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The Road not Taken: The European Union as a Global Human Rights Actor

Published online by Cambridge University Press:  02 March 2017

Gráinne de Búrca
Gráinne de Búrca*
Affiliation:
Harvard Law School
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Extract

For many, the enactment of the European Union’s Treaty of Lisbon, with its range of significant human rights provisions, marks the EU’s coming of age as a human rights actor. The Lisbon Treaty inaugurated the legally binding character of the EU Charter of Fundamental Rights (EU Charter), enshrined a commitment to accede to the European Convention on Human Rights (ECHR), and, in Article 2 of the Treaty on European Union (TEU), identified human rights as a foundational value. These changes have already drawn comment as developments that “will change the face of the Union fundamentally,” that take the protection of rights in the EU “to a new level,” and that indicate that “the arguments for improving the status of human rights in EU law… have finally been heard. There is general agreement, in other words, that the EU has reached the high point of its engagement with human rights.

Type
Research Article
Information
American Journal of International Law , Volume 105 , Issue 4 , October 2011 , pp. 649 - 693
Copyright
Copyright © American Society of International Law 2011

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References

1 The Treaty of Lisbon, 2007 O J . (C 306) 1 [hereinafter Lisbon Treaty], whose provisions are largely based on those of the unratified Treaty Establishing a Constitution for Europe, 2004 O.J. (C 310) 1, entered into force on December 1, 2009. The Lisbon Treaty amended the Treaty on European Union (EU Treaty, now TEU) and the Treaty Establishing the European Community, while also changing the latter’s name to Treaty on the Functioning of the European Union (TFEU). The consolidated version of the two treaties, 2010 O.J. (C 83) 1, as well as all other major treaties defining the European Union, is available at http://eur-lex.europa.eu/en/treaties/index.htm.

2 Charter of Fundamental Rights of the European Union, Mar. 30, 2010, 2010 O.J. (C 83) 389.

3 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, ETS No. 5, 213 UNTS 221 [hereinafter ECHR].

4 See supra note 1.

5 Pernice, Ingolf, The Treaty of Lisbon and Fundamental Rights, in the Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? 235, 252 Google Scholar (Stefan Griller & Jacques Ziller eds., 2008). Pernice argues that “[tjaken seriously, all three pillars: the Charter as a binding instrument, the accession to the European Convention of Human Rights and the reference to the general principles of law as established by the ECJ, together will change the face of the Union fundamentally. “ Id.

6 Mathisen, Karoline L., The Impact of the Lisbon Treaty, in Particular Article6TEU, on MemberStates’Obligations with Respect to the Protection of Fundamental Rights 4 Google Scholar (University of Luxembourg Law Working Paper Series Paper No. 2010-01, 2010), at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1650544.

7 Leczykiewicz, Dorota, Effective Judicial Protection of Human Rights After Lisbon, 35 Eur. L. Rev. 326, 330 (2010)Google Scholar.

8 The term “Community,” when used on its own, will be taken to refer to the evolving framework that arose in the 1950s out of these three treaties. See infra notes 9 - 1 1 . The European Community formally ended and became the European Union with the enactment of the Lisbon Treaty.

9 The Treaty Establishing the European Coal and Steel Community [hereinafter ECSC], 261 UNTS 140, was signed April 18, 1951, and entered into force July 24, 1952.

10 The Treaty Establishing the European Economic Community, 298 UNTS 11, was signed March 25, 1957, and entered into force January 1, 1958.

11 The Treaty Establishing the European Atomic Energy Community, 298 UNTS 167, was signed March 25, 1957, and entered into force January 1, 1958.

