The Draft Constitution and Human Rig

The Draft Constitution and Human Rights Protection in European Union

周大勇 (Zhou,Dayong)

1 the general introduction of the draft constitution in aspect of the human rights
2 short review of the human rights protection in European Union
3 the new points in aspect of human rights in the draft constitution
3.1 common values
3.2 incorporation of the Charter of fundamental rights
3.3 other changes could affect the human rights
4 arisen questions
4.1 the protection different from under the Convention
4.2 the two courts system and its application
5 conclusions in a historical view




1 general introduction of the draft constitution in aspect of the human rights

“Conscious that Europe is a continent that has brought forth civilization; That its inhabitants, arriving in successive waves from earliest times, have gradually developed the values underlying humanism: equality of persons, freedom, respect for reason” Extract from the preamble to the draft Constitution

In past 16 years, the European Union (EU hereafter) has marked itself through a series of changes. From The Single European Act, in which the Union committed itself to create a single market and at the same time establish on its territory the freedom of movement of people, goods, services as well as capital, to Maastricht Treaty, which brought the Union into reality and led to common foreign policy and cooperation in the area of justice and internal affairs as a higher level cooperation among Member States. Then the following Amsterdam (1997) and Nice (2001) Treaties, strengthened cooperation in foreign and security policy and placed Justice and Home Affairs matters and established the frame for the Union as a legitimate institution, in which people from different nations integrated in a large region would have common historical direction and splendid future before them. Just before the door of enlargement of the Union, it was argued that the Union has to improve democracy and transparency as well as efficiency, in order to outlines the EU’s purpose and competence clearly and streamline structures so as to prevent paralysis, therefore a new constitution for the Union is determined to replace the EU's series of key treaties in passed over the last 50 years as a single document .

Under leading of former French President and master draftsman Valéry Giscard d'Estaing, the European Convention set about its work of drafting the European Union's first ever full-fledged constitution. With the convention's work completed, the draft must now be finalized by an Intergovernmental Conference of European leaders that is expected to complete deliberations by the end of the 2003. As far as our topic is concerned, noticeably modifications come out in the constitution contract, first of all, the incorporation of the Charter of Fundamental Rights, which we will discuss later. In the beginning it is meaningful to consider the statues of the draft constitution in the progress course of the Union. The Union desire

s to bring peace and prosperity, to promote economic and social progress through continuously integrating market and expanding freedom under light of united institution and social systems . These goals, however, are the foundation of development and protection of human rights . That means, if we regard human rights as a series right which realized at first in peaceful and law-ruling society, then the Union has already kept on entrenching to appreciate these goal from beginning on, and now by means of perusing such goal in a larger region through enlargement, the EU’s influence extent to broader area and more people.

The draft constitution then in such context should be viewed as another historical phase in the process. Because the promoting of well-being and fortune of people depend not only on the development of economic situation and adding some single freedom clauses into the governmental documents, but also upon the entire politic system and background in which we live. Without governing based on democratic and effective institutional structure, and especially a ripe legislation and judiciary mechanism, the realization and protection of human rights could only be on the paper. This is also one of the motive caused the Declaration on the future of the European Union which committed the Union to becoming more democratic, more transparent and effective, in order to pave the way for a Constitution in response to the expectations of the people of Europe . In this perspective, one shall recognize the Constitution as a moving forward step of the whole EU institutionalization targeting its goal, so that to discuss the Constitution in connection with the human right protection, it is helpful to review the human rights protection in Europe and, especially in EU.

2 short review of the human rights protection in European Union

The protection of human rights has been internationally come to life in the Universal Declaration of Human Rights in 1948 (UDHR) with reorganization of disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind and respect for inherent dignity as well as the equal rights of all members of the human. This declaration states explicitly that the rights and freedoms of humans have to be guaranteed without distinction and destruction by any group, state or person. These principles were broadly accepted by European countries, considering the origin of the EU (EC) and the historical separation in Europe after WWII, we denote only the contracting countries of European Community.

