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The
Brownstone Journal >>
Issues >> Vol.
XII Spring 2005
Political Cause and Cost: Human Rights
in the European Union
Jennifer Berlin (CAS 05) is an International
Relations major, minoring in both German and Theater Studies.
She has studied abroad in Dresden and London.
On the subject of human rights protection,
the leaders of the European Union and its Member States seem
to be in complete agreement. Every state has signed on to the
European Convention for the Protection of Human Rights and Fundamental
Freedoms and now, with the proposed Constitution the EU itself
seems set for accession. There also appears to be relative consensus
over the formal inclusion in the new Constitution of the Charter
of Fundamental Rights of the Union, despite early protests by
both Great Britain and Ireland. However, while it looks as though
there is agreement on the Charter's playing a role in ensuring
the protection of human rights, questions exist as to how the
new rights legislation will be interpreted and what appears
to be a straightforward issue becomes increasingly complicated.
Each country in the EU will have a different way of interpreting
the provisions laid out in the Charter and somehow, these differences
will have to be reconciled if the Union is to move forward.
How this reconciliation occurs will be of great importance to
the future of the EU because it will dictate what kind of international
body the European Union will eventually become.
The largest question as to what a binding Charter
will mean for the EU lies in the field of Union competence or
jurisdiction. In Article 51, the Charter itself states that
it "does not extend the field of application of Union law
beyond the powers of the Union" but is limited to "the
Institutions, bodies and agencies of the Union [ . . . ] and
to the Member States only when they are implementing Union law”
(Article II-51, the European Convention). Within the Charter,
however, are included rights, such as the right for social security,
health care, fair and just working conditions, and the right
to strike and seek asylum, in which the Union currently has
no authority. If "the Charter does not entail any transfer
of powers” (Charter of Fundamental Rights FAQ) or "extend
the field of application of Union law," why does it go
out of its way to place under its jurisdiction rights it has
no power to protect? There is no way in which the Charter can
be applicable to these rights if it is only meant to be as it
claims addressed to Union institutions and Member States "only
when [ . . . ] implementing Union law."
The answer to this inconsistency is that the
Charter will not apply to these rights unless it becomes more
binding than it claims to be at present. The presence of social
rights in the Charter makes little or no sense unless they are
made binding for all EU members.
The rights of workers, for example, are hardly
relevant for a Charter which is confined to action by the
EU institutions and does not extend to the Member States;
the effect of those rights would be limited to the EU institutions'
own staff. That is not to say that EU employees are not deserving
of social protection, but one does not need a general Charter
of Fundamental Rights, advertised as a major step forward
to EU citizens, to achieve such social protection. (Eeckhout
109)
In view of the contradictory existence of its
social rights and the self-imposed limitations of Article 51,
the Charter seems to have been written with the hopes that it
would one day become "a general vehicle for human rights
protection" (Eeckhout 110) The presence of Article 51 makes
more sense in view of the fact that it has satisfied the Charter's
critics, such as British Prime Minister Tony Blair, who at first
rejected any notion of a binding Charter. In fact, the article
has been incredibly useful because it have given politicians
like Blair enough evidence to allow them to proclaim to skeptical
voters that the Charter will not affect national sovereignty.
Despite such claims, however, Article 51 may not in the end
be able to "prevent [the] dramatic expansion of EU power"
through the Charter's interpretation (SPUC).
The issue of asylum seekers, for example, does
not at first glance appear to be one in which the Union has
competence and thus the Charter's provisions would not apply
to states dealing with the complicated problem of people claiming
asylum. Upon closer consideration, however, the case does not
remain so clear-cut for two reasons. One is the fact that asylum
seekers cross state borders and, given American history, the
European Court of Justice (ECJ) may, like the U.S. Supreme Court,
claim federal jurisdiction in all matters that move across state
lines (Kovatch). In addition to this, the Union has already
instituted a certain amount of harmonization in asylum policy.
Does any case involving asylum seekers in any State therefore
come under the Union's jurisdiction? "If that is the case,
it would mean that the whole field of asylum action would be
covered by the Charter" and thus any national court could
refer cases involving asylum seekers to the ECJ, making it in
effect a supreme court for EU asylum policy (Eeckhout 109).
Though the laws concerning asylum are beginning
to be harmonized and clarified, the issue of asylum seekers
also indicates the problem of different standards and views
of human rights between the EU States. The social rights clauses
mentioned above are problematic because of the diverse ways
each nation would want to have apply them should they become
more binding that they claim to be at present. For example,
the right to social services could become a powder keg because
of the vastly different ways nations view the right to social
care. In Denmark, social security takes the form of high taxation
and a high level of government sponsored services whilst in
Britain taxes used to provide benefits are not nearly so high
and any efforts to raise them to anywhere near the level of
that in Denmark would be met with severe public resistance.
