National identity, political interest and human rights in Europe: the charter of fundamental rights of the European Union

Click to increase image sizeClick to decrease image size

Notes

The author wishes to thank Professor Stefano Bianchini for his valuable comments and suggestions on the article.

Even for the neorealist Kenneth Waltz sovereignty is a “bothersome” concept that provokes much debate and disagreement (Rosenberg, 1994, p. 127). For Hoffman sovereignty becomes an insoluble problem only as long as it is associated with the state, i.e. if one criticises the latter, it is also necessary to criticise the former (1998, p. 2).

With the French Declaration of the Rights of Man and of the Citizen of 1789, the movement towards individual freedoms reached its zenith. Its first article—“All men are born free and equal and remain free and equal in their rights”—reappeared more than 150 years later in the Universal Declaration of Human Rights. The French Declaration established the fundamental principles of modern political order—national sovereignty, representative government, the primacy of law and the separation of powers. It gave people rights that are also relevant today—the right to resist oppression, presumption of innocence, freedom of opinion and religion, freedom of expression and the right to own property (see Van Kley, 1994).

The text of the Magna Carta of 1215 bears many traces of haste and was clearly the product of much bargaining and many hands. Most of its clauses dealt with specific, and often long‐standing, grievances rather than with general principles of law. Nevertheless, its clauses were important in limiting the misuse of powers by the royal officials, such as overburdening and unregulated financial and other levies on the population, interference with church affairs, etc. (see Holt, 1992; Thomas, 1988).

The Petition of Rights of 1628 was imposed by Parliament on the King of England when he needed the MPs to approve funds for the wars against France and Spain. It contained 11 articles guaranteeing important principles of political freedom.

The Habeas Corpus Act of 1679 aimed at better securing the liberty of the King's subjects by preventing the abusive detention of persons without legal authority. The Act was adopted by the English Parliament, which was faced with public pressure (see Meador, 1966).

The Bill of Rights of 1689 was imposed by Parliament on the King and Queen and put an end to royal absolutism. It served as a contract between the sovereign and the people. It introduced a fundamental principle: the law is above the monarch. People were granted the rights to petition, to vote freely and to have judicial guarantees. Their individual freedoms were protected.

“A nation is a historically constituted, stable community of people, formed on the basis of common language, territory, economic life, and psychological make‐up manifested in a common culture” (Stalin, 1973, p. 60).

In October 1958 the Central Committee of the Bulgarian Communist Party adopted the “Guidelines for Party Work among the Turkish Population,” which concluded that “the Turkish national minority is not part of the Turkish bourgeois nation, since there is no shared territory and economy, and is not part of the Bulgarian nation, since there is no shared language, culture and traditions” (see Ivanov, 1997, p. 56).

Germany is a good example in this regard. After the Second Word War a non‐militant identity was imposed on the country and quickly took root among its political elite and its people. At the end of the Cold War, however, this identity began to shift in the direction of deploying the Bundeswehr in peace‐keeping missions in places of conflict. The shift was politically generated and enjoyed a positive resonance both domestically and internationally (see Zehfuss, 2001).

“Critical junctures” are defined as perceived crisis situations resulting from complete policy failures, but also triggered by external events (Marcussen et al., 1999, p. 616).

Churchill insisted on the distinction between being “with” Europe and being “of” Europe. For him Britain was the former but not the latter. In his words, “we have our own Commonwealth and Empire” (Churchill's speech at the House of Commons, 11 May 1953).

“The European Community is also a question of identity. If we want to preserve our values, our way of life, our standard of living, our capacity to count in the world, to defend out interests, to remain the carriers of a humanistic message, we are certainly bound to build a united and solid bloc” (Chirac, Liberation, 11 September 1992, quoted in Marcussen et al., 1999, p. 621).

The idea of natural rights is seen as a directly linked to the liberalism's concept that evolved in Western political thought from the Enlightenment period onwards which vested individuals with autonomy, agency and freedom. Human rights are thus “natural”, conceived as a moral entitlement that human beings possess in their natural capacity as humans, and not by virtue of any special arrangement into which they have entered or of any particular system of law under whose jurisdiction they fall (Finnis, 1980). Locke is arguably the most prominent defender of the idea claiming that certain rights self‐evidently belong to individuals as human beings (see Locke, 1990).

Bentham held that human rights are “nonsense upon stilts” and a contradiction in terms if not established by a system of positive law with the corresponding duty of an institution of authority (Bentham, 1987, p. 53). Relatedly, Burke saw the proclamation of “natural rights” in declarations and charters as a socially dangerous and inadequate substitute for effective legislation (Burke, 1790).

The individualist approach was defended by Dworkin as a possibility to trump collective objectives that infringe on individual freedoms (Dworkin, 1977, p. xii).

