The proposed European Union Charter of Human Rights


Comments by Statewatch to the House of Lords Select Committee on the European Communities on the proposed European Union Charter of Human Rights

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We welcome the opportunity to comment upon the planned adoption of a Human Rights Charter on the European Union. The following comments address all of the general issues raised by the proposed Charter, and some specific points, with some emphasis on the particular issues of the method of adoption of the Charter, transparency, and police and criminal law.

The process by which the Charter is being drawn up needs to be addressed. During the discussions in the General Affairs Council and in COREPER the EU member states agreed that the Charter would give no new competencies and lead to no Treaty amendments - it would simply pull together existing "rights". The "Body" set up to draft the Charter, while including national and European parliaments, excludes civil society - who are simply invited to send in their views. Meaningful rights are those demanded by citizens and civil society not "rights" handed down by governments.

On the general level it must be observed that since the fall of the Berlin wall in 1989 the West (including the EU) has not espoused "liberal democracy" with the same vigour or belief. Nearly every measure agreed under the rubric of "justice and home affairs" and the Schengen agreement since the late 1980s has led to less freedom and less accountability to democratic institutions and more central control and the creation of EU-wide surveillance measures. When the need for the privacy of the individual and the civil liberties of the citizen have been balanced against the demands of the "law enforcement agencies" and the "law and order" lobby it is the latter who have won out.

1. The need for an EU Charter

a) Gaps in Protection

There is a strong case for an EU Charter to ensure that the EU institutions ensure protection of human rights when adopting EU policies. At present, that protection cannot be ensured directly because the European Community is unable to accede to the European Convention of Human Rights (Opinion 2/94, [1996] ECR I-1759). Nor has the Community acceded to any other human rights treaties, although a recent Protocol to the Council of Europe Convention on Data Protection permits the Community to accede to that treaty. As for the European Union, as distinct from the Community, it is still uncertain whether it has sufficient international legal personality to enter into any treaty obligations.

It might be argued that the development of human rights as part of the general principles of Community law by the Court of Justice, now confirmed by Article 6(2) EU, has obviated any need for a Human Rights Charter. However, Article 6(2) EU refers only to the national constitutional rules of the Member States and to the 1951 ECHR. This is a narrower range of sources for human rights than the range recognized by the Court of Justice, which includes all international human rights treaties upon which the Member States have collaborated or which they have signed (see most recently the Order in Case C-17/98, Emesa Sugar, 4 Feb. 2000). Moreover, it is narrower than the range of sources recognized by the EC and EU Treaties. The EC Treaty refers to the Geneva Convention on refugees and its protocol in Article 63 EC, and to the Council of Europe 1961 Social Charter in Article 136 EC. Part II of the Treaty also refers to the rights of EU citizens and Article 255 EC refers to the right of access to documents.

It is possible to complain about acts of the Member States before the Strasbourg institutions, even where they have acted pursuant to the primary law of the EC (Matthews. v. UK, Feb. 1999) or where their acts have implemented EC measures (Cantoni v. France, Procola v. Luxembourg). However, the Strasbourg court confirmed in Matthews that it could not entertain complaints directly against the EU institutions. This means that complainants face a lengthy process before they can raise a complaint about national implementation of EC law in Strasbourg. In many cases, they will have no remedy before the Strasbourg institutions, because an EC or EU act will not be implemented into national practice. Moreover, with great respect, the Strasbourg institutions will not necessarily have an accurate understanding of the Community rules at issue in such cases. There is no EC representative on the Strasbourg Court and the Community cannot submit observations. The effect of this can be seen in the Matthews judgment. In that case, it is arguable whether the Strasbourg Court correctly characterized the Act on elections to the European Parliament; and with great respect, the majority judgment erred in its description of the co-decision procedure which applied at the relevant time, and the minority erred in describing the scope of Community law. The Council of Europe's political institutions share this difficulty, with the Parliamentary Assembly and Committee of Ministers asserting quite opposite conclusions on the disputed issue of the legal personality of the EU, the Assembly's continued uncertainty of the distinction between the EC and the EU, and the misunderstanding of the EC Commission's powers evident in one Opinion of an Assembly Committee considering the EU Human Rights Charter.