The right to strike is another prime example. In France strikes
are seen as "proof of a vibrant participatory democracy"
(The Guardian 03-14-03) and the French police often
help organize rallies when a union chooses to strike. The British,
however, see strikes as impediments to the rights of those whose
lives would be hindered or endangered by the strikers. When
the police are mobilized, they more often break up rallies than
support them, such as in the mining strikes of 1984 and 1985
(Abercrombie and Ward 64).
A further example of a right expressed in the
Constitution that seems to have no place within EU competence
and yet illustrates the gaps between the different states is
the right to education. According to the Charter, "everyone
has the right to education and to have access to vocational
and continuing training, [which] includes the possibility to
receive free compulsory education" (Article II-14, the
European Convention) The right to an education can be interpreted
in hugely different ways, from the free public schools and mandatory
education of states like Germany, Britain, and France, to the
shorter, less thorough schooling provided in states like Estonia,
Latvia, and Lithuania. Having "access to vocational and
continual training" is also quite different from actually
having the thing itself, as is the possibility of receiving
a free education versus receiving a free education. The fact
that individual states, and not the EU, are responsible for
educating its citizens did not seem to make any difference to
the authors of the Charter, who included education as a fundamental
right anyway. This seems to imply that at some point, all the
states of the Union will be required to make a certain level
of education available to its citizens. What that level will
be and how it will be made available remains unclear.
The question as to how the states will provide
a "free compulsory education" also reveals possible
future discrepancies between different nations' views on how
to implement the Charter. The German insistence on subsidiarity
(the practice of using only the lowest unit of government needed
to fulfill a given task) will meet with strong resistance from
Britain, which executes regional responsibilities on a national
level (Cousins). Each nation will attempt to interpret the education
clause in its own way to necessitate as little change as possible
and the discrepancies that will occur will make political action
inevitable.
Here the most important question arises: what
shape will that political action take? Or perhaps more importantly,
who will take it? Current debate over the Constitution has taken
the shape of a "highly-fraught bargaining process designed
to redistribute power and streamline decision-making" in
Brussels, which would make the governing institutions of the
European Union itself the main political actors (Black 10-27-03).
The eventual form of these institutions, however, remains undecided.
Their future, particularly that of the Commission, will be determined
by the outcome of present constitutional debates; many of the
new Member States, led by Poland, are fighting against the recommended
changes promoted by France and Germany to retain equal power
in the Commission (Ibid.). In light of this uncertainly, the
second, and perhaps more likely option, is through the European
Court of Justice in Luxembourg. The ECJ has already made rulings
on the extent of Union law and if similar cases dealing with
the scope of the Charter and its interpretations arise, the
Court's decisions could end in the forceful harmonization of
human rights law in the EU.
The possibility of the Union's governing bodies
closing the human rights gap in the EU by creating new legislation
seems feasible when one considers the achievements of the bodies
of the government, in particular the European Parliament, in
promoting and improving human rights protection on a European-wide
scale. In the 1990's, for example, the European Parliament "called
for the abolition of the death penalty to be a criterion for
accession to the EU" (European Parliament 13). In 2002,
Turkey and Yugoslavia, countries with EU aspirations, abolished
the death penalty except during times of war, revealing the
strong influence the Union's governing bodies wields (Amnesty
International).
The Commission also "plays a key role
in defining the Union's human rights policy" (EU 09-11-03)
Its European Initiative for Democracy and Human rights in particular,
with a budget of 100 million Euros, has implemented positive
developments and helped smooth the way to accession in many
central and eastern European countries. The Council has traditionally
"been more concerned with human rights as an aspect of
foreign policy" but has, since the Cologne decision in
1999, started to focus on protection within the EU as well (Meehan
82). The new attention the EU bureaucracy has given to human
rights within the Union evidences itself in the tackling of
pertinent human rights issues within its borders, such as the
regulation of biotechnology and personal data. Both of these
problems are currently being debated in the Parliament and the
Commission to "ensure that they do not undermine respect
for human rights" (European Parliament 5) and raise questions
as to where the boundaries of human rights law should be established.
It is important to note, however, that while these issues exist,
they have not been addressed by either the Commission or Parliament.
In addition, Parliament's published documents do not include
the more difficult and controversial matters, such as the right
to an education and social assistance. Still, the possibility
exists that these subjects will be debated by the Union government
at a future time. It is at present too early to ascertain what
direction the EU governing bodies will take in regard to these
issues or even whether or not they will deal with them.
