The European Union and the Council of Europe on the Issue of Human Rights: Twins Separated at Birth?

Quinn, Gerard, McGill Law Journal

Originally an economic union to further market integration, the European Union has gradually and paradoxically become a major force in human rights both within and outside Europe. The author surveys this development, from early inchoate principles in treaties up to the recent Charter of Fundamental Rights of the European Union. He argues that the issue of human rights is closely linked to the still-controversial goal of European political integration, and its further development depends on the future direction of that integration.

After the Second World War, different yet complementary approaches to European reconstruction emerged, exemplified by the Council of Europe on the one hand and the European Union on the other. The former's interstate approach augmented existing nation-states on the basis of shared ideals, while the latter's supranational approach used a common economic space to erode national boundaries. As the Union's vision of political integration was gradually realized it drew closer to the human rights principles championed by the Council. During the 1990s this latent convergence became visible, and human rights provided a core instrument for re-legitimating the economic project by increasing the Union's relevance in ordinary people's lives.

The author concludes by considering the future of the human rights agenda in Europe. Its challenges and changing nature necessitate redefining the relationship between Council and Union towards greater co-operation. These institutions are, in a sense, twin organizations only now beginning to come to terms with each other.

Alors qu'elle constituait a ses debuts une union economique destinee a promouvoir l'integration des marches, l'Union europeenne est graduellement--et paradoxalement--devenue un acteur important dans le domaine des droits de l'homme, autant en Europe que dans d'autres regions. L'auteur fait etat de cette evolution, des premiers principes generaux issus de traites jusqu'a la recente Charte des droits fondamentaux de l'Union europeenne. Selon lui, la question des droits de l'homme est etroitement liee a l'objectif encore controverse d'une integration politique europeenne et, en consequence, ses progres futurs dependent de l'orientation que prendra cette integration.

La creation du Conseil de l'Europe, d'une part, et de l'Union europeenne, d'antre part, illustre les approches differentes quoique complementaires concernant l'integration europeenne adoptees apres la Seconde guerre mondiale. Alors que la premiere--une approche interetatique--renforcait les etats-nations en conformite avec des ideaux communs, la seconde--une approche supranationale--utilisait l'espaee economique commun pour estomper les frontieres entre les Etats membres. Le succes du projet d'integration politique rapprocha graduellement celui-ci des principes relatifs aux droits de l'homme dont le conseil se faisait le promoteur. Cette convergence latente devint visible darts les annees 1990, et les droits de l'homme fournirent alors un instrument de base pour 1egitimer de nouveau le projet d'integration economique en demontrant la pertinence de l'Union pour la vie quotidienne des citoyens.

L'auteur conclut en abordant l'avenir du programme europeen des droits de l'homme. Les nouveaux defis et la nature changeante de ce programme necessitent une redefinition de la relation entre le Conseil et l'Union afin de permettre une meilleure cooperation. Ces institutions, qui sont en un sens jumelles, ne font que commencer a developper une veritable relation.

Introduction

I.   Backdrop: The "Problem" of the "Nation-State" and the "Solution"
     of Competing Models of European Integration
     A. The Nation-State in Europe
     B. Augmenting the Nation-State: The Council of Europe and the
        Human Rights Agenda
     C. Eroding the Lines between Nation-States in Limited Sectors: The
        EU and the Market Integration Agenda

II.  The Slow Rise of Human Rights Doctrine in EU Law
     A. Early Treaty Articles of Human Rights Resonance
     B. The Emergence of General Principles of Community Law in ECJ
        Jurisprudence

III. Options for Enhancing the Human Rights Dimension

IV.  The 1990s--The Human Rights Issue to the Fore in the EU
     A. Background: The 1980s Market-Building Agenda
     B. Preparing the Ground: Three "Comite des Sages" Reports on Human
        Rights
     C. Report of the Westendorp Reflection Group (1996)

V.   Human Rights and Treaty Changes at Amsterdam (1997)

VI. The Charter of Fundamental Rights (2000)

Conclusion

   The Union is not amt does not want to be a super-state. Yet it is
   far more than a market. It is a unique design based on common
   values. We should strengthen those values ... (1)

Introduction

Unlike the Council of Europe ("Council"), the European Economic Community ("EEC") was not generally known in the past as a human rights organization and certainly did not see itself as such. Instead, it saw itself as pioneering an historically unique experiment of cross-border economic integration--an experiment that was not obviously or visibly based on high principles such as human rights.