12 For early accounts, see Dauses, Manfred A., The Protection of Fundamental Rights in the Community Legal Order, 10 Eur. L. Rev. 398 (1985)Google Scholar; Pescatore, Pierre, The Context and Significance of Fundamental Rights in the Law of the European Communities, 2 Hum. Rts. L.J. 295 (1981)Google Scholar; Scheuner, Ulrich, Fundamental Rights in European Community Law and in National Constitutional Law, 12 Commonmkt. L. Rev. 171 (1975)Google Scholar. For more recent treatments, see, for example, Rosas, Allan, Fundamental Rights in the EU, with Special Emphasis on the Case-Law of the European Court of Justice, in International Human Rights Monitoring Mechanisms: Essays in Honour of Jakob th. Möller 579 Google Scholar ( Alfredsson, Gudmundur, Grimheden, Jonas, Ramcharan, Bertrand G., & Zayas, Alfred eds., 2d ed. 2009)Google Scholar, Lenaerts, Koen & Eddy de, Smijter, A “Billof Rights’fortheEuropean Union, 38 Common Mkt. L. Rev. 273 (2001)Google Scholar, Jacobs, Francis G., Human Rights in the European Union: The Role of the Court of Justice, 26 Eur. L. Rev. 331 (2001)Google Scholar, and Besson, Samantha, TheEuropean Union and Human Rights: Towards a Post-national Human Rights Lnstitution, 6 Hum. Rts. L. Rev. 323 (2006)Google Scholar.

13 Jacobs, supra note 12, at 340 (noting that “the whole foundations [of the protection of fundamental rights at the EU level] were the work of the Court”); see also Tizzano, Antonio, The Role of the ECJ in the Protection of Fundamental Rights, in Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs 125, 125 (2008)Google Scholar (“[I]t is safe to say that the protection of fundamental rights is one of the fields of law where the intervention of the European Court of Justice has been most remarkable and far-reaching.”).

14 For a typical explanation see, for example, Tizzano, supra note 13, at 126 (“As is well known, the three founding Treaties made no provision for the protection of human rights as such. The reason lies probably in the fact that, at the time of their adoption, the economic integration undertaken by the six founding members of the Communities appeared a matter completely unrelated to that of fundamental rights. Such a reference might also have been considered unnecessary where all Member States had, a few years earlier, signed another pan-European instrument which specifically addressed the protection of fundamental rights: the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in 1950.”).

15 See Buergenthal, Thomas, The Normative and Institutional Evolution of International Human Rights, 19 Hum. Rts. Q. 703 (1997)Google Scholar. The narrative of the evolution of international human rights standards has long been one of steady, if incremental, progress. This conception is illustrated by what was, until very recently, the standard historical reference work in the field, Paul Gordon Lauren, The evolution OF International Human Rights: Visions Seen (2d ed. 2003). For a critique of Lauren’s “historical narrative of alinear evolution,” see Reza Afshari, On Historiography of Human Rights: Reflections on Paul Gordon Lauren’s The Evolution of International Human Rights: Visions Seen, 29 Hum. Rts Q. 1, 8 (2007). Many other examples of this evolutionary narrative could be cited. A consistent theme of much of the literature is that the human rights regime that exists today “would have been impossible to predict in the late 1940s.” Bates, Ed, History, in International Human Rights Law 17, 37 (Moeckli, Daniel, Shah, Sangeeta, & Sivakumaran, Sandesh eds., 2010)Google Scholar. Others describe the gradual evolution of procedures for protecting human rights beginning with the Universal Declaration of Human Rights and culminating five or six decades later. See, e.g., Weissbrodt, David et al., International Human Rights: Law, Policy, and Process 2 (4th ed. 2010)Google Scholar (“Gradually over [a half a century from 1948] the United Nations, other international organizations, regional institutions, and governments have also developed sophisticated and accessible procedures for protecting against and providing remedies for human rights abuses.”).

16 For an analysis of the progress narrative of international law, see Progress in International Law ( Miller, Russell A. & Bratspies, Rebecca M. eds., 2008 Google Scholar). On the move toward legalization of international relations and institutions, see Legalization and World Politics ( Goldstein, Judith, Kahler, Miles, Keohane, Robert O., & Anne-Marie, Slaughter eds., 2001 Google Scholar).

17 Ingolf Pernice, supra note 5, at 252, suggests that the “Charter. . . may even serve as a model for modern instruments designed to protect fundamental rights worldwide.”

18 Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 191).

