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Human Rights in the EU: Historical, Comparative and Critical Perspectives

Federico Fabbrini, Ordinario di Diritto dell’Unione europea, School of
Law & Government, Dublin City University

L’articolo analizza la protezione dei diritti fondamentali nell’Unione European (EU) da una prospettiva storica, comparata e critica. L’articolo argomenta innanzitutto che, da un punto di vista storico, i diritti fondamentali sono stati al cuore del processo di integrazione europeo sin dalle origini e sono rimasti cruciali in ogni momento di svolta nel processo di sviluppo costituzionale dell’UE. Infatti, l’articolo sostiene in secondo luogo che, da una prospettiva comparata, l’UE ha avuto un ruolo nel campo della protezione dei diritti che è superiore a quello della maggior parte delle altre autorità pubbliche in Europa – sia a livello nazionale che sovra-nazionale. Per queste ragioni l’articolo porta avanti in terzo luogo la tesi che l’UE deve rimanere intensamente coinvolta nell’assi­curare il rispetto dei diritti umani anche all’interno degli stati membri: dal momento che il rispetto per i diritti umani e lo stato di diritto è oggigiorno messo in discussione in alcuni stati membri dell’UE è di importanza critica che l’UE rimanga una forza per la promozione e la protezione dei diritti fondamentali.

PAROLE CHIAVE: diritti fondamentali

The article examines the protection of fundamental rights in the European Union (EU) from a historical, comparative and critical perspective. The article claims firstly that, in historical terms, fundamental rights have been at the core of the project of European integration from the early days, and have remained crucial at every major step of the EU constitutional development. In fact, the article maintains secondly that, in comparative terms, the EU has been more involved in the business of protecting fundamental rights than most other public authorities in Europe – both at the national and at the supranational level. For these reasons the article argues thirdly that the EU should remain actively engaged in policing human rights protection even within the member states: while respect for human rights and the rule of law is today challenged in a number of member states it is critical that the EU remains a force for the promotion and protection of fundamental rights.


I. Introduction - II. Historical perspective - III. Comparative perspective - IV. Critical perspective - V. Conclusion - NOTE

I. Introduction

Arbeit macht frei. We cannot understand the foundational importance of human rights in the project of European integration if we don’t start from reflecting on these three words, carved onto the iron gate of the Auschwitz concentration camp. For the project of European integration was, is, and should remain overall a project of human redemption for a continent historically guilty of inhuman action. While the roads of integration have been many, the end point, the mission of Europe, is peace, and with it the prevention of new atrocities. In this grand vision, human rights are not just an add-on. They are the foundation of the project and its feuille de route. The core argument of this article is that the protection of fundamental rights is a centerpiece of the European Union (EU). The purpose of this article is to examine from an historical, comparative but also critical perspective the transformations in the protection of fundamental rights in the EU, shedding light on the central role that these have played – and should continue to play – in the EU. The article develops this argument by considering three overlapping dimensions of the protection of fundamental rights in the EU legal order. First, the article examines the protection of fundamental rights in the EU in historical terms, with the aim to show a striking continuity in the importance human rights considerations have played in the project of European integration. The article emphasizes how human rights objectives were prominently in display in the early 1950s, when the first steps directed at federalizing a continent devastated by the war were undertaken. As the article suggests, this understanding helps to explain the judicial creation of an unwritten Bill of Right for the EU, starting from the 1960s until the 1990s. Moreover, the article underlines how human rights were among the key concerns shaping the latest transformations of the EU: after the Cold War, efforts at widening and deepening were underpinned by a new, explicit recognition of the human rights vocation of the EU, epitomized by the adoption of the Charter of Fundamental Rights. Second, the article examines how the protection of fundamental rights in the EU fared compared to that in the member states – as well as in the other European regional organization devoted to the protection of fundamental rights, the Council of Europe. In this regards, the article highlights how (with few exceptions) the [continua ..]

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II. Historical perspective

Since the beginning, the project of European integration was concerned with human rights [1]. Efforts to reunite the continent after two bloody civil wars prominently featured human rights considerations. This is evident of course in the initiative to establish the Council of Europe in 1949, within which the European Convention on Human Rights and Fundamental Freedoms (ECHR) was adopted in Rome in 1950, as a bulwark against any possible slide back in the direction of the human rights horrors committed during the war. But this also transpires from the post-war debates and the proposals in favor of establishing a political, federal-like organization, between France, West Germany, Italy and the Benelux countries. This effort, which took off with the Schuman declaration of 1950, and the establishment of the European Carbon and Steel Community (ECSC) by the Treaty of Paris in 1951, had immediately a clear human rights dimension. In particular, as Grainne de Búrca has recently explained, the importance of the protection of fundamental rights for the founding generation emerges from the early attempts to endow the new Europe with a human rights instrument, and to ensure a formal connection between the EU and the just-enacted ECHR [2]. The draft Treaty establishing the European Political Community (EPC), drafted in 1952-53 as a follow-up of the ESCS, specifically provided that the ECHR would become an integral part of the basic law of the EPC [3]. In the work of the drafting committee, moreover, it was clearly assumed that the instruments of human rights protection being created would operate both vis-à-vis the public authorities of the Community, and vis-à-vis the states, hence ensuring respect for common values also at the national level [4].This fact challenges the widespread view that the process of European integration was initially concerned only with free markets, and proves how instead human rights shaped the early debates about the future set-up of the EU already in the 1950s [5]. This is not surprising for anyone appreciating the condition of Europe after World War II (WWII). Altiero Spinelli’s Manifesto di Ventotene reflects an equal aspiration for unity and freedom [6], and the rhetoric of the Mouvement européen was largely imbued with rights’ claims [7]. Needless to say, the abandonment of the EPC Treaty after France’s failure to ratify the [continua ..]

