The Greek Conference - Mykonos, September 2005 Papers

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THE INTERPLAY OF THE NATIONAL, THE INTERNATIONAL AND THE UNION’S PROTECTION OF HUMAN RIGHTS IN EUROPE

George Papadimitriou*

I. Introduction

After World War II, the protection of human rights is not any longer exclusively concern and aim of the Polity. Besides their constitutional protection, with which we had already been fairly well familiar, there were important initiatives for their guarantee at the regional level as well as worldwide. Typical examples in this respect are on the one hand the European Convention of Human Rights ("ECHR") (1950) and on the other the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966). This evolution reached its peak in Europe with the establishment of an independent Court the European Court of Human Rights (which is referred to in Part II, below).

Furthermore, the problem of human rights protection became quite pressing in the European Union, particularly at the end of the 1990s (III below).

Within this framework, the Charter of Fundamental Rights was adopted fairly recently (referred to in Part IV, below).

As a consequence, their protection emerged as a critical issue not only of any modern polity under the Rule of Law but also of the international society and the European Union.

The consequence of this reality was the development of distinct systems, operating within their ambit, i.e. the polity, the international organizations and the European Union. Naturally, the problem of their relationship and eventually of their harmonious function has become manifest.

II. The Legal Order of the ECHR

From the outset, the distinct legal orders of the polity and the ECHR functioned complementary to the extent that they shared the basic and unwavering aim of enhanced protection of human rights.

The corresponding guarantees provided by each member at the national level must be consistent with the protection of the Convention. The ultimate standard for the achievement of this goal is the interpretation of its rules by the European Court of Human Rights.

It is in this process after all that their content is constantly redefined. The Convention and the jurisprudence of the Court, which marks the adaptation to the new circumstances, constitute the common denominator of the existing protection in the larger European area, notwithstanding the variations encountered in respective polities.

It should be underlined that the ECHR by its very structure and fundamental choices establishes a coherent and thematically defined legal order.

Its reach is not conclusive to the extent that it is limited only to the protection of human rights. Moreover, within the scope of its application, finally, the rules of the Convention take priority over the rules of the national legal order. Thus, the elements of supra-nationality, which constitute the quintessence of the ECHR, become apparent. In this sense, the Convention constitutes a thematically defined, coherent, supra-national legal order.

This approach reveals its eclectic relation with the European Union’s legal order. There are, however, important differences between them. The legal order of the ECHR is not autonomous like the Union’s one; it is merely coherent, while at the same time it is closely interrelated with the national legal order.

The element that justifies calling it supra-national is located in the superiority of its rules over the national ones, guaranteed by the Court’s decisions. In this respect, there seems to be no exception regarding even the rules of constitutional rank. This results from the obligation of the polity to comply with the decisions of the Court, no matter what.

This obligation exists independent of the validity of the national rule, which the Court may find inconsistent with the Convention. Even when the national rule in question is of a higher ranking, the polity has the obligation to comply. It is precisely in this respect that the legal order of the Convention is similar to the Union’s one. Obviously, it is commonsense that the Polity has the discretion to choose the adequate means for its compliance; in other words, it can seek solutions through legislation and other practices consistent with the Convention without having, of course, to amend its Constitution.

National protection and protection under the Convention develop therefore dialectically in the context of an open and creative dialogue …functioning harmoniously in practice with the necessary adaptations. Out of this relationship arises a constant refinement and enhancement of human rights that correspond to the evolution of the European societies.

By this means, democracy and the Rule of Law are strongly consolidated in Europe. Their consolidation combined with the welfare state gives to the European model of liberty and social solidarity its distinctive meaning and makes possible its immense international appeal.

III. Human Rights in the European Union

The Treaties of the European Communities had, in essence, not provided for the protection of human rights; the need for their guarantee was realized rather belatedly. On many occasions, the ECJ attempted to fill this gap by developing case law that was steadily enriched as time passed. Nevertheless, the protection of human rights remained more or less fragmented. As European integration proceeded and the European Union was being transformed from an economic into a political union, this fact put forth urgently the establishment of a distinct and coherent system for the protection of human rights in the framework of the Union’s legal order.

The Treaty of Maastricht (1991) and the Treaty of Amsterdam (1997) attempted to tackle this problem. The solution they adopted provided primarily for upgrading the protection of human rights into a fundamental principle of the European Union (art. 6 par. 1). The Treaties cite for their specification the two large pools for the protection of human rights: a) the ECHR and b) the constitutional traditions common to the member states (art. 6 par. 2).