The EC's and EU's lack of formal human rights commitments also make it difficult to complain about their actions before other international human rights bodies tasked with supervision of human rights obligations, for example the experts implementing the Social Charter and the UN Torture Convention.

The Court of Justice has attempted to fill these gaps by its case law, in which it takes account of international treaties beyond the 1951 ECHR as mentioned in Article 6(2) EU, and which takes increasing account of the case law of the Strasbourg institutions. However, there are still continuing conflicts between the jurisprudence of Strasbourg and Luxembourg, and between national courts and the European courts. These gaps threaten the protection of human rights within the Union and the effectiveness and uniformity of EC law.

b) Subsidiarity and Competence

There is no purpose to the European Union taking upon the mantle of enforcing the national and international human rights obligations of the Member States, where there is no connection with Community or Union law. In such cases there are already mechanisms at national and international level to ensure the protection of human rights, and the addition of an EU system would amount to unnecessary duplication and possibly lead to conflicts in interpretation of the relevant obligations.

The remaining issue is what role a Human Rights Charter should play in the issues that fall within the scope of the human rights jurisdiction of the Union. Within the "first pillar", these are:

the interpretation of EC acts in light of human rights principles (case law since Stauder); the validity of EC acts for breaching human rights (possibility confirmed in Opinion 2/94); the implementation of EC acts by Member States (for instance, P. v. S., Johnston); and the protection of human rights when Member States derogate from EC rules (ERT, Familiapress).

The first three of these situations fall squarely within the scope of an EU Human Rights Charter. In particular, the Charter must deal with the second issue, for the EC courts have exclusive competence over the invalidity of EC acts (Foto-Frost judgment). However, it must be doubted whether a Charter has to deal with the fourth issue. In ERT and Familiapress, the Court of Justice merely noted the existence of human rights obligations governing derogations, and left it to the national court to draw the conclusions. Since such situations, to the extent that the derogation from EC rules is valid, are essentially national matters, there seems no need for an EU Human Rights Charter to address them. This approach would simply confirm the existing division of competence and responsibilities between the EC and the Member States.

As for the "third pillar", as altered by the Treaty of Amsterdam, Article 46 EU now gives the Court of Justice human rights jurisdiction equivalent to its jurisdiction in the first pillar. The comments above should therefore apply equally to police and criminal cooperation.

As for the "second pillar", the Court of Justice has no jurisdiction, unless the dispute relates to access to documents or to the correct "legal base" for a measure adopted under the second pillar. However, this does not necessarily preclude the application of the EU Charter to the Union's actions. The case law of the ECHR makes clear that states are liable for any act which they commit, even if committed outside their territory (Louzidou v. Turkey). By the same token, the Union should be bound by the same human rights principles it must follow internally when taking action abroad, notably when sending personnel or spending money within the context of the Common Foreign and Security Policy. This will be even more important after the absorption of the Western European Union into the EU.

2. Status of the Charter

a) Legal Effect

There seems little purpose to a purely declaratory document, and adopting one may give rise to a cynical reaction among the public about the EU's seriousness in protecting human rights. However, since it seems unlikely that Member States are willing to accept a binding document at present, the following discussion addresses the status of the Charter under both the "binding" and "non-binding" scenarios.

If the Charter were to have binding legal effect, it would obviously be appropriate to incorporate it into the Treaties. The simplest approach would be to attach it as a Protocol to the EC, EU, and Euratom treaties (leaving out the ECSC Treaty because it is due to expire in July 2002). A Protocol has the same legal force as the initial treaty according to the normal rules of international treaty law, and Article 211 EC expressly applies this rule to the EC Treaty. Moreover, the Court of Justice has repeatedly ruled that it has jurisdiction over the interpretation of Protocols attached to the EC Treaties, and has applied this jurisdiction in practice. It would be appropriate to give binding human rights commitments a rank equal to the other primary law of the Communities and Union, in light of the constitutional importance of the commitments.

