Solving Europe’s Binary Human Rights Puzzle. The Interaction between Supranational Courts as a Parameter of European Governance

As the European Union has become ever more powerful in terms of political output, it has also turned out to be a potential source of human rights violations. While national governments have disagreed on setting up consequential control mechanisms for several decades, the European Court of Justice and the European Court of Human Rights pre-empted intergovernmental choice. The European courts’ paths unexpectedly crossed when they were both impelled to work out a way to deal with a twofold human rights conundrum situated at the EU level. Turbulent interaction between Europe’s two supranational courts has not only led to a relative improvement of the protection of human rights, but has also deeply transformed the course of European integration. The courts’ increasingly nested linkage has given rise to new forms of supranational judicial diplomacy between European judges. As a result of their evolving relationship, which is simultaneously underpinned by competitive and cooperative logics, the traditional opposition between an “economic Europe” and a “human rights Europe” has been overcome and the EU’s accession to the European Convention on Human Rights is high on the political agenda. Yet, this process of integration through human rights remains a fragile and incomplete endeavour. Just as in co-operative binary puzzles where two players must solve the game together and where both lose as one of them tries to win over the other, solving Europe’s binary human rights puzzle has required of European judges a new way of thinking in which it’s not the institutions, but their linkage that matters.