When Elephants Fight it is the Grass that Suffers: ‘Hegemonic Struggle’ in Europe and Its Side-Effects for International Law: Dynamic Systemic Integration, Ad Hoc Normative Hierarchy and Responsibility of Member States Linked to the Conduct of International Organisations
Vassilis P. Tzevelekos
March 1, 2014
in K. Dzehtsiarou, T. Konstantinides, T. Lock, N. O’Meara (eds.), Human Rights Law in Europe: The Influence, Overlaps and Contradictions of the EU and the ECHR, Routledge, 2014, pp. 9‐34
The paper offers an alternative narrative about the interplay between the ECtHR and the CJEU. It argues that Bosphorus cannot serve as a role-model for understanding the interrelationship between these two quasi-Constitutional Courts, the interaction of which is inherently marked by implicit competition. Although other motives may exist as well, the reason why the ECtHR in Bosphorus felt it necessary to self-restrain its judicial powers was not so much its esteem towards the CJEU, but the impact judicial review would have on the UNSC, the Resolutions of which the EU was in fact implementing. A second(ary) goal of the paper is to ‘zoom-out’ from the European-centric vision of the CJEU-ECtHR dipole and outline the broader environment within which their common tale is situated. In that respect, the paper discusses systemic integration and legal pluralism, (indirect) review of the acts of the UNSC from the perspective of the hierarchy of rules and responsibility of States in cases where their membership of an organisation is linked to a situation resulting in the circumvention of the ECHR.
Number of Pages in PDF File: 23
Keywords: Bosphorus presumption, test of equivalent protection, fragmentation, systemic integration, aRTICLE 31(3)© VCLT, review of the acts of the Security Council, responsibility of states for the conduct of international organisations, ARIO, Kadi
Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2531884