The Past and Future Relationship of the European Court of Justice and the European Court of Human Rights: A Functional Analysis

Abstract

European human rights law, with its source both in the Treaties of the European Union and the Council of Europe’s European Convention of Human Rights (ECHR), may appear to be plagued by an unnecessary duplication of institutional and legal provisions. Namely, the EU’s European Court of Justice (ECJ) and the Council of Europe’s European Court of Human Rights (ECtHR) have jurisdiction over different human rights instruments even though their territorial jurisdiction overlaps. In this light, the Lisbon Treaty took action to unify the two regimes by initiating proceedings for the EU to accede to the ECHR. This paper argues that the legal order pre-Lisbon treaty was actually an extremely functional institutional and legal system that provided for the uniform development of European human rights law. It was characterized by a functional division of labor between the ECJ and the ECtHR that also provided private litigants with an opportunity to forum shop. Further, the two Courts developed customary practices to ensure both inter-court comity and interpretational convergence, creating a uniform body of human rights law. Therefore, I conclude that the EU’s accession to the ECHR is mostly a symbolic and political reform rather than a substantive legal one.