It is certain, however, that the political
bodies of the Union hve had great success in the human rights
field. The EU's human rights projects in Europe have implemented
incredible achievements in many countries, most notably the
former Communist countries of the East that have now joined
the Union (Ibid. 12-13). Its use of the Copenhagen Criteria
in addition to the financial and structural support it gave
to the new democracies improved the situations of many minority
populations in Central and Eastern Europe and helped lessen
the gap in human rights protection between the countries of
the East and those in the West (Ibid. 13). If the governing
bodies of the EU are as successful in developing new legislation
for the Union itself as they have been in promoting and implementing
change in other countries, the issue of different levels of
interpretation could easily be solved.
Despite the optimism that arises when one examines
the success the Union has had in implementing human rights progress
in Europe, it is important to remember that with ten new Member
States having joined in 2004, decision- and policy-making will
become much more difficult. Enlargement in the past "placed
increasing pressure on institutional arrangements" which
in turn made the "decision-making processes [ . . . ] far
less effective as time wore on" (Lewis 234). While the
proposed Constitution looks to solve these difficulties in the
reorganization of the Union's bureaucracy, they do still exist
and the Parliament, Commission, and Council have all come under
fire for their inability to take decisive action. The European
Parliament in particular was not created as a strong body but
"has only slender powers of executive formation or dismissal"
(Lord 178). With the simultaneous accession of ten new states,
the largest seen in EU history, inefficiency in the other two
will also likely increase because "enlargement has increasingly
exacerbated the weaknesses and acknowledged shortcomings in
EU structure" (Lewis 235). Finding a way to break through
these shortcomings and negotiate laws acceptable to all 25 states
will prove a difficult and perhaps even an impossible task.
If the governing bodies do fail to find a compromise
solution to the different levels of interpretation within the
Member States, the Courts will have to step in and do it for
them. This possibility seems most likely when one looks at the
only other example history has of a melding of states into a
single political body: the United States of America. In the
1950's for example, the United States was torn by the Civil
Rights movement. When Congress was unable to reconcile differences
of opinion over the interpretation of rights stated in the U.S.
Constitution, the Supreme Court ended up doing it for them.
In Brown vs. Board of Education, for example, the Court not
Congress ended segregation by declaring it unconstitutional
(Kovatch). By so doing, it effectively ended the racist policies
of the Southern states, and eventually the standards of human
rights and minority rights in the South moved closer to those
in the North.
One could draw a parallel between the U.S.
and the EU and conclude that should the countries of the EU
be unable to reconcile their differing interpretations of the
rights laid out in the Charter, the Court of Justice will, like
the U.S. Supreme Court, do it for them. It is entirely possible,
even probable, that cases will arise over the rights laid out
in the Charter and whichever national courts they go to could
refer them to the Court in Luxembourg. Provided the Court accepts
the case as falling within Union competence (which depends on
how they interpret Article 51 of the Charter, as in the hypothetical
cases of asylum seekers mentioned above), in its ruling it would
inevitably end up interpreting the meaning of the Charter for
the entire Union.
Suppose for example that a British citizen
loses his or her job and is unable to immediately collect social
security. That person then decides his or her rights have been
violated since "everyone residing and moving legally within
the European Union is entitled to social security benefits and
social advantages in accordance with Union law and national
laws and practices" (Article II-34, the European Convention).
The British court, unable or unwilling to determine the appropriate
course of action, appeals to the Court of Justice and the Court
ascertains that the matter falls within their jurisdiction.
The judges must then decide what it means to be "entitled
to social security benefits and social advantages." They
could rule that the British government fulfilled its obligation
under "national laws and practices," in which case
the Charter would be interpreted to mean that any level of national
service is enough to qualify as human rights protection. The
states would therefore continue implementing social security
policy in the same way they have in the past.
On the other hand, the Court could decide that
Britain was in violation of the Charter and declare that the
right to social services as laid out in the document requires
the government to supply a certain level of unemployment benefits.
Whatever level the Court decides on, it will fall above or below
that of most if not all the Member States. The states, therefore,
would be required to adapt their laws to come into line with
the decision of the Court, whether or not they agreed with the
interpretation. In thus rendering its decision, the Court of
Justice would act like an EU Supreme Court and forcefully decide
for the states what the Charter means in terms of governing
policies.
The ECJ as an answer to unifying Union policy
under the Charter seems more likely when one examines the development
of human rights legislation in the EC and EU. Historically,
the Court in Luxembourg has been the main instrument that "took
the initiative over other institutions in opening the potential
for a rights discourse in the Community order" (Meehan
82). The
economic nature of EU cooperation in the
1950's and 1960's did not result in interpretations of [human]
rights. It was only in 1969 that the Court of Justice recognized
fundamental rights as general principles of Community law
following clashes between Community legislation and human
rights. Since then the Court of Justice has given priority
to these values through its case law and, in 1989, it enshrined
them in the preamble to the Single European Act. (EU
09-11-03)
Though the different governing bodies of the
EU have since then instituted their own human rights policies,
it was the Court which brought them to the forefront of the
Union. Given this past history as well as the weaknesses present
in those other institutions, it is distinctly possible that
the ECJ will continue to step in and decide what direction the
Union will take in regards to the Charter's interpretation.