All of this is changing. (2) In the short space of a decade the European Union ("EU", "Union")--since 1992 the successor to the EEC--has become the single largest funder of human rights activities throughout the world. (3) Successive waves of treaty revision have led to the accretion of human rights competences at the level of the Union. (4) The EU presents a common front at major international forums dealing with human rights issues, including the United Nations Commission on Human Rights. (5) It has a near-global diplomatic reach which, together with its trading prowess on the world stage, enables it to flex its diplomatic and economic muscle to leverage change. Human rights issues now figure prominently in the external relations of the EU and in its development co-operation programs. Since 1999 the EU has begun publishing an Annual Human Rights Report and organizes a large discussion forum with considerable NGO involvement around its publication each year. (6) The latest and highly visible manifestation of this trend towards human rights in the EU is the adoption of the non-binding Charter of Fundamental Rights of the European Union (7) by the heads of state in December 2000.

This trend could potentially transform the nature of the EU. The Union is increasingly being seen not merely as an economic force, but also as a potential force for good both on the world stage and at home. This trend also bristles with many potential implications--both positive and negative--for the Council of Europe, which is still Europe's premier human rights organization. The implicit repositioning of the Council is quite crucial when one recalls that the membership of the Council (which currently stands at forty-three) sweeps far beyond the existing fifteen Member States of the EU and embraces most of the former communist states of eastern and southeastern Europe. (8)

The story of the role of human rights in the construction of the EU is complex, ongoing but compelling. It is part history, part politics, and part law. It is intimately tied up with the felt need for a new beginning in the aftermath of the Second World War. It is an ongoing work in progress precisely because the process of European integration has no natural (or at least no agreed) end point.

In this essay I try to come to terms with the place of human rights in the evolving EU legal and political order. I focus on the internal dimension of human rights within the Union as distinct from the human rights dimension of its external relations, development aid, and co-operation, which deserve separate treatment. To do so I first look at how Europe diagnosed its own situation in the aftermath of the Second World War. This is important, for it reveals quite clearly that the founders of unification perceived that Europe's chief problem did not reside in the legacy of centuries of enmity, but lay instead in the political and legal ideal of the nation-state itself. It follows that the main challenge confronting the founders was to find a way (or a plurality of complementary ways) to reconfigure European nation-states to avoid internal repression and external aggression--two goals that are not unrelated.

This theme of the place of the nation-state reverberates through the decades since 1945. Even now Europe seems to have the greatest of difficulties in addressing the core question of whether the modern idea of Europe is larger than the nation-state or whether it is built on--and ultimately bounded by--the nation-state. This seemingly theoretical issue is not merely interesting in its own right, but also holds the key to understanding the place of human rights in the evolving EU legal order. To many the growth of human rights in EU law signifies a trend towards greater European federalism--a trend that can be applauded or deplored depending of course on the political view one takes of the nature of European integration.

I then recount the various attempts through the decades to enhance the visibility and role of human rights in the EU legal order. As is well known, the original EEC was grounded on a particular model of integration ("functionalist integration") that did not obviously rest on principles of human rights. (9) Nevertheless, it was equally plain that the ultimate--if frustratingly unarticulated--object of functionalist integration was quintessentially political in character, and therefore cohered very well indeed with high principles of human rights. To a certain extent, those who have consistently argued for greater prominence for human rights in EU law and policy have tended to focus on this end goal of political integration--an end goal that is fatally incomplete without human rights. Those who have argued against greater provision for human rights in the EU have often done so on the basis that it fits only too well with a proto-federation.

Last, I take a look at the process for reform underway within the EU. Perhaps surprisingly, most of the practical steps taken towards further provision for human rights in the early days were taken by the European Court of Justice ("ECJ"). The movement for greater human rights visibility now seems irresistible, and has been described as a train that has left the station but with no obvious destination. (10) I will conclude by reconsidering the complementarity of the Council of Europe and the European Union generally and specifically in the field of human rights.

I. Backdrop: The "Problem" of the "Nation-State" and the "Solution" of Competing Models of European Integration

To understand the "fit" of human rights with EU law it is first necessary to reflect on the nature of European integration. This process is both reactive and proactive. It is reactive in the sense that integration reacts against the excesses of the nation-state-excesses that were perceived to contribute to the slide towards war. It is proactive in the sense that it conjures up an image of a Europe that can transcend its parts.

A. The Nation-State in Europe

To start our analysis with the nation-state may seem strange. It is important to recall, however, that there was a real feeling in Europe in the late 1940s that Europe needed to become once again greater than the sum of its parts. Much of the blame for the catastrophe of the Second World War was laid at the foot of the …

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Publication information: Article title: The European Union and the Council of Europe on the Issue of Human Rights: Twins Separated at Birth?. Contributors: Quinn, Gerard - Author. Journal title: McGill Law Journal. Volume: 46. Issue: 4 Publication date: August 2001. Page number: 849+. © 2009 McGill Law Journal (Canada). COPYRIGHT 2001 Gale Group.

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