No. 3




European Union Charter of Basic Rights and the European Convention of Human Rights

18 June 2001


RiTo No. 3, 2001

  • Rait Maruste

    Member of the Riigikogu, Estonian Reform Party

At the initiative of Germany, an assembly was formed at the summit meeting of the European Union (EU) in 1999, in Cologne. Its aim was to develop a draft of the Charter of Basic Rights of the EU, and to present it at the summit meeting of the EU in Nice, in December 2000.

The membership of the assembly was representative: it contained representatives of governments and parliaments of the member states of the EU, as well as the representatives of the European Parliament and the European Commission. The representatives of the Court of the European Union (based in Luxembourg), of the European Council and of the European Court for Human Rights (based in Strasbourg) were included in the process as observers. The project was led by the former Head of Germany’s Federal Constitutional Court and the President of Germany, Roman Herzog. The draft was reviewed and approved at the meeting in Biarritz at the beginning of October and adopted at the Nice summit.

The problems related to the Charter have been on the agenda (although with varying intensity) ever since Winston Churchill’s famous speech at Zurich, where he brought the idea of the United States of Europe to the attention of the post-war European political public for the first time. Depending on the conflict between the federalists and the unionists, this topic has constantly been on the agenda ever since.

Why adopt another act concerning human rights? The reasons for the new act are twofold. The first are those of socio-political nature. The politicians of Europe felt the need to demonstrate to increasingly sceptical voters, that they are not concerned only with the economic development of the EU, but also consider important the rights and freedoms of each individual and wish to render them more visible in the EU. The aim was to bring a deeper socio-humanistic measurement into the outline and practice of the EU. This would lead to increased differentiation from the original orientation towards technical and economic co-operation (which stemmed from the period of coal and steel mergers) and take into deeper consideration modern social developments and expectations.

Secondly, there is the EU’s search for a definition concerning public law. The EU’s future public law status still remains open. It is unclear whether the EU will be something resembling a unitary state, will it be a federation or a confederation or something else, or is it in fact something of a UPO (an unidentified political object). It is clear, however, that regardless of the form which the future EU will take, it will not be able to get around its first act, or constitution. The essential, perhaps even the most important, part of every constitution is the Bill of Rights, or that which has currently been summarised in the Charter. The level of political readiness has not enabled it to progress further at the moment.

Neither is it unimportant that as a result of the significant and objective socio-economic differences between both the member states of the EU and states outside it, it will be inevitable that higher standards are set for the more developed countries (for those countries which belong to the European Convention for Human Rights [ECHR] and are also members of the EU. This is permitted by article 53 of the ECHR.1

The Charter seems to be, at least initially, aimed at internal control. Article 51/1 of the Charter states that “The provisions of the Charter are aimed at the institutions and organs of the Union taking into account the principle of subsidiarity and at the member states only when they apply the law of the Union.” The compatibility of the Charter and the ECHR is hoped to be achieved by the preamble provision of the Charter, whereby the latter is among others, based on the rights stated in the European Convention of Human Rights, the Social Charter of the European Council and the practices of the European Court for Human Rights.

Many norms of the Charter are rather principles and aims, as opposed to applicable legal norms. Therefore, their subjection to court control is very questionable. The Charter brings in the terms of solidarity and equality and determines the rights of EU’s citizens. The construction and phrasing of the norms implies their constitutional nature. Whether the Charter will remain a political declaration, a definition of aims, or whether it will become a legally binding agreement, is still open and will depend on how, and with what speed, an agreement can be reached on the architecture of the EU’s public law.

What does the Charter signify for Estonia and other candidate countries? It signifies nothing from a juridical point. It does, however, have political implications. The Charter is the aim and standard setter for the whole EU and will play a constitutional role in the politics, the judiciary and the implementation of the EU’s activities. Therefore, it would be wise to make the Charter available to the public soon and take its contents into account in both current and future laws, as well as in training. The author believes that it would be appropriate to take the contents of the Charter into account in politics and construct the whole legal structure so that it takes into account the norms and principles of the Charter. As a whole, the Charter is undoubtedly an extremely important step towards the improvement of rights and freedoms and their alignment with the views and values of contemporary life.

1The author does not think that the shadow cast on the Charter’s initiative by the division of states into I and II class ones can be neglected. Topical discussions can be found from the working materials of developing the Charter. The dogmas and ideology of human rights thus far have been based on the idea of universality concerning human rights. The application of human rights does not allow the usage of double standards. The Charter applies certain corrections in this respect. The suggestion that one of the factors behind the Charter initiative is the unwillingness of EU states to have their rights, freedoms and democracy decided upon by Eastern European judges is not the authors invention. See example: Charter 7, March 2000.

Full article in Estonian