19 For a sampling of the vast literature on the EU as a distinctive normative power, see Manners, Ian, Normative Power Europe: A Contradiction in Terms?, 40 J. Common Mkt. Stud. 235 (2002)Google Scholar; Sjursen, Helene, The EU as a Normative Power: How Can This Be?, 13 J. Eur. Pub. Pol’Y 235 (2006)Google Scholar; Who is a Normative Foreign Policy Actor? The European Union And its Global Partners (Nathalie Toed ed., 2008), available at http://www.ceps.eu/ceps/download/1490. For some official EU statements on its aspiration to include the promotion of human rights as a centerpiece of its international activities, see Advancing Human Rights Worldwide: The EU Leading by Example, EU FOCUS (Delegation of the European Commission to the United States, Washington, DC), May 2009, at 1, available at http://www.eurunion.org/News/eunewsletters/EUFocus/2009/EUFocus-HumRts-05-09.pdf; EU Commitment to Promoting Human Rights and Democracy, EU@UN (Delegation of the European Union to the United Nations, New York, NY), Dec. 10,2003, at http://www.europa-eu-un.org/articles/en/article_3104_ en.htm; The European Union and Human Rights: A Global Commitment, EU FOCUS (Delegation of the European Commission to the United States, Washington, DC), March 2006, at 1, available at http://www.eurunion. org/News/eunewsletters/EUFocus/2006/EUFocus-HumanRts.pdf; and The Enlarging European Union at the United Nations: Making Multilateralism Matter, EU@UN (Delegation of the European Commission to the United States, New York, NY), May 1, 2004, at http://www.europa-eu-un.org/articles/en/article_1008_en.htm.

20 For information about the history and founding of the European Movement, see http://www.europeanmove ment.eu/index.php?id=6024.

21 Altiero Spinelli was an extremely influential figure in the movement for European unity during and after World War II and is often referred to as one of the “founding fathers” of the European Union. He was one of the leaders of the European Federalist Movement and in 1941, together with Ernesto Rossi, published a manifesto for European unity, IIManifesto di Ventotene,per un’Europa libera e unita, at http://www.aItierospinelli.org/manifesto/en/manifestoen_it.html. He spent over ten years in prison due to his opposition to Mussolini’s fascist regime and was later interned during World War II. After the founding of the European Communities, he became a member of the European Commission and subsequently of the European Parliament.

22 For discussion of the significance of its composition, see Cohen, Antonin, Constitutionalism Without Constitution: Transnational Elites Between Political Mobilization and Legal Expertise in the Making of a Constitution for Europe (1940s-1960s), 32 Law & Soc. Inquiry 109, 120-22 (2007)Google Scholar.

23 For an early account of the drafting of the constitution for the European Political Community, see Karp, Basil, The Draft Constitution for a European Political Community, 8 Int’Lorg. 181, 183 (1954)Google Scholar, Robertson, A. H., The EuropeanPoliticalCommunity,1952 Brit. Y.B Int’l L. 383 Google Scholar, and Briggs, Herbert W., The ProposedEurop ean Political Community, 48 Ajil110 (1954)Google Scholar. A more recent, book-length treatment is Richard T. Griffiths, Europe’S First Constitution: The European Political Community 1952-54 (2005). See also Cohen, supra note 22, at 116-23.

24 For a discussion of this point, see Cohen, supra note 22, at 120-23; Preda, Daniela, The Debate over the European Constituent Assembly: A Story of Drafts, Desires and Disappointments, 45 Federalist 12 (2003)Google Scholar, available at http://www.thefederalist.eu/files/PDF/EN/2000/2003-l-EN.pdf.

25 See Mouvement Européeen, Projet de Statut de la Communaute Politique Europeenne: Travaux Preparatoires 18 (1952).

26 Id. at 24, 31-32.

27 Although five of the six member states had ratified the ECHR by 1955, France remained the awkward partner in this instance and did not ratify the Convention until 1974. For discussion of the significance of France’s ambivalence in this respect, see Madsen, Mikael, From Cold War Instrument to Supreme European Court: The European Court of Human Rights at the Crossroads of International and National Law and Politics, 32 Law & Soc. Inquiry 137, 145-46 (2007)Google Scholar.