Therefore, European citizens would have basically to invoke the rules of the Convention, or rules derived from the common constitutional traditions for their protection against acts or omissions of Community organs. Accordingly, the Treaties expressed in essence the position held on the matter by the ECJ, elevating it into a rule of constitutional stature and scope.

The progress made was of course welcome, though the solution adopted was not satisfactory for obvious reasons. It was not satisfactory especially because the European citizens remained in a disadvantaged position to the extent that they could not appeal to a single, inclusive and coherent text in the course of exercising their rights. In other words, a text that by guaranteeing their fundamental rights would assist them in finding the grounds for the protection of their rights and in clarifying the content and the operation of the critical rule for each case.

The Charter of Fundamental Rights (2000) faces this necessity, marking the next important step towards their enhanced protection within the framework of the Union’s legal order. The Charter was drafted by the representatives of the heads of state and of government, of the National Parliaments and of the European Parliament. In the Governmental Summit of Nice (December 2000) it was adopted as a declaration, i.e. as a text of a political and ideological character, because the view prevailed that the circumstances were not ripe enough for the Charter to become binding.

IV. The Charter of Fundamental Rights

The Charter protects rights falling primarily within the three traditional categories. Thus it includes individual, political and social rights. However, its concern is extended towards the establishment of certain new rights, which are expected to tackle problems associated with modern technology. In any case, its greatest innovation lies in not following the classification of rights on the basis of the three traditional categories. The Charter classifies the guaranteed rights in six new distinct thematic units being in this regard internationally original. These units correspond to the six principles-values that constitute the fundamentals of European institutional civilization.

They are, in due order,

Priority of the Charter, which constitutes an innovative document by all means, is the protection of the individual in all the basic aspects of life. Subject of the rights is every person who lives in the European Union and, naturally, every citizen of its members. The Charter guarantees most of the rights to every one residing and working permanently therein and not only to the European citizens. Of course, there are exceptions to this rule reflecting the hesitation that prevailed over the delineation of the group of persons who are subjects of the rights guaranteed by the Charter.

Moreover, the obligations provided by the Charter are primarily addressed to the organs and organizations of the European Union. This option is reasonable to the extent that the main purpose of the Charter is to provide protection vis-à-vis the Union’s authority. However, addressees of the Charter’s obligations are national organs as well, when they are required to apply rules of community law within their competence. Without this provision, the Charter would frequently remain a "dead letter" whenever the implementation of community law is assigned to national organs. In these cases precisely, its commands are also directed to them.

As already said, the Charter does not have yet binding force. Nevertheless, within a few months since its declaration, it has been incorporated into the every day institutional life of the European Union as a document that develops normative function. In other words, as a document whose rules though not binding are applied as such in practice.

Thus, the community organs invoke the Charter, whose diffusion and infusion in the Union’s life has been extraordinary indeed. These features as well as the density of invocation and application characterize its penetration into the Union’s legal order. The period of transition up to the binding force of the Charter is expected to end relatively soon, because it is included as Part III in the Draft of the European Constitution. The adoption of the Constitution by the Intergovernmental Conference (June 2004) and its subsequent approval by all member states according to their own constitutional processes will give a permanent solution to the problem. In this perspective, the Charter is going to acquire full binding force, without being limited to the development of normative function. In other words, it will emerge as a coherent and complete system for the protection of human rights.

V. Mechanisms of Interrelation

The three distinct systems – of the polity, the Convention and the European Union – have their own features. Nevertheless and notwithstanding side issues that inevitably appear during their application, eventually they are dialectically interrelated in a whole having as constant aim the enhancement of individual liberty. For this reason there are adequate, though not always manifest, institutional mechanisms that seek to alleviate the frictions and tensions and contribute to their harmonious function. Next, the most important ones are noted.

Compliance of the polity to the decisions of the European Court of Human Rights makes imperative the recourse to the principle of practical harmony, in the interpretation of the applicable rules. This aims to straighten out potential conflicts and discover the suitable content for each rule, within the legal order involved in each case. As a result, the problems encountered in the function of the two interrelated systems – the polity and the Convention – are mitigated. Every problem should be tackled after all with the central goal of respect for the rules of the Convention as their supremacy over national rules (including the constitutional ones) provides the ultimate standard for its resolution.

It is worth mentioning that the “black and white” approach is inapposite here, because in organizing systems that aim at protecting human rights there are always mechanisms available for the resolution of potential conflicts. In addition, it is always possible to look for the best solution, which guarantees their protection through refined and resourceful approaches.

