Article 6(2) TEU requires the EU, an institution which has been in a constant state of evolution for over six decades, to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) a creature of the Council of Europe (“CoE”) which, along with its legal system, has traveled its own evolutionary path over the same period.
Robert M. Schwartz discusses in this talk the (future) accession of EU to the ECHR which raises the vital question of how or if these divergent institutions can converge and reintegrate their human rights standards and whether such grafts “will take”. Accession requires that the Court of Justice of the European Union (“CJEU”) conform its doctrines, human rights and otherwise to the ECHR’s rights doctrines as developed by the European Court of Human Rights (“ECtHR”.) For example, the CJEU and the ECtHR share a number of terms of art such as “the rights of the defence” but apply them quite differently within their different legal systems. To accomplish Article 6(2)’s mandate all parties need to precisely understand what is the same and what is different about the CJEU’s and ECtHR’s visions of human rights. It appears that these differences are far greater than have generally been assumed and that they are deeply rooted in the two courts’ institutional and doctrinal histories and consequent path dependencies. The rights doctrines developed over more than half a century by the CJEU in conjunction with its economic doctrines are now portrayed along with ECHR doctrines as an overlay on the Charter of Fundamental Rights of the European Union recently “recognized” by Article 6(1) TEU. My dissertation sought first, to separate the history from the hagiography and second, to approach the different Legal system’s understandings and approaches to rights in general, and human rights in particular. It employed a variety of legal, philosophical, sociological and policy approaches for a better understanding of these systems’ basic conceptions of rights and how they affect their application.
Robert M. Schwartz has been an attorney in New York for over 30 years. A former Law Clerk to a U.S. Federal Judge, he received his LL.D. in EU Law and his LL.M. in European Business Law from Lund University. Prior to writing his dissertation he had published inter alia, on EU Competition Law, U.S. and Maritime insolvency Law, and Genomic Patent Eligibility.
The seminar is a digital seminar. Zoom-link will be sent upon registration.