Tarptautinio teisinio papročio veikimas Europos Sąjungos žmogaus teisių apsaugos srityje

Abstract

After the Lisbon treaty came into force a great need to analyse European Union‘s accession to European Convention on Human Rights (hereinafert - ECHR) emerged. The article takes a look to this accession in a wider perspective seeing rights and freedoms of ECHR as an international custom binding all States universally. Therfore, the first part of the article analyses international custom, specifically, two constituent elements of international custom: state practice and opinio juris. The second part of the text deals with demonstrating that the rights and freedoms of the ECHR conform the elements of international custom. Thus a conclusion is reached that rights and freedoms of ECHR is an international custom indeed. Having reached this conclusion a several really important observations can be made. Firstly, rights and freedoms of ECHR are binding all states of the world regardless whether the states accede to the Treaty, or whether not. Initially, the binding character of the rules of the ECHR comes not from the treaty itself, but from its‘ customary nature. Secondly, the international custom embed the core values and therefore are primary rules. But international custom can only be truly effective and efficient when implemented by national law. The author suggests that the rights and freedoms of the ECHR can only be efficiently protected if those rules are adopted into constitutional bill, which would be higher hierarchically than ordinary bills. The whole nature of international custom suggest that it is higher than any national laws, but the effectiveness of customary rules can be achieved only through the measures of national law. Adoption of the customary rules into national law and placing it in a constitutional bill would create primacy of the rights and freedoms of ECHR over ordinary laws of the State and, therefore, would be defended by the State and the courts of the State. It can be concluded that European Union‘s accession to the ECHR is not the best way to ensure the protection of human rights in European Union. It is much more efficient to protect human rights at a national level and increase the capacity of the European Court of Human Rights.