For the Member States of EC, the Council of Europe has been up to now the most important instrument, which established in 1949 as a result of the Congress of Europe in The Hague , and took for the basic of the human rights protection. The Council accepted the principles of Universal Declaration of Human Rights and integrated it into The European Convention for the Protection of

Human Rights (the Convention hereafter), which and its 12 Protocols turned out to be the significant resource for Human Rights protection in Europe. Because of the existence of the Convention, the other two organizations established in the same age aftermath of the Second World War, i.e. OEEC and the European Communities didn’t include relevant clauses for Human Rights protection into their founding treaties. Since it was agreed at that time, the Council of Europe would focus on the protection of human rights, fundamental freedoms and democratic values, whereas the OECD and the European Communities were to be concerned with the economic restoration of Europe. The reason of separate organizations was based on a view to avoiding economic excuses for future inhumanity. Another reason came from the thought, which believed that the process of economic integration set forth in the Community Treaties could not lead to a violation of human rights. Furthermore, the original Member States in the Treaty of Rome feared, that the inclusion of a "bill of rights" in the Treaty might have brought about an undesirable expansion of Community powers, since it could lead Community institutions to interpret their powers as extending to anything not explicitly prohibited by the enumerated guarantees.

Under the regime of Council of Europe, a lots of achievement of human rights improvement has been reached , yet along with the development and expansion of EU, another mechanism on protection of human rights which does not totally rely on the Council of Europe has derived out on one hand, on the other hand being lack of provisions ruling human rights protection in the Treaty establishing EC did not prevent the EC and the later European Union from providing care for the protection against the violations on human rights. Naturally, how could a swelling supranational organization as EC, which has been continually strengthening its power in all social aspects, does not involve in human rights issues especially when the consciousness of human rights nowadays become more significant both in international and national stages? Regarding to EU, The protection system has been formed in three aspects.

First of all, the legislation in the Member States of EU. Since there were no Member States of EU (EC) which accedes to the Community without being a member of the Council of Europe, and according to the Convention, it impose obligations on the Member States that they should ensure that the internal laws and practices comply with the human rights standards set out in the instruments. Very member states in EU have recognize the principles derived from the Convention and incorporated them somehow into national laws, most importantly, provided constitutive protection as the basic legal resource for human rights protection. For example in Germany, Basic Law (Grundgesetz) Art 1 to 19 deliver explicit provisions even beyond the Convention; the same case as Part VIII (§71-85)

in Constitution of Denmark ; in Britain the Act of Human Rights came into force on 2 October 2000 steers extending a ways, in which the Convention can be used before domestic courts. Certainly, according to the classic human rights lessons, the basic protection of human rights could only be afforded at the national level through national legislation and excise of authoritative power.

Secondly, the institutions and legislation at the EU level acts also with high respect to the human rights protection. The EU has showed its commitment to human rights and fundamental freedoms and has explicitly confirmed the EU's attachment to fundamental social rights ever since its establishment.

The Amsterdam Treaty established procedures intended to secure their protection. It was ascertained, as a general principle, that the European Union should respect human rights and fundamental freedoms, upon which the Union is founded. For the first time a procedure is introduced, according to which severe and continuing violations of Fundamental Rights can lead to suspension of voting and other rights of a member state, if the Union determined the existence of a serious and persistent breach of these principles by that Member State. As to the Candidate countries, they should also respect these principles to join the Union. Furthermore, It has also given the European Court of Justice the power to ensure respect of fundamental rights and freedoms by the European institutions. In accordance with the inner requirement for the implementation of development cooperation operations, in order to reach objective of developing and consolidating democracy, EU also need its rule respecting for human rights. Such cases we have are for instance the EU Council’s regulation on human rights, Council Regulation (EC) No 975/199 and Council Regulation (EC) No 976/1999 for example, are aimed at providing technical and financial aid for operations to promote and protect of civil and political rights as well as economic, social and cultural rights etc.

Likewise, at their meeting in Cologne in June 1999, EU leaders declared that in respect to the current stage of progress of the European Union, the fundamental rights applicable at Union level should be pushed forward, namely be consolidated in a Charter and thereby made more evident. They argued, that the legal resources of human rights protection come from not only the European Convention of Human Right, but also from various international conventions drawn up by the Council of Europe as well as the United Nations and the International Labor Organization, they also include EU treaties themselves and from the case law of the European Court of Justice. As a result, a Charter of Fundamental Rights of the European Union (the Charter hereinafter) was sketch out, which highlighted the EU’s respect for human rights, for fundamental freedoms and for the principle of democracy through listing more rights a more precise definition

of the common values comparing the early documents including the Convention. We will continue to concentrate on the Charter in point 3 since it has been integrated in the draft Constitution as an outstanding achievement.