The alternative, if the Charter is binding, is to adopt it as a secondary act of the EU institutions or as a free-standing measure. The former approach would be undesirable not just because it would reduce the status of the Charter, but because the Charter would have to be separated into different measures, in light of the "pillar structure" of the Union, and there might be problems determining the "legal base" of the EC act endorsing the Charter within the first pillar. The latter approach might leave the legal effect of the Charter and/or the European Courts' jurisdiction to interpret it ambiguous.

If the Charter were to be non-binding, it would still be appropriate to attach it to the Treaties rather than simply leave it as a non-binding independent measure. This could be done by adopting it as a declaration to the Final Act to the new Treaty to be agreed in December 2000. This approach would respect the non-binding nature of the Charter while still recognizing its constitutional importance. Moreover, it would clarify the EC Courts' ability to interpret the Charter. The ability of both EC Courts to interpret Declarations attached to the Treaties has been confirmed by their jurisprudence referring on several occasions to the Declaration on transparency attached to the Maastricht Treaty.

b) Amendment

The Select Committee has not specifically asked a question about the procedure for amending the Charter, but it may prove desirable to consider this issue. it would be preferable to agree any amendment it by a more inclusive method than that by which it was adopted (see section 5 below). At the very least, the current system for agreeing the Charter should be used again.

As for the entry into force of new amendments, if the Charter were binding, and attached as a Protocol to the Treaties, it would be inappropriate to bring such amendments into force by a majority vote of the Member States. Rather, it would be preferable to adapt the existing Treaty provisions concerning the amendment of certain fundamental rules, and provide for amendments to enter into force after the assent of the European Parliament and the approval of each Member State in accordance with its constitutional requirements.

If the Charter were non-binding, it would still be preferable for amendments to enter into force after the assent of the European Parliament and the approval of each Member State in accordance with its constitutional requirements. This would allow maximum public discussion of the need for amendments.

c) Enforcement

There is a strong case for providing for full control of EC and Union acts by:

amending the EC and Euratom Treaties to allow the Community to accede to the ECHR and other human rights treaties (although arguably Opinion 2/94 only provides an obstacle to EC accession to the ECHR); and amending the EU Treaty to confirm expressly the legal personality of the EU and to expressly allow it to accede to human rights treaties within its competence. However, this seems an unlikely prospect in the medium term, so the following comments are addressed to the current situation, where the EC and EU are non-signatories of most human rights treaties.

The chief drawback of the EC's and EU's non-signatory status is that the activities of the institutions, including the judgments of the EC courts, are not subject to formal overview by independent human rights bodies. This gives rise to the gaps discussed in Section 1 above: the national courts may be tempted to jeopardize the uniformity of Community and Union law by rejecting the judgments of the Court of Justice, while the Strasbourg Court and other international human rights bodies might sit in judgment on the EC or EU indirectly, without a formal system which would allow the EC or EU to defend itself and explain its legal system.

The status of human rights in the EC and EU legal system, and the means of enforcement of the Human Rights Charter, can be improved without any change to the competencies of national courts, the EC courts, and the Strasbourg institutions. The simplest way of ensuring this is to provide for a system for expanded interventions before the Court of Justice and Court of First Instance. There is already provision for Norway, Liechtenstein and Iceland to intervene before the Court in connection with the European Economic Area, and this possibility will be expanded once the agreement with Norway and Iceland on the Schengen acquis comes into effect. This could be expanded by allowing outside bodies to submit observations on human rights aspects of a case under consideration.