The relationship that interweaves the Charter and the Convention contributes in its turn to their harmonious function. The Charter’s primary source of inspiration is the ECHR. Moreover, to the extent that the Convention includes relevant provisions, it specifies the general language of the Charter’s rules and offers a basic text of reference for their interpretation.

In this sense, for the specification of its rules not only the Convention’s rules, which are usually more detailed, are important but also the jurisprudence of the Court, which renders them living law constantly adaptable to new circumstances. Their systemic relevance with regard to the issue in question is expressed in the Treaties for the European Union and more eloquently in the Draft of the European Constitution. Art. 6 par. 2 of the Treaties provides expressly that “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.” In the Draft of the Constitution, however, more modern views prevail. Art. 7 par. 1, guarantees the rights, the liberties and the principles included in the Charter, which is per se incorporated into the Constitution as separate part II.

This choice constitutes a very significant breakthrough for the promotion of European unification under conditions of liberty, democracy and social solidarity. It is worth mentioning that the Draft provides as well for the prospect of the Union’s accession to the ECHR (art. 7 par. 2), while keeping art. 6 par. 2 of the Treaties, mentioned above, with the same more or less wording (art. 7 par. 3).

Thus, art. 7 of the Draft alludes in various ways to all three levels of protection of human rights in Europe, i.e.

Even though referring to all three major pools of the European institutional civilization, its drafters save special treatment to the Charter. This choice has primarily a twofold explanation.

At first, the Charter is the product of the Union’s legal order, which is not the case with regard to the Convention and the common constitutional traditions. The European Union “borrows” from the rules of both these pools, in order to provide a way-out to one of its pressing problems under the circumstances before the Charter acquires binding force. Obviously, things will be further clarified following the enactment of the Constitution.

We should not finally forget that the Charter protects every individual who lives in the European Union in all areas necessary to them, while it encapsulates the acquiesce of both the Convention and the common constitutional traditions through the general and dense formulation of its provisions.

The Drafters of the Constitution are fully aware of the close dialectical relationship that unites the protection of human rights at all three levels; moreover, obvious is their endeavor to seek appropriate convergences and syntheses by combining and utilizing them. Their preference for the Charter is reasonable not only for the reasons already mentioned but also because the Charter contributes to the effective protection of human rights in the European Union, through its concise, dense and elegant structure.

The institutional mechanisms presented above, and the channels of communication between the three distinct and interrelated systems reveal their constructive assimilation, which is realized by their application in practice. Their interaction is catalytic, because it contributes to their interplay and evolution. Even though one attached to traditional ways of analysis may be left with the impression that there are frictions and tensions between them, nevertheless, one can find out that recourse to modern concepts and resourceful approaches, inherent in their essence, may lead to their harmonious co-existence and function. This prospect is welcome, because it promotes the generalization, refinement and enhancement of the protection of human rights.

VI. Conclusion

The evolution outlined above creates the impression that the protection of human rights follows a steady course towards its enhancement. Reality however is not always a bed of roses. Human rights are constantly confronted with new challenges arising out of the dialectics of historical evolution. Amongst these challenges, which pose new problems or redefine already known ones, I would like to mention two, which are in my opinion the most important.

1. The first challenge is that "globalization" changes drastically our relations in many areas and makes often necessary a totally different approach to the protection of human rights. Thus, relations which evolve at a globalized level cannot be regulated with the means available to the polity. It is obvious that in these cases we need new insights and new institutional instruments, in order to subject, to the extent possible, some of these relations to rules of globalized function.

This need is already realized, and, as time goes on, it becomes pressing. 2. The second challenge has always been an inherent problem in the protection of human rights; but it was highlighted with great intensity after the events of September 11, 2001.

It concerns the reappraisal of the relationship between liberty and security. Its projection in new terms imposes the search for a new balance between them. A balance that, without ignoring the need for the creation of reasonable conditions of security, does not allow excessive pressures on liberty, under the influence of extreme and on many occasion hysterical reactions. The relationship between liberty and security must always be delineated and measured having as standard the principle of proportionality.

The reverberations of the last challenge are already felt intensely in the European Union, while it has also started to affect the legal order of the Convention. On the contrary, probably because of its inherent difficulties, globalization does not seem to preoccupy, at least to the expected degree, the politics on the protection of human rights.

It seems that we are still under the influence of ideas concerning the promises of globalization, along with the volatile evolution of technology, while we back off from the dangers inherent in its uncontrolled expansion.

It is time however to face the problem seriously, because it is not permissible to maintain for ever relations affecting the protection of human rights unregulated by law and at no cost.

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*Professor George Papadimitriou, University of Athens, Athens, Greece

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Copyright 2005. Greek Legal and Medical Conference