Comment by Joseph Phelps
Today in Europe, European Community law, a complex web of legal regimes protecting human rights and made up of constituent threads of national law, and international law has imposed substantial limitations on state action. Apart from national courts, the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) act to protect human rights, although their raisons d'être differ. The former has only gradually recognized the protection of human rights as a prerequisite to the legality of Community law, while the latter enforces a decades-old international convention that seeks to establish a minimum level of human rights protection across contracting states. This Comment uses Bosphorus to illustrate tension among the various actors in this human rights system and its inherent complexity by following an alleged human rights violation as it is considered by national courts, the ECJ, and finally, the ECHR. The Comment reflects on the analyses of the courts involved and, especially, the jurisdictional and political difficulties encountered when the ECHR is faced with a state actor that must, according to its treaty obligations, enforce European Community law. The Comment concludes by arguing that the current deferential presumption by the ECHR that the European Community provides equivalent fundamental rights protection is premature and unwise, and the court should wait until the European Union accedes to the Convention for the Protection of Human Rights and Fundamental Freedoms, which the court is entrusted to enforce.
About the Author
Joseph Phelps. J.D. candidate 2007, Tulane University School of Law, A.B. 2004, Brown University.
Citation
81 Tul. L. Rev. 251 (2006)