Which bodies should be able to submit observations? First, the United Nations High Commissioner for Human Rights has considerable experience as an intervener in national judicial proceedings, so is the most obvious candidate for a right to intervene. There are a number of non-governmental organizations in the Member States with experience of intervention before the courts also, and specific rules could be drafted that would allow them to participate. The rules could also allow observations to be submitted by international human rights organizations, in particular the Strasbourg institutions. After the entry into force of Protocol 11 to the ECHR, perhaps the Commission on Human Rights would be the most appropriate body, since it no longer has a judicial role. It would also be possible to enlarge the role of the EU ombudsman to include submitting observations before the Court on human rights matters (along with matters relating to maladministration by the institutions), or to create a separate independent EU office with such a role.

It might be objected that these observations would create additional work for the Court of Justice. However, it could be agreed formally or informally that the observations of such intervenors must be submitted in the Court's working language (French), with a possible further proviso that the intervenors are responsible for the cost of translations into the language of the case. Also, the intervenors should be prevented from supporting one of the parties to a direct action, and restricted to making comments only on the protection of human rights. If need be, they could even be restricted to making written submissions only, although this would be undesirable. These interventions would not preclude the parties before a national court, the parties in a direct action, or any other intervenors from making observations about the protection of human rights. But it is inappropriate to leave human rights issues solely in the hands of the existing parties and intervenors, because they have a focus beyond the protection of human rights.

There is also much to be said for amendment of Article 230 EC to allow for direct actions by individuals or groups if they allege that a Community act has breached human rights. The present standing rules should be relaxed to allow such actions by any individual directly concerned by such a measure, or by any group representing a number of such individuals. This would avoid the overly-strict interpretation of "individual concern" applied to date by the Court of Justice, and would in particular provide protection for immigrants and asylum-seekers if there is no change to the current Article 68 EC, which restricts their ability to question the validity of EC acts before the Court of Justice.

As regards the "third pillar", an identical Article should be inserted in Article 35 EU. This is necessary because at present there is no possibility whatsoever to bring a direct action to annul acts of the Union for infringements of human rights within the context of police and criminal law. Moreover, in four Member States it is impossible to bring an indirect action to do so, because those Member States have not opted in to the Court's preliminary rulings jurisdiction under Title VI EU.

At political level, the Rules of Procedure of the political institutions should be amended to require analysis of the human rights compatibility of any proposed action. This analysis should be published so that the assessment of the institutions can be fully discussed before the proposed action is agreed. The Community institutions should also be required to report regularly on the respect of human rights within their competence.

3. Scope of the Charter

Who should have obligations?

If the Charter is binding, it would be preferable to provide expressly that it has horizontal effect upon private parties, to the extent that national and international human rights rules recognize the horizontal effect of human rights obligations upon private parties. However, this issue is not generally relevant to police and criminal law.

Who should the beneficiaries be?

The ECHR and most other international human rights treaties cover all persons within the jurisdiction of a Member State. The exception is several other Council of Europe treaties, particularly those addressing social rights and immigration, which refer only to the nationals of the contracting parties, along with refugees and stateless persons (see the Council of Europe Social Charter).

EC law only restricts itself in scope to EC nationals expressly in Part II of the EC Treaty, referring to EU citizenship, and in Article 43 EC, which concerns the rights of establishment. Article 39 EC gives rights to "workers" of the Member States, although the legislation giving effect to this Article refers only to EC nationals. The Court of Justice has ruled that the Treaty's free movement rights in principle only cover EC nationals (Case C-230/97 Awoyemi [1998] ECR I-6781), although this judgment makes clear that other areas of EC law (such as transport law) apply to non-EU citizens unless they are expressly excluded. In any event, non-EC citizens are even covered by aspects of EC free movement law where:

the EC concludes a treaty with a third state giving them such rights (the EEA and the new agreement with Switzerland, and more limited rights under other treaties); they are the family member of an EU citizen and move with him or her to another Member State or return with that citizen to his or her home state; they are posted by an EC employer to another Member State (Case C-43/93 Van der Elst [1994] ECR I-3803; they are refugees or stateless persons claiming social security rights; they exercise the right of freedom to travel pursuant to the Schengen acquis, the relevant provisions of which have been "allocated" to the EC Treaty; or the Community has exercised its powers under Articles 49 or 63(4) EC to grant fuller free movement rights (it has not done so yet).

