Lifting the Organisational Veil: Positive Obligations of the European Union Following Accession to the European Convention on Human Rights

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This article examines the likely positive obligations of the European Union ('EU') following its approaching accession to the European Convention on Human Rights. By focusing on the Dublin Regulation and recent asylum seeker returns to Greece as breaches of the prohibition on inhuman and degrading treatment, the article demonstrates that in dysfunctional areas of EU regulation, quite concrete changes will be necessary in order to meet the standards required thus far by the approach of the European Court of Human Rights and general principles of international law. This seems all the more probable given the prescriptive nature of the relationship between the EU and member states in the area of immigration. Ultimately, the article argues that current EU law fails to meet the requisite human rights obligations to protect and prevent, investigate, deter and prosecute. In the absence of reforms including a proposed suspension of transfers mechanism, the article concludes that the EU is likely to be condemned by the European Court of Human Rights for failing to meet its obligations under art 3 of the European Convention on Human Rights.

I Introduction

The potential for stales to hide behind the 'organisational veil' of international institutions has become ever more significant, with increasing international mandates, scope and influence. Lifting the veil, however, goes beyond implications for member states and raises issues of responsibility for the organisation itself. Though still in their relative infancy, 'budding doctrine[s]' (1) on the responsibility of organisations are emerging to fill existing gaps in international law. Against this background, the obligations of the EU (having acquired independent legal personality) present a new and unique opportunity for human rights protection in Europe.

The Treaty of Lisbon, (2) renders the Charter of Fundamental Rights (3) legally binding and stipulates that the EU shall accede to the European Convention on Human Rights ('ECHR'). (4) The development marks a pivotal moment in the evolution of the regional legal system, lifting the veil that has thus far deflected any Strasbourg scrutiny of acts of the EU itself. Although not expanding the competences of the EU in any way, the change is expected to offer individuals greater legal certainty arid increased uniformity in the implementation of EU law. In increasing the effectiveness of rights now enshrined by the Charier of Fundamental Rights, ECHR and general Principles, such an approach should lead to stronger human rights protection within the European system.

Given the existing partial reliance by the European Court of Justice ('ECJ') upon the ECHR, and the EU's commitment to the Charter of Fundamental Rights, there has been some scepticism about the practical impact of EU accession to the ECHR. This article argues, however, that, in what the author ventures to call 'dysfunctional' areas of EU regulation, concrete policy improvements will be required. In support of this view, the article focuses on recent asylum conditions in Greece as inhuman and degrading treatment, and the return of asylum seekers to such conditions by other member states. (under current EU Law) as violations of art 3 of the ECHR. While the recent case of NS and ME (5) has now settled conclusively that EU law neither requires nor permits return of asylum seekers to Greece, the article questions whether or not the current state of EU law adequately fulfils the positive obligations to protect and prevent, investigate violations, and deter and prosecute.

The impact of the ECHR on member states returning asylum seekers to countries such as Greece has already attracted significant research and this article does not rehash the question of member state responsibility. There has been ongoing debate concerning asylum conditions in Greece as a violation of art 3, with the landmark Grand Chamber decision of MSS v Belgium and Greece (6) handed down in January 2011 concluding that Dublin returns to such conditions amount to a breach not only by Greece, but also by the relevant returning state. …