Finally, the opinion and case-law of European Court of Justice (ECJ hereafter) also have immense impact on the establishment of the instrument of human rights protection within EU.

Although the jurisprudence developed by the ECJ recognizes the Convention as the standard-setter in cases in which the Court has to consider and decide a human rights issue, since there were no relevant legislation existed in the frame of the Community, the ECJ furnish itself power in this aspect by means of case-law. Earlier in 1974, the ECJ first made reference to the ECHR in the Nold judgment, in which the ECJ emphasized its commitment to fundamental human rights based on the constitutional traditions of the Member States’ fundamental rights form an integral part of the general principles of law which the Court enforces. In assuring the protection of such rights, the Court is required to base itself on the constitutional traditions common to the Member States and therefore could not allow measures, which are incompatible with the fundamental rights recognized and guaranteed by the constitutions of such States. The ECJ declared, that the international treaties on the protection of human rights in which the Member States have cooperated or to which they have adhered could also supply indications which may be taken into account within the framework of Community law.

That implied, even without clear regulations in the treaties, the remedy against violation on human rights could also be provided within the framework of the Community in respect for the common traditions applied to the Member States, and in connection with we have mentioned about the Member States’ above, the principles and resource applied to the Member States derived from the Council of Europe. Thus a EU standard could be established by transform a rating comparison of the members’ legal systems to the case-law in ECJ in respect for human rights.

In this context, the ECHR serves as only an alternative source of knowledge, because based on the gradually increased legal resource- from the common principles applied to the member states to the legislation of EU institutions and the case-law developed by the ECJ itself as well as the synthetically Charter of Fundamental Rights, the ECJ has been enabled to deliberate and judge cases relying on sufficient recourses existed in EU body in connection with human rights without referring to the ECHR. In a similar case, Cinéthèque, The Court made a move forward: It expressed the normative statement about respect for human rights as a condition for lawfulness as an institutional duty: it is the duty of this Court to ensure the observance of fundamental rights in the field of Community law, as stated by the Court. In thi

s way, the Court of Union gradually enables itself to break in the field of excising more power in human rights protection.

Based upon three aspects above, it is reasonable to be aware of, that before the draft Constitution for Europe materialized, it already existed two de facto mechanisms supervising and providing legal protection for human rights in the scope of European Union. One of them is the Council of Europe based in Strasbourg, which provides basic standard of human rights via the Convention and other guideline mechanisms , and oversees its enforcement with the judiciary body: the European Court of Human Rights (ECtHR hereafter). The other system, however, was gradually established during the progress of EU, which consists of two legislative bodies in Members States and Union level respectively, and the ECJ as the juridical instrument. The two systems, however, are not definitely distinguished with each other, but overlap and work in coordination. Because on the one hand, the fifteen European countries made commitment to respect the ECHR, and agreed to submit themselves to the jurisdiction of ECtHR in Strasbourg, in spite of that they have transferred some sovereign competence to Brussels. On the other hand, the ECtHR still plays a role as an effective co director of the ECHR legal regime, which maintain its unofficial partnership with the ECJ, whose own doctrine obliges it to honor the ECtHR whenever the Convention is relevant. Moreover, the EU is still lacking in ample legislation with respect to human rights. The main work of ECJ is to ensure that EU law is not interpreted and applied differently in Member State. However, the current circumstances might be changed according to the new Constitution for Europe.

3 the draft Constitution with the incorporated Charter

One of the most outstanding accomplishments of the draft Constitution is incorporation of the Charter of Fundamental Rights into the Constitution. The Charter, in its three years’ life, has obtained appreciations from all around though it has not yet legal binding force. In order to analyze the effect of the Charter on the EU human rights system, we first examine at first the Charter itself, then based on the analyze of legal status of the Charter, we concentrate on the relationship of the Charter in the Constitution and ECHR as well as the possible two courts system could be occur.

3.1 the content of the Charter
The Charter was designed as a political and legal objective of EU while the EU has entered a more resolutely political phase of integration. As the European Commission stated in its Communication of September 2000: “The Charter is a major milestone for Europe as a political force, which is evolving into an integrated area of freedom, security and justice, simply as a consequence of citizenship. It is an indispensable instrument of political and moral legitimacy, both for the citizens of Europe in relation to politicians, administratio

ns and national powers and for economic and social operators.” Besides, it was considered that the list of rights contained in the Charter offers a more precise definition of the common values that must be respected in a wider environmental entity by means of establishing a common language on fundamental rights in EU.