There is no other provision of the EC Treaty that restricts itself to EC citizens, and such restrictions are rare or non-existent in secondary legislation other than free movement law. The Community Charter of Social Rights is not restricted to EC citizens.

It would therefore be a serious breach of both international human rights law and EC law to restrict the Human Rights Charter to EU citizens only. It is very unfortunate that the UK delegate to the Convention agreeing the Human Rights Charter, Lord Goldsmith, has suggested a list of rights which refer to rights of "every citizen", rather than "everyone" (See Part A of submission of 7 Feb. 2000, CHARTE 4122/00), including detention and solicitor-client confidentiality. It is not sufficient that a separate section explain that such rights also apply to non-EU citizens; the "user-friendly" section of the Charter must also make it unambiguously clear that most rights apply to everyone, and that the political rights of EU citizens are an exception.

There are similar problems in the document circulated by the Presidency of the Convention, containing a draft list of rights (7 Feb. 2000, CHARTE 4112/2/00). This asserts that Article 12 EC only guarantees non-discrimination between citizens of the Union. This conclusion does not follow from the text of Article 12, which could be interpreted to require equal treatment of third-country nationals as well with the entry into force of the Amsterdam Treaty. Indeed, the Council and Commission Action Plan on the Area of Freedom, Security and Justice implies this interpretation (OJ 1999, C 19). In any event, the EEA and the EC-Turkey Agreement also contain a non-discrimination clause.

An earlier Presidency paper on horizontal issues is just as problematic (20 Jan. 2000, CHARTE 4111/00). It claims at paragraph 12 that in some cases (giving expulsion as an example), discrimination between EC nationals and third-country nationals can be justified under the ECHR. But the position is not that simple, since some third-country nationals have equal protection against expulsion because of treaties with the Community (the EEA, Switzerland and Turkey; on the latter, see the judgment in Case C-340/97, Nazli, 10 Feb. 2000). In any case, it is not accurate to suggest that integration within the EC could justify any form of discrimination against third-country nationals under the ECHR. For instance, the Gaygususz judgment of 1996 makes clear that there should be equal treatment in social security for third-country nationals. It is difficult to see how discriminatory treatment could be justified outside the core issue of free movement of persons, for the EC Treaty and secondary legislation only provide for discrimination in that area; and even there, social security discrimination breaches the ECHR.

Application to all Three Pillars

It has been presumed in the above discussion that the Human Rights Charter should apply to action under all three pillars. This is necessary because the Treaty on European Union explicitly requires the coherence of action between the pillars (Article 3 EU). In particular, the three pillars are subject to a single set of human rights obligations in Article 6 EU. While it is true that the institutions have different roles in each pillar, they have identical human rights obligations under each pillar. It would therefore be inappropriate to exempt any area of the Union's action from the Charter. Moreover, exempting a particular pillar would send a signal to applicant states, and even to Member States facing potential human rights problems, that the Union does not care much about human rights in certain areas of law. If the Union exempts the second pillar from the Charter, its credibility as an advocate of human rights worldwide (expressly part of the CFSP, according to Article 21 EU) will be severely affected. It would, in particular, be inappropriate to exempt criminal and policing law from the Charter, given the close connection of these fields with well-established "civil" rights and the experience of the institutions' reluctance to provide for full observance of human rights principles when drawing up measures in these areas. In any event, leaving out the third pillar would mean that only part of the "Area of Freedom, Security and Justice" was covered by the Charter, leading to incoherence in an important area of policy. Finally, the Cologne Declaration establishing the Convention expressly refers to a Charter for the European "Union".

