The European Court of Human Rights Facing the Security Council: Towards Systemic Harmonization

Abstract

The ECtHR is in the process of refining its conceptual tools for determining the responsibility of the States Parties to the ECHR acting in execution of a Security Council resolution. Where the implementation of resolutions involving the use of force is concerned, the Court's recent case law has shown a shift towards systematic acceptance of the extraterritorial scope of the ECHR. As to whether the conduct in issue should be attributed to the States Parties or to the UN, the Court now makes a clear distinction between operations authorized by the Security Council and UN peacekeeping operations. The implementation of UN economic sanctions will be addressed differently according to whether or not the respondent State is a member of the EU. The criterion of ‘equivalent protection’ is only applicable in the former scenario. And in any event, it needs to be applied cautiously on a case-by-case basis. As regards the enforcement of economic sanctions by non-EU Member States, the Court tends to interpret Security Council resolutions in a manner consistent with the obligations deriving from the ECHR. More generally, the Court's approach is oriented towards systemic harmonization rather than towards normative conflict.