The Charter presents better practical protection for fundamental rights in the EU. Most of these rights are indicated in both the case law of the ECJ and Article 6 of the Treaty on European Union. However, with the reference of the Charter, it is anticipated, the EU citizens need neither to consult the case law of the ECJ nor to read the articles of the complex treaties, in which the provisions refer to yet again other sources such as the ECHR and the constitutional traditions of Member States, in order to get a clear consciousness of their rights. Indeed, the articles in the Charter are grouped explicitly around six fundamental values: dignity, freedoms, equality, solidarity, citizenship and justice. While most of the rights listed are granted to everyone, some certain rights are granted to specific groups of people: i.e. children, workers Union citizens , Citizens of the Union and nationals of non-member countries residing in the Union

As we have mentioned in point 2, the Charter could be regard as a syncretism by means of absorbing rights from broader recourses besides the ECHR. Thus the content of the Charter is broader than ECHR provides, while the ECHR is restricted only to civil and political rights. For example the Article II 8 in the Charter protection of personal data is derived from Article 286 EC Treaty; Directive 95/46/EC of the European Parliament and the Council; Article 8 ECHR; Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data; Article II 10 2. Paragraph 2 right to conscientious objection might be developed from national constitutional traditions ; more typical is Article II-18 right to asylum comes from both the Article 63 EC Treaty and Protocols relating to the United Kingdom and Ireland annexed to the Treaty of Amsterdam and to Denmark . The same cases we can cite in all places from the Charter, which reflects the nature loose relation between the Charter and the ECHR and other documents of Council of Europe.

So according to the content of the Charter, it is sensible to summarize it as a self sufficient constitutional legal source providing adequate and complete protection for human rights.

3.2 the change of the legal characteristic of the Charter

The Charter was supposed to function as a symbol that would “counterbalance the euro and become part of the iconography of European integration and contribute both to the identity of and identification with Europe” when it was finally signed in the IGC in Nice. Since the Charter was not integrated into EU treaties, which led to non-binding force stat

us. However, the Charter itself seems to have already paved a way to its incorporation into EU treaty as a constitutional “bill of rights”. Because it has created potential and provided a more solid basis for the commitment of the EU institutions to the protection of fundamental rights. This is the deficiency in EU Treaties, which should be complemented sooner or later . It is also unambiguous that the EU institutions, which have proclaimed the Charter, would commit themselves to respect the Charter.

As a result, then on the one hand the Charter made EU citizens better to understand the extent of their rights to defend against violations on human rights. So that they should be capable of referring to the Charter when they challenge any decision against their deserved fundamental rights taken by EU institutions or by Member States implementing EU law. On the other hand, the EU Institution should act on the Charter whenever they drew policies and settle disputes according to petition. As a logic consequence, the ECJ as judiciary part should also regard the Charter as a binding inter-institutional agreement. It was yet exactly the reality. Short after the proclamation of the Charter, the European courts published new case law established referred to the Charter. Until early 2002, the Advocates General of ECJ had referred to the Charter in 14 of the 23 cases they handled in relation to human rights .The Court of First Instance has also acted on the Charter. In a significant judgment of 3 May 2002 the Court even changed the rules governing individual access to the European courts, making reference to Article 47 of the Charter, which guarantees individuals whose rights are violated the right to an effective remedy before a tribunal.

In any case it is obvious from above discuss, though the declaratory character of the Charter does not have legal binding as far as the legislative status of the Charter is concerned, it has already unchallengeable impact. So the incorporation of the Charter is only a question of time and method. Now as the Charter enshrined in the Constitution, it become directly binding if the draft Constitution come into force after ratified by member states.

3.3 the difference from the Convention

The Union had currently no competence to adhere to the ECHR, while this competence is explicitly provided for in the draft Constitution, which stipulates that the Union will endeavor to adhere to the ECHR . It was declared, that as for the incorporation of the Charter in the Constitution, adhesion to the ECHR does not mean any change to the Union's powers as defined in the Constitution. The full incorporation of the Charter and adhesion are complementary rather than alternative steps, because the Charter does not function in competition with the ECHR. In this context Article II 52 of the draft Constitution makes clear, that the Charter respects the Convention, its protocols, and the case law developed by the Europe

an Court of Human Rights. The rule seems simple: the rights and liberties shared by the Convention and the Charter have the same meaning in both texts, even if the wording of the Charter is different, either in an attempt to update the Conventions text written in 1950 or to create a shorter and more readily comprehensible version.