28 Projet de Statut de la Communauté Politique Européenne, supra note 25, at 46.

29 Id. at 33.

30 The latter had not yet begun to function. See id. at 46 for the committee’s discussion of the relevant report of Henry Frenay, who had been chairman of the European Union of Federalists.

31 Id. at 125-27.

32 Id. at 207.

33 This language is from the First Resolution: Preamble and General Proposals A. The CECE’s resolutions, published in November 1952, are available in French and English at http://www.ena.lu/resolutions_comite_etudes _constitution_europeenne_bruxelles_novembre_1952-010002272.html.

34 See Treaty on European Union, supra note 18. Article 7 provided for a set of procedures whereby the European Council could ultimately suspend the voting rights of a member state if the council determined that the state in question was in serious and persistent breach of the values of respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights, including the rights of persons belonging to minorities.

35 See Cohen, supra note 22, at 116-25, on the relationship between U.S. fear of Soviet-led totalitarianism and its active support for, and funding of, a stronger version of European integration than that which emerged from the initial meetings of the Council of Europe.

36 On the fear of totalitarianism, see Karp, supra note 23, at 182 (“There was, following the war, a widespread feeling that French-German reconciliation was essential for peace, that a new approach was required to meet a deteriorated economic position, and—especially after the Czech coup of February 1948—that common defenses had to be erected against the Soviet threat.”).

37 The minorities regime consisted in a series of minorities treaties and peace treaties containing minority protection clauses, with the League of Nations being collectively empowered to guarantee those rights and protections, on receipt of a petition, through negotiation with the state in question. If the state concerned refused to compromise, the Council of the League of Nations could be seized of the matter and could take any action it “may deem proper and effective.” Minorities Treaty Between the Principal Allied and Associated Powers and Poland, June 28, 1919, Art. 12,225 Consol. T.S. 412. Perhaps unsurprisingly, the process never reached this stage, given the resistance of states to the activation of such an option. For discussion, see Frank Koszorus, The Forgotten Legacy of the League of Nations Minority Protection System, in Total War and Peacemaking: a Case Study on Trianon ( Kiraly, Bela K., Pastor, Peter, & Sanders, Ivan eds., 1982 Google Scholar).

38 The relevant parts of the Fourth Resolution on the Community Judicial Power set out principles, which provided:

  • 1.

    1. The juridical functions of the Community are performed by a Supreme Court and by other Courts estab-lished by law.

  • 2.

    2. The Supreme Court ensures that in the interpretation and application of the Statute and laws of the Com-munity the law is observed.

    It is at the same time a Constitutional Court and a Court of Appeal.

  • 3.

    3. Consequently it is competent:

    • (a)

      (a) in cases of conflict between the Statute and the laws or public acts of the Community;

    • (b)

      (b) in cases of conflict between the Statute and the laws or public acts of the Member States;

    • (c)

      (c) in cases of disputes between the Member States or disputes to which the Community is a party;

    • (d)

      (d) in cases of violations of diplomatic prerogatives or immunities;

    • (e)

      (e) it is finally competent in areas of civil, penal, and public law coming within the competence of the Community which are entrusted to it by law.

    The Community Parliament will regulate by law the right to take action before the Court.

    In cases (a) and (b), this right will be open to any injured citizen, Member State and Community organ or to a determined fraction of each of these.

    Resolutions adopted by the Study Committee for the European Constitution (Nov. 1952), at http://www.ena.lu/resolutions_adopted_study_committee_european_constitution_brussels_november_l 952-2-986.

39 TEU Article 19, supra note 1, provides that “the Court of Justice of the European Union . . . shall ensure that in the interpretation and application of the Treaties the law is observed.”

40 European Consultative Assembly, 4th Sess., Res. 14 (May 30, 1952) (concerning the most appropriate means of drafting the EPC Statute), at http://www.ena.lu/resolution_14_adopted_consultative_assembly_council_ europe_30_l 952-02-3443. The resolution proposed an assembly comprising either the members of the ECSC Assembly or the members of the Council of Europe Assembly, with the number of members (in the latter case) cor-responding to the number and allocation of seats in the future EDC Assembly.