4. Content

a) General Points

i) Extent of Rights

It is clear from international human rights law that civil, political, economic, social and cultural rights are interrelated and indivisible. Therefore it would be invidious for the Charter to overlook any of the rights guaranteed by international human rights law which fall within the scope of Union law.

ii) Sources of Rights

Although the Cologne Declaration refers only to the ECHR, national constitutions, the Council of Europe Social Charter and the Community social charter, the EC Treaty also refers to the Geneva Convention on refugees, and the ECJ's jurisprudence makes clear that all human rights treaties which Member States have signed or collaborated upon form part of the general principles of EC law. Therefore the rights listed in all these sources, particularly in the 1948 UN Declaration, the two UN Covenants, the UN anti-discrimination treaties, and several ILO treaties, should be referred to in the Charter, as should "soft law" besides the Community social rights charter. In particular, the document should refer to Council of Europe Recommendations concerning the police, criminal defence and prison conditions, as these are particularly relevant to the third pillar.

iii) Reservations, et al.

The final Charter will have to address the issue of human rights obligations that some Member States have not agreed, or which some have submitted reservations against. First of all, the discussions on the Charter will provide an ideal opportunity for those Member States to reconsider their reluctance to guarantee those particular commitments. Where divergences still remain, the Charter should still cover all of the rights guaranteed by certain Member States but not others. This is necessary to reflect the case law of the Court of Justice, which apparently holds that rights can form part of the general principles of EC law even if not all Member States guarantee the right in question.

However, this should not mean that the Charter forces Member States to uphold rights which they are not yet prepared to guarantee. Rather a system of reservations to the Charter should be considered. This would allow Member States which at present fail to protect a particular right to specify that they do not consider that such a right forms part of their EC or EU law obligations, except to the extent that the EC or EU act obliges them to guarantee it expressly. The Charter should provide for regular reviews of these reservations, and allow them to be removed at any time.

The Charter should also aim to enable the effective protection of human rights in such situations for those Member States that do guarantee the rights in question. First, the Charter should expressly provide that Member States are entitled to provide for higher levels of rights protection than that guaranteed by the Charter. This reflects a standard principle of international human rights law, as seen in Article 53 of the ECHR and many other treaties. However, the Charter should go further and address this issue in detail.

Second, the Charter should provide that where an EC or EU act provides for minimum standards, the EC or EU act should provide that any higher level of rights protected by Member States shall not be affected, and that the adoption of the act should not form a pretext for reduction of the rights in the Member State in question. Such a provision has commonly been inserted into EC social legislation, and it could usefully be inserted into any EC or EU legislation in any area that impacts on human rights. Third, the EC and EU should in future go further and specify that Member States with a higher standard of rights protection should impose a "standstill" and not reduce their current levels of protection. Otherwise the existence of a minimum standard may act as an encouragement to a "race to the bottom".

Fourth, where the EC or EU fully "occupies a field" and leaves no discretion to the Member States to apply higher standards, then the Charter should specify that the EC or EU should guarantee the protection of human rights at the highest level then prevailing in a Member State. Only such an approach would ensure that the Union and Community avoid impacting negatively on the Member States' levels of rights protection.

Finally, there should be express rules in the Charter on the relationship between human rights protection and cross-border criminal law and policing. It is not sufficient to refer simply to Member States' common obligations under the ECHR. This is because many Member States have higher standards in these areas, applicable to the conduct of investigations and the use of evidence in particular. The Charter should provide that third pillar measures should not have the effect of lowering national standards higher than the ECHR. For example, national standards of human rights protection would be infringed by:

insisting upon unlimited "free movement of evidence", requiring a Member State's courts to accept evidence obtained in another Member States by methods that would not be acceptable under its national law; or by allowing law enforcement authorities to intercept telecommunications in another Member State without ensuring that the rules applying to interception in both Member States are complied with.

b) Specific Issues

i) Death Penalty and Torture

The draft list of rights suggested by the Presidency mistakenly joins together the right to life and the right to be free of torture or inhuman or degrading treatment, which should be listed separately. It refers, curiously, to the "problem of the death penalty". It is not clear what the "problem" is within the EU, since all Member States have now ratified the Sixth Protocol to the ECHR, which requires them to abolish the death penalty. Therefore the Charter should refer to complete abolition of the penalty, as a specific aspect of the right to life.