However, it is all what the Charter and the draft Constitution seek? Most importantly, what highlights in the Charter such as respect for the principle of democracy, for human rights and fundamental freedoms is not a new pledge, but they why the Charter reaffirms explicitly and makes them perfectly, then upgrade them to constitutive rights? According to my view, the adhesion to ECHR seeks the minimum security of human rights, however there is no reason to allege that the interpretation respecting the Convention must be accurate for the EU, especially along with the growth of the Council of Europe that many countries of East Europe attended including Russia. After all, the status of Council of Europe becoming more pan-European after a astonish increase of the members after collapse of the socialism block after 1990. The criteria of being a member of Council of Europe is distinct from those of join the EU. If the Council of Europe could reach common understanding consistent with the human rights issues through its mechanism such as the committee of ministers, and achieve the Convention’s aims as provide remedies suitable for all the members under ECHR, then, such situation may be not the case today. Since it is likely undue that one can claim fair and working condition easily in large eastern European area where the unemployment rate is high up to almost 15%; it is also impossible to enforce some new set-up democratic countries to become conscious of the right of citizens to good administration as in the Charter states, on the contrary, too. So accordingly, the Charter avoids imposing limitations on rights that are unlimited in the Convention, as this would seriously lower the level of protection afforded by the Charter. Actually, as it states in the final report of working group of the draft Constitution:

The second sentence of Article 52 § 3 of the Charter serves to clarify that this article does not prevent more extensive protection already achieved or which may subsequently be provided for (i) in Union legislation and (ii) in some articles of the Charter which, although based on the ECHR, go beyond the ECHR because Union law acquis had already reached a higher level of protection (e.g., Article 47 on effective judicial protection, or Article 50 on the right not to be punished twice for the same offence). Thus, the guaranteed rights in the Charter reflect higher levels of protection in existing Union law.

Then the Charter further includes a standstill clause: Article II 53. It sets out to preserve the level of protection already afforded by Union, national and international law, in their respecti

ve spheres of application, as well as Member States’ constitutions and international agreements. This clause also makes specific reference to the Convention, stresses that the Charter cannot undermine rights already guaranteed by that agreement. Clearly, that means it is the Convention which supplies the minimum protection as the lowest standard but the aim of the Charter of EU is to provide fundamental rights protection at a higher level than the Convention, which focus depend on the enlargement and the improvement of the democracy institutionalization of EU itself.

In this context, as it states in the preamble of the Charter in the Constitution , the Union respects and interpreters the Charter in compliancy with the ECHR, could be only a scheme to recognize the current circumstance, while the principles of human rights protection derived from the Council of Europe have been general evolutes as constitutional traditions and international obligations common to the Member States.

3.4 possible consequences: two courts system

If the Constitution provides different protection of human rights for EU citizens, the question will left to the judicatory of EU: what a possible procedure could be for Courts of EU to refer questions relating to the Convention if the Constitution come into force, in which the accession to the Convention was expressed clearly in Article I-7. Though the accession would ensure a uniform minimum level of protection across Europe irrespective of the legal actor, it would bring the conflict of jurisprudence between two Courts- ECJ and ECtHR. It was suggested that the ECtHR could give its advisory opinion for the ECJ to apply. However, sensitive issues took place, for example: whether judges from countries outside the Union would hear cases relating to EU law. Especially as we mentioned, it is suspectable whether with the rapid expansion of Council of Europe membership in the east, there will be possibility that the standards of protection applied by ECtHR could be weakened. And what could deal with the appeal according to the rights provided by the Charter but not fall in scope of ECHR? It is now hard to give satisfactory answers to these questions, however, one thing is sure, that the Courts of EU should acquire more competence in this part.

Theoretically, the ECJ has played the same role as ECtHR in some cases. The ECtHR provides the ultimate remedy against relevant authority in case the applicant regards he is personally and directly the victim of a breach of one or more f these fundamental rights by one of the States when all domestic remedies has been exhausted. Alike, for several decades, the ECJ has also played an important role in ensuring the protection of fundamental rights inside the Union legal order, by developing a method for the review of performances of the Union institutions for human rights violations, despite lacking of sufficient relevant provisions in Treaties. Though the Court's

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