Sartori (1965) saw as an inherent feature of any democratic political system that it is those who are most socially and economically vulnerable who will make full use of their civil and political rights in order to better their condition. For Cranston (1964; 1967, pp. 43–52), economic and social entitlements do not satisfy a number of conditions, which prevents one from qualifying them as rights proper.

Beetham (1995, p. 59) defended the view that corresponding duties for economic and social rights are assignable and practicable. Relatedly, Wieruszewski (1994, p. 69) attacked the problem of whether economic and social rights should be taken seriously at all with the problem of how to proceed once the inevitable agreement that they should be taken seriously had finally been arrived at.

See Krasner (1995) for a realist‐perspective analysis of the effectiveness of human rights regimes. In four cases he tested the hypothesis that only when powerful states enforced principles and norms were human rights regimes consequential—religious toleration in the seventeenth century, the abolition of the slave trade in the eighteenth century, the protection of minority rights in Europe in the late nineteenth and early twentieth century and the modern, post‐1945, regime of human rights protection. Krasner held that the most important explanation for the variation in outcomes was the relative power and interests of participating states.

See Boyle (1995) for an argument that the Vienna Declaration, despite its ambiguous language, is in fact a confirmation of the principle of universality of human rights.

These are the International Covenant on Civil and Political Rights (ICCPR; for detailed analysis see Nowak, 1993) and the International Covenant on Economic, Social and Cultural Rights (ICESCR; for detailed analysis see Craven, 1995).

The European Convention on Human Rights includes in some of its subsequent protocols a number of economic and social rights. They also fall within its implementation mechanisms.

The latter case is characteristic for states recalcitrant in adopting the established international human rights standards. Bowing to external pressure through the so‐called “boomerang effect,” these states usually acquiesce and become “socialised” into respecting human rights norms originating in other traditions (Risse and Sikkink, 1999).

“The last [the Second World] War was essentially the ‘human rights’ war, inflicted on peoples by those who espoused a monstrous racist doctrine, and waged simultaneously against man and the community of men, with unprecedented systematic cruelty” (René Cassin at a press conference, 8 July 1947, quoted in Leben, 1999, p. 87).

Moravcsik (2000) argued for a “republican liberal” explanation of the ECHR. He focused on the elite's instrumental calculations about domestic politics, especially in newly democratised states. He explained the variation of attitudes (positive or negative) towards the strict implementation mechanism of the Convention with the temporal character of democracy in the country in question (established democracy or new democracy). Moravcsik claimed it was newly democratised states, whose elites had an interest in locking in the liberal political system, that were in favour of establishing the Court. Among the three cases discussed in this article, his thesis is particularly relevant for Germany. The cleavages at the time, however, were more complex and varied than Moravcsik's explanation accepts (see Teitgen, 1993).

The Weimar Republic was set up in January 1919. Being a democratic political system, it offered a new start for Germany after the First World War. The severe terms of the Treaty of Versailles announced in May the same year, however, undercut the popular legitimacy of the Republic and soon the Republic was proved to be politically unsustainable under such conditions (see Bookbinder, 1996; McCormick, 2003).

These are generally referred to as “free movement” freedoms, codified in the 1987 Single European Act.

The German Constitutional Court held that so long as an adequate standard of fundamental rights protection was not offered under EC law, it would not regard itself as precluded from scrutinising measures under the latter for conformity with German fundamental rights and, where necessary, invalidating or disapplying such measures within Germany (see Shaw, 2000, p. 345). A similar position was taken and maintained by the Italian Constitutional Court (Ruggeri Laderchi, 1998).

See Case 29/69 Stauder v. City of Ulm ([1969] ECR 419); Case 11/70 Inernationale Handelgesellschaft ([1970] ECR 115); and Case 4/73 Nold v. Commission ([1974] ECR 503).

The ECJ held that, whatever the source of inspiration, the rights taken therefrom become specifically EC rights, subject to interpretation within the structure and objectives of the Community. Thus norms deriving from international human rights instruments, such as the ICCPR, the ICESCR and the ECHR, are construed and implemented differently in the EC context to the way they are construed and implemented at the source of origin (see Fitzpaptrick, 2000).

See Duparc, 1992.

In addition, Article 48 of the Single European Act set down the principle of free movement of workers, Article 51 provided for the adoption of measures regarding the social security of migrant workers and Articles 52 to 58 dealt with issues of settlement and residence.

