EU: Universality of Rights and hierarchy of standards
When the Universal Declaration of Human Rights was adopted by the UN General Assembly on 10 December 1948, it opened up a huge legal codification task which would grow over the coming years. This project was first of all hampered by the ideological rivalries of the cold war, and then by the political ambiguities of peaceful coexistence. It was not until 1965 that the International Convention on the Elimination of All Forms of Racial Discrimination was successfully adopted, and 1966 when the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights were agreed. Since then, these international instruments, like the other universal “core” treaties that were adopted in turn, have been very widely ratified by the member states of the United Nations.
Regional guarantees of universal principles
At the same time, regional human rights protection systems have been implemented, in particular on the European continent. In this context, since 1950, the European Convention on Human Rights has been adopted within the Council of Europe, in line with the Universal Declaration of 1948. The signatories declared that they were “resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration”. The intention of the founding fathers was thus to provide regional guarantees for universal principles. The development of the European Union introduced a new level of protection, at first indirectly, by means of the jurisprudence of the Court of Justice of the European Union, based in Luxembourg, and then directly, in 2001, with the proclamation of the “Charter of Fundamental Rights of the European Union”, implemented by the Treaty of Nice and given a restrictive character by the Treaty of Lisbon (2007).
Strasbourg versus Luxembourg?
Even if the initial underlying “inspiration” for all these texts – the Universal Declaration and the International Covenants, the European Convention on Human Rights and the Charter of Fundamental Rights – is largely the same, the formulations vary significantly and above all, do not necessarily provide for convergence in subsequent interpretations. In this regard, there has been a lot of discussion of whether and how the “judges’ dialogue” or the “prescribed pluralism” can ensure cohesion of the legal decisions. Opinion 2/13 of the Court of Justice of the European Union given on 18 December 2014 (Luxembourg) appears to shut the door in the face of the Council of Europe’s European Court of Human Rights (Strasbourg), despite the provisions of Article 6 of the Treaty on the European Union, which stipulates that the Union should adhere to the European Convention for the Protection of Human Rights. But the question is more general, and aimed at linking the various different legal systems in place.
But nothing of this kind can clarify the interplay between the different supranational systems. The European Union affirms its autonomy and its legal “primacy”, refusing to be subordinate to any external judge and multiplying the aforementioned clauses disconnecting it from the conventions drawn up within the Council of Europe. In practice, the two jurisdictions, the Court in Luxembourg (EU) and the Court in Strasbourg (Council of Europe) have succeeded in maintaining a form of truce, thanks to the concept of “equivalent protection”, which avoids direct criticism of the way an international organisation’s competences are exercised. Some member states have nevertheless been sanctioned on occasion for their implementation of European directives and regulations, including the imposition of UN sanctions.
How can convergence be achieved?
The main difficulty does not arise from theoretical articulation, since each treaty contains a kind of indexation clause aimed at the “best option”, the provision that best protects human rights, in line with Article 53 of the European Convention on Human Rights concerning “the protection of recognised human rights” or Article 53 of the EU Charter of Fundamental Rights concerning the “level of protection”. But this concept appears to be extremely subjective as soon as real-life situations are encountered. Once again it is a matter of judges’ self-restraint, invoking the “national margin of appreciation” or the principle of subsidiarity, that seems to be the best assurance of convergence between all the levels of protection, whether it is a case of constitutional principles, European undertakings or international obligations.
No jurisdiction has a monopoly any more on the interpretation of universal human rights standards, but each should be aware of the repercussions of its own interpretations on the coherence of the system as a whole.
Emeritus Professor at the Panthéon-Assas University, Paris II
Translated from the original text in French
The views expressed in europeinfos are those of the authors and do not necessarily represent the position of COMECE and the Jesuit European Social Centre.