ii) Effective Remedies

The document submitted by the UK representative appears to argue that Article 13 of the ECHR should be deliberately left out of the Charter (page 6 of his submission). There is no reason given for this suggestion and with great respect, it clearly should not be followed. Article 13 has played a prominent role in the jurisprudence of the Court of Justice and of the Strasbourg Court. It gives effect to the fundamental principle that all rights should have remedies, and leaving it out would contradict the UK representative's view that the purpose of the Charter is to make "existing fundamental rights more visible" (page 2 of submission; emphasis added).

iii) Right to Trade and Carry on Business

The draft list of rights prepared by the Presidency makes no reference to the right to trade or carry on a business, which has been recognized on a number of occasions by the Court of Justice (for instance, see Case C-280/93, Germany v. Council (bananas), [1994] ECR I-4973). This is an important omission since the content of this right has been disputed between the German courts and the Court of Justice.

iv) Transparency

The right to access to documents, found in the Presidency's paper listing rights, must be retained in the final Charter. This confirms the express wording of Article 255 EC and the consistent case law of the Court of Justice and Court of First Instance. The relevant provision should also refer to the EU Treaty obligation for the EU to act as openly as possible and as closely as possible to the citizen.

v) Equality

The Presidency's list of rights apparently sees the right to equality in the same sense as Article 14 ECHR, as a principle which means only that the other rights in the Charter must be guaranteed equally on the basis of sex, race, age, etc. But existing and proposed EC law also guarantee non-discrimination in other areas besides those set out in the ECHR and its Protocols. This should also be accounted for.

vi) Rights of "foreigners"

The reference to the "rights of aliens" in para. 20 of the draft list omits a cross-reference to other provisions which are relevant (the right to family life and the right to be free from torture and inhuman or degrading treatment), as well as the rules in a number of international treaties, including the Geneva Convention (mentioned above) and Article 19 of the Council of Europe Social Charter.

vi) Humanitarian Law

There is no reference in the draft list to the protection provided by international humanitarian law, in particular the Geneva Conventions restricting or prohibiting the use of certain types of force. The Charter must refer to such rules in light of the inclusion of defence within the tasks of the European Union, and in light of the relevance of these rules to the EC's and EU's trade, development and foreign policies.

vii) Cross-border criminal law

The final list of rights should contain specific rules on the application of criminal law principles across borders. This is relevant because the increase in EU cooperation means an increasing risk that persons in detention will be sent to another member State, that evidence and witnesses will move across borders, that multiple prosecutions will be launched in different Member States, and that foreigners will stand trial in Member States' courts. The Council of Europe has not addressed these issues in much detail yet, and the draft UN organized crime convention does not address them either. The Charter should therefore break new ground by referring expressly to the need to ensure protection of criminal defence regardless of the cross-border nature of the prosecution. In particular, it should confirm that the double jeopardy principle applies to prosecutions in different Member States, as set out in the Schengen acquis.

viii) Freedom of Movement

The draft list of rights considers freedom of movement a "problem" issue. However, since the Schengen acquis confers the freedom to travel upon all persons within the European Union, subject to certain conditions, the only "problem" is the non-application of these provisions to the UK and Ireland. The Charter can therefore confirm that the right in international human rights law to move within the territory of a state has been confirmed as regards the Community by the Schengen acquis, subject to a limit on that right's territorial scope.

5. Negotiating procedure

Finally, there are problems with the approach taken to negotiating the Charter (see Introduction). Although the "Body" negotiating the Charter is receiving submissions from civil society, the entire negotiation process is "top-down", rather than "bottom-up". To be legitimate - to have real meaning and respect from civil society - the initiative for developing the Charter should have been left with civil society, and then endorsed by the Union's institutions after it had been drafted. The current process is driven by the Union's elite, rather than by the citizens.

Prepared by Steve Peers, Reader in Law, Human Rights Centre, University of Essex with additional material from Tony Bunyan.

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