Just as Luxembourg decided in the 1964 Costa case that EU law
had supremacy over national laws, it may well decide that the
EU Constitution, and in it the Charter, will also be binding
upon the States (Wincott 87).
If the Court of Justice is to be the deciding
factor in the unification of human rights interpretation in
the Union, the American example indicates that the EU will develop
into some type of state. As is the case with the proposed Constitution
for the Union,
the Bill of Rights to the U.S. Constitution
did not apply to the states. Furthermore, the Ninth and Tenth
Amendments [ . . . ] were designed to prevent centralization
of power in the federal government. Eventually, however, U.S.
courts concluded that the provisions of the Bill of Rights
were applicable to the state governments because they were
"fundamental" to an "American scheme of justice."
The [ . . . ] Ninth and Tenth Amendments did not stand in
the way of that conclusion. (SPUC)
The U.S. Supreme Court's decision to hold the
states accountable to the Bill of Rights eventually led to the
consolidation of power in Washington and the formation of a
strong federal government supported by the less powerful states
(Kovatch). In a similar way, if the ECJ decides the rules laid
out in the Charter do apply to the different nations, the path
will be set for a supranational state whose real power lies
not in London, Paris, and Berlin, but in Brussels.
On the other hand, the power of the Court may
not be without limit. The national courts will challenge its
influence, particularly the German Constitutional Court, who
may not be willing to facilely accept its authority. During
the ratifying process of the Treaty of Maastricht for example,
the Herr Brunner case went before the German courts, challenging
the constitutionality of the Treaty as regards German law. The
Court, while upholding the constitutional compatibility of the
Treaty, "explicitly rejected the general supremacy of Community
law [ . . . ] concerned to establish that the ECJ alone did
not have the competence to decide the extent of its own jurisdiction"
(Wincott 89). In its decision, the German court delineated the
two courts as equal, one having supremacy over national and
the other over Union laws. As this case reveals, there are bound
to be issues raised over the ECJ's competence and power. However,
as with the American example, the Court itself is the body that
will most likely settle them.
The German Court's depiction of the Court's
power supports the ideas of those who argue that the Charter
will be nothing more than it claims: a source of protection
from government only when "implementing Union law"
(Article II-51, the European Convention). They believe the future
of the EU lies in the mutual cooperation of the states and its
future will not be that of a "super-state" but of
an "extensive and intense form of inter-governmental cooperation"
whose policies will be dictated by the nation states, not the
Court. Instead of pressing for the complete unification of all
human rights legislation, the Member States will negotiate as
needed to ensure things operate smoothly, and will be able to
"circumscribe, monitor, and control the extent of these
apparently supranational institutions" (Bromley 288). They
will therefore remain free to interpret the Constitution and
Charter as they wish, much as France and Germany have chosen
to freely interpret the EU's budgetary rules. The ECJ will be
utilized as a place to pass judgments on cases dealing with
Union laws and the EU will have some makings of a state, such
as a European army, but these trappings will not equal the power
of the national states. Given that Brussels has a civil service
of 23,000, compared with 480,000 in Whitehall alone, this view
is not without merit (The Guardian 09-17-03). One must
bear in mind, however, that although the Charter does not encroach
on national powers now, it does not mean it will not do so in
the future. Constitutions are meant to evolve and the text of
the Charter indicates the EU's proposed constitution was written
with such an evolution in mind.
Whether or not the Union remains an organ of
inter-governmental cooperation or develops into "a new
kind of political system" remains to be seen (Bromley 293).
The development of the Constitution is an ongoing process and,
as ever, law will be decided by politics as the foreign ministers
and heads of state continue to debate the form and content of
the proposed document. The new Constitution will in all likelihood
be an altogether altered document from the one unveiled by Valery
Giscard d'Estaing, reflecting the battles fought by all 25 nations
as they look to further their own aims. While it is impossible
to determine what direction the Convention will take, or even
to know whether or not the States will ratify whatever type
of Constitution emerges from it, the implications for the future
of the European Union are incredibly significant.
The formal inclusion of the Charter of Fundamental
Rights of the European Union is arguably the single most important
part of the EU's proposed Constitution. The political direction
the Union will take will be determined by how the Charter will
be interpreted and who will be responsible for interpreting
it. The strongest indications point to that responsibility falling
to the Court of Justice in Luxembourg, whose rulings could lead
to the unification of human rights protection across the EU
and therefore the increased political power of the Union over
the Member States. Whether or not the Union does develop into
a new, unique international political body with legitimacy and
authority remains to be seen. Regardless, the consequences of
a formally binding Charter on the political development of the
European Union will be felt for many years to come. TBJ
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