The Treaty of Lisbon came into force in 2009 and alongside it, a reference to the Charter of Fundamental Rights (Charter) gave it legal standing. The Charter became one of the most defining documents the European Union has ever witnessed, or a mere piece of symbolic literature that is ineffective in practice. Now that it has been implemented, we must wait in anticipation to see where it takes us but for now, by looking at the history of human rights protection and its contents, we can seek to assess whether this development will prove to be ‘revolutionary' or a mere replication of what we already have.
In this paper, I have split the analysis into two sections, the first providing a description of human rights protection within the European Union (EU) since its introduction, and secondly, how the introduction of the Charter will interact with existing problems and whether it can be seen as a development of overcoming them, or whether it is a codification of what was already present before its existence.
It is necessary to understand the past human rights protection in the EU to appreciate what affects the Charter will have in the future: “How we explain the past to ourselves profoundly seems to influence how we feel we should act in the future.”
In 1957, following the Treaties of Rome, the Union was primarily an economic system. It had no specific human rights protection but being a trade organization, it would not have seen the need to bring this under its supervision. Instead, rights were protected by the system in Strasbourg through the European Convention of Human Rights (ECHR).
As it grew, so did the provisions the Union covered, at the national level.
[...] Presidency Conclusions, Nice European Council & 9 December 2000, p Note the Debate on the Convention of the Future of Europe, Hansard,, HL col.900 (January 7 2003.) Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.” For example Article 29, ‘Everyone has the right of access to a free placement service' which is not relevant to every Member State. [...]
[...] This growing concern led to a growth in political ambitions as to where the EU should be in regards to protection.[14] Part Two: The Charter of Fundamental Rights The Charter was seen first at Nice[15] described as, ‘combining in a single text the civil, political, economic, social and societal rights hitherto laid down in a variety of international, European or national sources.' It is composed of 54 articles, and seven chapters. It was nearly a decade until it was elevated to a respected status. [...]
[...] 1991) Articles Grainne de Burca, drafting of the European Union Charter of Fundamental Rights' (2001) 26 European Law Review 126 Stephen Carruthers, ‘Beware of lawyers bearing gifts: a critical evaluation of the proposals on fundamental rights in the EU constitutional treaty' (2004) European Human Rights Law Review Jason Coppel and Aidan O'Neill European Court of Justice: Taking Rights Seriously?' (1992) 29 Common Market Law Review Erik Erikken, ‘Governance or Democracy? The White Paper on European Governance' Jean Monnet Working Paper No.6/01 Jurgen Habermas, ‘Citizenship and National Identity: Some Reflections on the Future of Europe' (1992) Praxis International Volume 12 1-19 A.H Robertson, European Political Community' (1952) 29 BYIL. [...]
[...] Weiler, ‘Methods of Protection: Towards a Second and Third Generation of Protection', taken from Human Rights and the European Community: Methods of Protection (Antonion Cassese et al. Eds. 1991) Kyriakou (n.24) and also see Ulrich Preuss, ‘Constitutional power- making for the new polity: some deliberations on the relations between constituent power and the constitution' (1991)14 Cardozo Law Review 639 McCrudden (n.2) p.12 Grainne de Burca, drafting of the European Union Charter of Fundamental Rights' (2001) 26 European Law Review 126 at p.131. [...]
[...] The legitimacy of this is called into question when we remember why the ECJ developed this jurisprudence; a political response to protect its own autonomy.[27] And at the same time the European judges should not bear the entirety of the burden of upholding rights, which instead should be found in a democratic society based on the rule of law.[28] The Charter is a large document with actually more rights included than under the Convention. So should the argument be settled that the position of the Charter now achieves the credibility many argued it should have? [...]
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