of the EU legal Order”, 48 Common Market Law Review (July/August 2011)
 Andrea Nollkaemper, “Joint Responsibility between the EU and Member States for non-performance of obligations under Multilateral Agreements”, The External Environmental Policy of the European Union, Elisa Morgera (ed) Cambridge UP, (2012).
 With respect to the co-respondent, the individual does not need to meet all the requirements such as the exhaustion of national legal remedies.
 Op. Cit. 11
 Explanatory report to the draft agreement on the accesion of the EU to the Convention, CDDH-EU (2011), 05, para. 56
 Jörg Polakiewicz “EU law and the ECHR: Will EU accession to the European Convention on Human Rights square the circle? The draft accession agreement of 5 April 2013”, and “EU Law and the ECHR: Will EU Accession to the European Convention on Human Rights Square the Circle? (2013), available at: http://ssrn.com/abstract=2331497 or http://dx.doi.org/10.2139/ssrn.2331497
 Al-Jedda v. UK, application no 27021/08, ECtHR (2011), para. 84