The Doctrine of “Equivalent Protection”: Uncertainty on the Principle of Separation in the System of International Responsibility of Organizations

Abstract

The international organizations have independent legal personality which makes them responsible for their own wrongdoings. Therefore, member states of these organizations, are not responsible due to their mere membership. The European Court of Human Rights' decision in the Bosphorus Case can be considered as a key case in the context of the Member States' responsibility for the actions of international organizations. In this case, the European Court of Human Rights sought to determine when member states were responsible for actions carried out in the European Union. The doctrine of equivalent protection which first introduced in the case-law of the European Court of Human Rights, and in particular in the Bosphorus case, undermines the independent personality and separate responsibility of the international organization and made an exception to it. Under this doctrine, EU member states will be internationally responsible if they do not protect fundamental human rights at a level equal to the European Convention on Human Rights. In other words, when a state transfers its competence to an organization, it is necessary to ensure that it fulfills its other international obligations. This article analyzes how the European Court of Human Rights monitors the European Union's performance in the scope of human rights.

Keywords

• international organization responsibility
• principle of separation
• european court of human rights
• bosphorus case
• the doctrine of equivalent protection