Article 7, Consolidated Treaty of the European Union. In 2000, within this mechanism, 14 EU member states collectively imposed bilateral sanctions against Austria, because the inclusion in the Austrian government of Jörg Haider's extreme right Austrian Freedom Party was said to oppose many of the ideas making up the common identity of the EU. Part of the reasoning behind the sanctions, however, was political interest sympathetic not so much to common EU identity, but to avoiding the split of right‐wing votes across Europe (see Merlingen et al., 2001, pp. 68–70). Interestingly, Austria is the only member of the EU where the ECHR has formally the rank of constitutional provisions and this makes invalid any statute or secondary legislation that violates its norms (Bernhardt, 1993, p. 27).

See Opinion 2/94 re Accession to the ECHR ([1996] ECR I‐1759). For a commentary see Gaja (1996).

The first was prepared in 1998 at the European University Institute by a Comité des Sages led by Professor Alston under the name of “Leading by Example: A Human Rights Agenda for the European Union for the Year 2000.” The second was the outcome of the work of another Comité led by Professor Simitis in 1999 under the name of “Affirming Fundamental Rights in the European Union: Report of the Expert Group on Fundamental Rights.”

The notion of “epistemic communities” refers to knowledge‐based patterns of preference formation within decision‐making institutions. In the category of epistemic (knowledge) communities fall research groups and institutes, Comités des Sages, scientific laboratories, etc. (see Haas, 1992).

See Schröeder's speech to the CoE Parliamentary Assembly on 25 January 2000; Fischer's speech to the European Parliament on 12 January 1999. See also the Programme of the German Presidency (January–June 1999): “Europe's Path into the 21st Century” (Miller, 2000).

The drafting body was to be composed of 15 representatives of the heads of state or government of the member states; one representative of the President of the European Commission, 16 members of the European Parliament and 30 members of national parliaments—a total of 62 members. Interestingly, the same composition (plus one additional Commission representative) was envisaged by the 2001 Laeken Declaration for the Convention on the future of Europe, which led Castiglione (2002) to impart a reason of constitutional procedure informing the decision‐making process behind the Charter.

These are the provisions of the ECHR; the constitutional traditions common to the member states; the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers. Lenaerts and de Smijter (2001) held that the Charter goes beyond the fundamental rights recognised by the ECJ, but falls short of the composite EU system of protection stemming from Articles 6.2 and 46.d of the Treaty on European Union taken together. It is their claim that the ECJ could have, in fact, recognised more rights in its case law without having to step outside solid treaty grounds.

The Visegrad Four Ministers of Justice agreed to take a joint stance on the preparation of the Charter, The Polish minister, Hanna Suchocka, thought this would bring more weight with a common position. The Slovak minister, Jan Carnogursky, insisted the rights of national, religious and other minorities must be guaranteed. Prague Post, 10 November 1999. Later in time, during its meeting in Brussels on 19 June 2000, the drafting Convention invited for a hearing governmental representatives of the candidate countries. While all of them approved the substance and the general tone of the project, Hungary, Slovenia and the Czech Republic voiced their concerns about the lack of clauses on minority rights protection. For them, after having had to fulfil the Copenhagen criteria for EU membership, this seemed a glaring inconsistency—European Report 2510—European Information Service, 21 June 2000.

See Kymlicka (2001) for a convincing argument that neutrality in treating minorities is not enough and that it should be instead replaced with an appropriate understanding of social justice on the part of state administrations.

“Rocky Road to Nice,” The Times, 18 October 2000. Tony Blair pledged his support for the Charter only under the condition that it will not become legally binding or create new legal obligations for Britain's courts. His Minister for Europe, Keith Vaz, repeatedly played down the significance of the Charter, comparing it with a comic cartoon. “Blair Goes with Flow on Lesser EU Issues,” The Guardian, 14 October 2000, p. 19.

Among these were the new areas of qualified majority voting, the number of votes in the European Council and the number of Members of European Parliament for each member state after enlargement.

For an internet reference see ⟨http://european‐convention.eu.int⟩.

See the Final Report of Working Group II, Convention Document CONV 354/02, 22 October 2002, Brussels.

Letter from M. P. Hein, member of the Convention, to President Giscard d'Estaing concerning the Charter, Convention Document CONV 736/03, 13 May 2003, Brussels.

Contribution to the Convention—“Incorporation of the Charter in the EU Constitutional Treaty,” Convention Document CONV 659/03, 14 April 2003, Brussels.

Sixth Report of the House of Lords Select Committee on the European Union, “The Future Status of the EU Charter of Fundamental Rights,” Session 2002–2003, House of Lords Paper 48.

The three countries were young democracies at the time, following the overthrow of military dictators. For a comparative analysis of EC/EU influence on the process of democratisation in Greece, Portugal and some of the new EU members or applicant states see Bojkov (2001).

It is not uncommon for EU member states to sacrifice obvious issues of human rights in the name of “higher” political interest. Most recently the Italian state vetoed a proposal to declare racism and xenophobia within the EU a crime. Had the motion been approved, one of the country's leading politicians risked going to jail.