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III. Comparative perspective

The previous section has explained that the EU has been involved in the business of human rights since its creation: from an historical perspective, the protection of fundamental rights has been a Leitmotiv in the project of European integration. This section takes a step forward and claims that the EU has greater experience with the protection of human rights that most other (national and international) public authorities in Europe: from a comparative perspective, the EU has been involved in the protection of human rights longer than almost any European state or regional organization [69].While the reader may find this claim surprising in an era of growing Euroscepticism, this section endeavors to shed light on several hard facts which are often neglected in the public debate about human rights and the EU. In contemporary constitutional law theory the protection of fundamental rights is typically associated with the existence within a given legal system of substantive and institutional guarantees which are capable of securing respect for human rights [70]. Human rights require, in substantive terms, the existence of a catalogue of fundamental rights entrenched in the supreme law of the land – and thus removed from the ordinary legislative process, so that transient majorities are unable to change the catalogue of human rights at will [71]. Moreover, human rights require, in institutional terms, the existence of mechanisms of enforcement, capable to sanction possible rights’ infringements: since the end of WWII, in particular, widespread consensus exists on the idea that courts ought to play such a role [72]. At the same time, based on the experience of totalitarianism of the first half of the 20th century, contemporary constitutionalism requires judicial review to operate not only vis-à-vis the executive branch, but also vis-à-vis the legislature: as the legislative power can infringe on human rights just as much as the executive, the power of courts to strike down legislative action is today universally considered as a condition to ensure the protection of fundamental rights and freedoms in a legal system [73]. Now, when measured by these standards, the EU appeared to fare better than most competitors in the protection of fundamental rights – since an early phase of the project of European integration. As reported in the previous section, since the 1960s the EU came to have a [continua ..]

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IV. Critical perspective

As the previous sections pointed out, the EU has been involved in the protection of human rights since the early phases of its existence; moreover, the EU has a longer experience in the field of human rights protection than the majority of other public authorities in Europe. This state of affairs is relevant for the last point I want to make: it is important that the EU continues to remain engaged in securing and promoting the protection of fundamental rights – both at the national and transnational level. In recent years respect for human rights in Europe has been challenged by political and legal developments, which have increasingly questioned past achievements in the protection of basic freedoms and the rule of law. This evolving reality calls for action by the EU. As Antonio Cassese, Andrew Clapham and Joseph H.H. Weiler argued a quarter of a century ago, “human rights protection is a question of constant vigilance” [130]. And constant vigilance is certainly needed in Europe today to ensure that its human rights system continues to live up to its challenges. Let’s be clear: the EU itself is not immune from pressure to compromise on the protection of human rights for short term political goals – witness the recent deal brokered in March 2016 by the European Council with Turkey to stem the flow of migrants escaping torn-war Syria and other countries of the Middle-East [131]: the agreement, which provides for the automatic return to Turkey of migrants who arrive into the Greek islands, without allowing them to file an asylum application claim, raises relevant issues of conformity with international and European law on the rights of the refugees [132]. But let’s be frank: today the main challenges to the protection of fundamental rights come from the national level. In the face of growing centrifugal pressures at the state level, the EU should become more vocal against possible human rights backsliding in Europe. The project of European integration was driven by the desire to overcome the darkness of the past, restoring peace and promoting human rights – so the preservation of these aims should remain a goal for the EU [133]. All this legitimizes the EU to intervene whenever human rights values are under threat. In fact, EU intervention in protecting human rights within the member states is consistent with the principle of subsidiarity [134]. This represents a [continua ..]

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V. Conclusion

This article began citing Auschwitz, it continued mentioning Srebrenica and concluded indicating the challenges ahead in the protection of fundamental rights in Europe. In a continent like Europe, with such a dramatic history, it is imperative that strong substantive norms and institutional mechanisms to protect human rights remain in place. In fact – as this article has claimed – human rights are a foundational element of the project of European integration, and the mission of promoting and protecting fundamental rights ought to remain a clear component of the action of the EU, including through new and improved institutional solutions. This article sought to examine the normative value of human rights within the legal order of the EU. The examination has been carried out through three perspectives. As Section II has explained from an historical perspective, the EU has been built on ruins of the Holocaust, and the protection of human rights has prominently featured in the political ideas and constitutional proposals of the early European Communities. Moreover, human rights have remained a key concern at each and every stage of the process of European integration: from the 1960s to the 1990s, the ECJ complemented the common market with an unwritten catalogue of fundamental rights, with constitutional status. During the 1990s, the transformation of the EU, with steps toward EMU and CFSP among others, prompted the codification of new rights, and new mechanisms to protect them. And at the dawn of the 21st century, the EU has been endowed with a full-fledged Charter of Fundamental Rights – arguably the most articulated and advanced human rights document to date. This striking continuity in the importance that human rights played throughout EU history reveals the deep normative importance that they have for the EU. As Section III has pointed out from a comparative perspective, the EU has also been involved in the business of protecting fundamental rights for longer than most other public authorities in Europe. If contemporary conceptions of constitutionalism require human rights to be protected through supra-legislative norms and judicial review of legislation, the EU can be credited for having featured such guarantees for long. While a handful of European countries had some kind of tradition of human rights protection, or human rights rhetoric, the vast majority of the current 28 member states of the EU lacked effective mechanisms of [continua ..]

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