Croatian Yearbook of European Law and Policy (Dec 2023)
Attribution and Responsibility Regarding CFSP Acts in Light of the Renegotiation of the EU’s Accession to the ECHR
Abstract
The international responsibility of international organisations and that of the sui generis European Union (EU) is one of the most debated issues of international law. At the heart of the question of international responsibility lies the attribution of conduct and responsibility. On this question, the Articles of the Responsibility of International Organizations (ARIO), a final draft of which was adopted in 2011 but not turned into an international treaty, contain a much-de- bated set of rules arguably based on customary international law. Attribution vis-a-vis the EU is of particular relevance in the context of the European Convention of Human Rights (ECHR), to which the EU is not yet a party but to which it is planning accession, which would allow for external human rights reviews by the European Court of Human Rights. The ECtHR does not necessarily approach international responsibility and attribution in line with the Articles on the Responsibility of International Organizations. This factor is of crucial relevance to the EU – both now and also following its possible accession to the ECHR. This question, however, needs to be nuanced with regard to the special legal nature of the Common Foreign and Security Policy (CFSP) and the acts adopted therein, as this has proven to be one of the deciding points for the negative opinion of the Court of Justice concerning the EU’s accession. This paper first looks at the current state of play, then analyses the viewpoints of the EU Court of Justice reflected in its binding opinion on the original draft accession agreement of the EU to the ECHR, and subsequently examines the renegotiated draft accession agreement – prepared in 2023 – in this regard. The novelties of the renegotiated accession agreement regarding the attribution of CFSP acts are examined in detail, focusing on the reattribution concept proposed by the EU and its relation to the ARIO, highlighting a number of dogmatic problems, including the probable effect of reattribution on access to legal remedies.
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