On divergence in European human rights laws: the European Convention on Human Rights and European community law: a claim of non-divergence

Varju, Márton

Abstract

The issue of divergence in human rights protection (adjudication) between the law of the European Convention on Human Rights (ECHR) and European Community/Union (EC/EU) law has been in the centre of academic attention for decades. The position that there are instances of divergence and there is a risk of divergence between the two legal orders has gained authority in academic discourse despite the fact that its premises were subject to challenges on numerous occasions.

The claim that human rights protection in EC law is divergent from that under the ECHR appears to suffer from certain shortcomings. First, it is not clear how the
divergence claim addresses the question of incommensurability that unavoidably emerges in a comparison of judgments originating from different jurisdictions. Second,
the divergence claim has largely eluded to address the quality of flexibility possessed by ECHR and EC human rights law. Both legal orders operate mechanisms of flexibility that enable a treatment of differing human rights solutions other than rejection.

In reaction to these problems the present thesis advances the arguments of flexibility and similarity. The flexibility argument holds that the issue of divergence is largely
neutralised by the ability of ECHR law (and to a lesser extent of EC law) to react to the problem of divergence flexibly. This entails that the human rights solutions of
Community courts could often be accommodated within the flexible framework of ECHR law. The similarity argument provides that the style of human rights protection
in ECHR and EC law is similar. The comparison of styles is based on a general system of analysis that aims to avoid the problem of incommensurability.

The two arguments are not independent - the success of each argument depends on the availability of the other. The limits of flexibility are found in the requirement of
similarity and the impreciseness of the similarity argument is corrected by the potentials inherent in the flexibility argument. On this basis, the relationship between ECHR and EC law could be described as a flexible status of non-divergence.

Citation

Varju, M. (2008). On divergence in European human rights laws: the European Convention on Human Rights and European community law: a claim of non-divergence. (Thesis). University of Hull. Retrieved from https://hull-repository.worktribe.com/output/4208532

• Thesis Type: Thesis
• Deposit Date: Aug 15, 2011
• Publicly Available Date: Feb 22, 2023
• Keywords: Law; European law; Human rights - Law and legislation
• Public URL: https://hull-repository.worktribe.com/output/4208532
• Additional Information: The Law School, The University of Hull
• Award Date: Apr 1, 2008