欧盟宪法草案对欧盟人权保护机制的影响 (The Draft Constitution and Human Rights Protection in European/周大勇(10)
Based upon three aspects above, it is reasonable to be aware of, that before the draft Constitution for Europe materialized, it already existed two de facto mechanisms supervising and providing legal protection for human rights in the scope of European Union. One of them is the Council of Europe based in Strasbourg, which provides basic standard of human rights via the Convention and other guideline mechanisms , and oversees its enforcement with the judiciary body: the European Court of Human Rights (ECtHR hereafter). The other system, however, was gradually established during the progress of EU, which consists of two legislative bodies in Members States and Union level respectively, and the ECJ as the juridical instrument. The two systems, however, are not definitely distinguished with each other, but overlap and work in coordination. Because on the one hand, the fifteen European countries made commitment to respect the ECHR, and agreed to submit themselves to the jurisdiction of ECtHR in Strasbourg, in spite of that they have transferred some sovereign competence to Brussels. On the other hand, the ECtHR still plays a role as an effective co director of the ECHR legal regime, which maintain its unofficial partnership with the ECJ, whose own doctrine obliges it to honor the ECtHR whenever the Convention is relevant. Moreover, the EU is still lacking in ample legislation with respect to human rights. The main work of ECJ is to ensure that EU law is not interpreted and applied differently in Member State. However, the current circumstances might be changed according to the new Constitution for Europe.
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