BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

In this respect, it is appropriate for the EU and the Member States to clarify their responsibilities whenever they accede to international human rights obligations. Indeed, such issue has been very intensively addressed in the process of the EU’s preparations for accession to the European Convention on Human Rights. However, also with regard to soft law obligations in the field of human rights protection, the question of shared responsibility shall be examined carefully. When it comes to the accession to an international human rights treaty, the EU and the Member States need to cope with one of the main motives of EU law, according to which international obligations and their institutional assurances must not undermine the autonomy of the EU’s legal order. 38 This assignment was confirmed and refined by the Lisbon Treaty in the new Protocol No 8, which sets out a framework for EU accession to the European Convention on Human Rights. Under Article 1 of the Protocol, the accession agreement reflects the need to preserve the specific features of the Union and EU law, in particular with regard to the right to make individual complaints against the EU or its Member States. Article 2 of the Protocol further provides that the notified accession agreement must not affect either the competence of the EU and its authorities or the relationship of the Member States with the European Convention on Human Rights. In any case, accession to the European Convention on Human Rights would raise major issues regarding the shared responsibility of the EU and the Member States for violations of the Convention. Under EU law, Member States, in principle, have a certain margin of appreciation when they implement and apply EU norms. In some cases, however, Member States do not have a choice. If a violation of the European Convention on Human Rights is caused by a directly effective EU regulation, the EU shall be held liable. The situation is more complicated, if the violation is caused by EU primary law which enters into force only after ratification by the Member States. These considerations are related to Article 1 of the above quoted Protocol No 8, which states that individual applications shall be “correctly” addressed to Member States and/ or the EU. In order to solve this problem, negotiators included a so-called co-respondent mechanism into the draft accession agreements. 39 Another case is EU accession to the Convention on the Rights of Persons with Disabilities (CRPD). The CRPD, which was adopted by the United Nations General Assembly in 2006 and entered into force in 2008, is one of the nine key UN human rights conventions. 40 The Convention is specific in that, according to its Article 42, it allows accession not only to sovereign states but also to so-called “regional integration organizations”. The European Commission actively promoted this provision during the 38 See, for example, Opinion No. 1/91 on the draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area, and Opinion No. 1/00 on the proposed agreement between the European Community and non-Member States on the establishment of a European Common Aviation Area. 39 KORENICA, F. The EU Accession to the ECHR: Between Luxembourg’s Search for Autonomy and Strasbourg’s Credibility on Human Rights Protection . Heidelberg, 2015, p. 163-229. 40 For an overview, see OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS. The United Nations Human Rights Treaty System. Fact Sheet No. 30/Rev. 1, New York, 2012.

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