International Human Rights and the EU Charter
| Published date | 01 December 2001 |
| DOI | 10.1177/1023263X0100800402 |
| Date | 01 December 2001 |
| Author | Sejal Parmar |
| Subject Matter | Article |
Sejal Parmar*
8 MJ 4 (2001) 351
International Human Rights and the EU Charter
§ 1. Introduction: EU ‘Constitutional Fever’ and Human Rights
Aspirations
A particularly severe bout of constitutional fever has gripped the Union in the wake of
the European Council at Nice. The amendments made to the founding Treaties
including a Protocol on Enlargement, the new commitment to a ‘deeper and wider
debate’ on the future development of the EU in the Declaration on the Future of the
Union1 and the proclamation of the Charter of Fundamental Rights for the European
Union2 (hereinafter Charter) have resulted in a heightened, even unprecedented level of
constitutional discussion amongst politicians, the media and EU scholars. Discussions
on the Charter have so far concentrated upon its internal constitutional significance for
the EU polity. A special issue of this journal on the Charter has already dealt with issues
such as the Charter’s legal status, its personal scope of application, its relationship with
the European Convention on Human Rights (ECHR) and the role of the European
judiciary.3 In contrast, this article analyses the EU Charter from the human rights
perspective, specifically the international human rights context of the ‘fundamental
rights’ contained within the Charter. The lack of interest in the international human
rights perspective may not be so surprising given that so far the role of international
* Research Student at the Department of Law, European University Institute, Florence. This article is
based on a paper that was presented at a conference on Human Rights in Europe organized by the
Durham European Law Institute on 13 – 14 July 2001. I am grateful to the participants of that
conference, especially the rapporteurs on my panel, Eugenia Carocciolo di Torella and Panos
Koutrakos, and also Gráinne de Búrca and Mark Bell for their comments and helpful suggestions on
earlier drafts.
1. See the documents on The Future of Europe – Debate website http://europa.eu.int/futurum.
2. [2000] O.J. C364/01. See also the website of the Convention drafting body on the website of the
Council http://db.consilium.eu.int and the website of the Commission (Justice and Home Affairs) at
http://europa.eu.int/comm/justice_home/unit/charte/index_en.html
3. See Special Issue: European Charter of Fundamental Rights 8 Maastricht Journal of European and
Comparative Law 1 (2001) 1. Notably, this issue’s editorial does reflect upon the Charter’s external
dimension.
International Human Rights and the EU Charter
352 8 MJ 4 (2001)
human rights instruments in EU law has been marginal. Since the earliest Court of
Justice enunciations on fundamental rights, international human rights instruments on
which the Member States have collaborated or of which they are signatories have been
vaguely referred to as a ‘source of inspiration’ to be taken into account when
safeguarding fundamental rights under Community law.4 International instruments have
also infiltrated, indirectly or implicitly, as part of the ‘constitutional traditions’ common
to Member States that the Union should respect, unlike the ECHR that has always been
allocated an elevated status in jurisprudence and later in the Treaty. And yet the
international human rights context cannot be readily forgotten. The drafting of an EU
Charter, a ‘prelude’ to an EU constitution5 and the latest and up till now the most
important component of the EU’s evolving ‘system’ of human rights protection, did not
take place in a normative vacuum, or a legal environment governed solely by the ECHR
and other European sources. Indeed, the drafting process presented a clear and unique
opportunity to situate EU law within the framework of international human rights. As
Alston and Weiler have argued, the establishment of a broader, coherent and substantive
EU human rights policy ‘can be neither conceived nor executed without full account
being taken of the broader human rights context within which the Community finds
itself’.6 The central contention of this article follows on from this: a Charter with no
obvious grounding in substantive international human rights norms is an impoverished
one. The article argues that the EU ought to completely sever the ties with its Market
orientated objectives and acknowledge the influence of international human rights
norms, values and developments in the forging of a new EU human rights policy.
A constellation of European and international organizations raised arguments and
proposed drafts with innumerable references to international instruments in submissions
to the Convention.7 But why should there be an explicit reliance upon international
norms within the Charter at all? Featuring the most important and basic international
human rights treaties as the primary reference points or sources for the Charter rights
within the explanatory document may have seemed an unnecessary waste of ink for the
4. In the landmark judgment Hauer, the Court of Justice stated the guiding principle that ‘Fundamental
rights form an integral part of the general principles behind the early development of the law, the
observance of which it ensures; that in safeguarding those rights, the Court is bound to draw inspiration
from the constitutional traditions common to Member States ... international treaties for the protection
of human rights on which the Member States have collaborated or of which are signatories’. Case
44/79 Hauer v. Rheinland-Pflaz [1979] ECR 3727.
5. See the conclusion of Lenaerts and de Smijter who suggest that as a Bill of Rights the Charter could
‘serve as a prelude to a European constitution’. K. Lenaerts and E. de Smijter, ‘A “Bill of Rights” for
the European Union’, 38 Common Market Law Review (2001), 273, 300.
6. See Alston and Weiler, ‘An “Ever Closer Union” in Need of a Human Rights Policy: The European
Union and Human Rights’, in P. Alston, M. Bustelo and J. Heenan (eds.), The EU and Human Rights,
(Oxford University Press, 1999), 28.
7. From the UN system, the Committee on Economic, Social and Cultural rights and the High
Commissioner for Refugees were perhaps surprisingly the only bodies to submit comments to the
Convention. Yet the international prestige and standing of the two UN institutions was also unable to
have much impact upon the style of the final Charter text.
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