EU: Charter of Fundamental Rights: Comic strip mag or tragic mistake? (feature)
01 September 2000
After ten months of work, the "Convention" discussing a proposed Fundamental Rights Charter for the European Union completed its work at the beginning of October, and the informal European Council (summit meeting) in Biarritz then agreed the text of the Charter in October. The Charter is due to be formally adopted in December at the next EU summit in Nice, when the Member States are also due to agree an EU defence policy (including the use of paramilitary police forces) and potentially changes to the voting rules in the EC Treaty governing adoption of immigration and asylum law. It contains 50 Articles listing rights based on the European Convention of Human Rights (ECHR), other international instruments, national constitutions and the EC and EU Treaties.
However, it was agreed at Biarritz that the Charter will not be binding. The exercise of drawing up the Charter has been less elitist and more open than the process of agreeing other EU measures, since the drafting body (the 'Convention) has been made up largely of representatives from national parliaments and the European Parliament and has held hearings and received documents from civil society. The process was nonetheless ultimately a 'top-down' process since it seemed clear that the 15 representatives of national governments in the Convention held far greater sway than the other 46 delegates. But now that the Charter has been agreed, has it answered the criticisms of civil society about the relevance and usefulness of such a measure?
The problems of human rights protection in the EU
Among the Member States, the supporters of drafting the Charter appear to have different motivations, ranging from a desire to list in a single document all of the human rights obligations which the EU is committed to, to a hope that the Charter could form the foundation of a future 'constitution' for the European Union. Since the final Charter will not be binding, the former Member States have won the argument for now, with the latter Member States now binding their time until the next opportunity to press for adoption of a 'constitution'. However, from a citizen's perspective the most important issue is not the status of this new Charter taken in isolation, but the broader issue of whether or not the EU legal and political system takes sufficient account of human rights. The central question is therefore whether the Charter will do anything to solve the existing problems regarding the protection of human rights within the European Union.
At the moment the EC (dealing with economic and social matters, including immigration and asylum law) and the EU (dealing with foreign policy, police and criminal law) are not bound by any human rights treaties. Indeed, the EU's European Court of Justice (ECJ) ruled in 1996 that the EC could not sign up to the most important human rights treaty, the ECHR, without a Treaty change. They instead have to respect human rights as "general principles of Community law", an obligation initially set out by the ECJ, and since set out expressly in Article 6 of the EU Treaty. But there are several problems with this situation.
First, because the EC and EU have not signed up to human rights treaties, there is no external control of the EC's and EU's acts. While the Member States' authorities and court rulings can be challenged in Strasbourg for breaching the ECHR, acts of the Commission and Council cannot be challenged directly. To at least a limited extent the Commission's and Council's acts can be challenged indirectly, when they are implemented by Member States, but the extent of this possibility is unclear. In any event such an indirect challenge is long-winded and convoluted and might not be possible where the EC or EU takes a decision which cannot be challenged under national law. It is also impossible to complain about EC and EU actions before other international human rights bodies (for instance the UN Human Ri