41 See Statute of the Council of Europe, Arts. 1, 13-21, ETS No. 1, 87 UNTS 103.

42 Spaak himself had resigned in frustration as the first president of the Council of Europe’s Consultative Assembly in 1951 when the assembly rejected his proposal to hold a conference to establish a European political authority.

43 For discussion, see Karp, supra note 23, at 182 (“Debates in the Council [of Europe’s] Consultative Assembly at Strasbourg soon revealed that certain member countries—Belgium, France, West Germany, Italy, Luxembourg, the Netherlands—were prepared to move faster toward union than others, notably Britain. Only these six were then prepared to join a supranational Coal-Steel Community.”).

44 Article 38 of the EDC treaty provided for the ECSC Assembly to engage in further study to see what future EDC institutions might be established with a view to “safeguarding an appropriate representation of States . . . within a federal or confederal structure” and “ensuring co-ordination” of those institutions with other “agencies for European co-operation.” Treaty Instituting the European Defence Community, May 27, 1952, at http://www.ena.lu/treaty_instituting_european_defence_community_paris_27_1 952-2-793, available at http://aei.pitt.edu/5201/ (unofficial translation).

45 Apart from the secretary general of the Council of Europe, observers with the right to speak, but not to vote, were present from Denmark, Greece, Iceland, Ireland, Norway, Sweden, Turkey, and the United Kingdom. See Res. AA/CC (2) 5 (Oct. 23, 1952) (access of observer members), in Ad Hoc Assembly Instructed to Work Out a Draft Treaty Setting Up a European Political Community, in Draft Treaty Embodying the Statute of the European Community: Information and Official Documents of the Constitutional Committee, October 1952-APRIL 1953, Doc. No. 6 (n.d.), tfr http://aei.pitt.edu/991/l/political_union_draft_treaty_1 [hereinafter Information and Official Documents].

46 Karp, supra note 23, at 181.

47 In this way the drafting of the EPC treaty has been contrasted sharply with some of the other exercises at drafting a federal European constitution undertaken in the 1940s, which were, at the time, “scorned as nothing but aca-demic exercises on the part of wishful thinkers.” See Preda, supra note 24, at 12.

48 These four were the subcommittees on powers and competences, on political institutions, on judicial institutions, and on liaison with other states and international organizations.

49 Article 3 provides: “The provisions of Part I of the Convention for the Protection of Human Rights and Fun-damental Freedoms signed in Rome on 4th November 1950, together with those of the protocol signed in Paris on 20th March 1952, are an integral part of the present Statute.”

50 See Rapports de la sous-commission des institutions juridictionnelles, Doc. AH-162 (Nov. 21,1952-Feb. 17, 1953), Historical Archives of the European Union, European University Institute, Florence.

51 Id.

52 See ECHR Protocol No. 11, May 11, 1994, ETS No. 155, 33 ILM 943, 960 (1994), available at http://conventions.coe.int/treaty/en/treaties/html/155 .htm.

53 The relevant provisions of Article 45 of the Draft Treaty Embodying the Statute of the European Community provide:

  • 1.

    1. Any dispute arising from a decision or measure taken by one of the Institutions of the Community, which affects the rights recognized in the Convention for the Protection of Human Rights and Fundamental Free-doms, shall be referred to the Court.

  • 2.

    2. If an appeal is lodged with the Court under the conditions mentioned in the preceding paragraph by a nat-ural or legal person, such appeal shall be deemed to be lodged in accordance with the terms of Article 26 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

  • 3.

    3. After the establishment of the legal machinery for which provision is made in the Convention for the Protection of Human Rights and Fundamental Freedoms, should any dispute arise which involves a ques-tion of principle as to the interpretation or extent of the obligations resulting from the said Convention and which consequently affects all the Parties thereto, the Court shall renounce judgment, if necessary, until the question of principle has been settled by the judicial organs for which provision is made in the Convention

    Draft Treaty Embodying the Statute of the European Community, Art. 104 (Mar. 10, 1953), in Information and Official Documents, supra note 45, Doc. No. 10 [hereinafter draft EPC treaty].

54 For example, Max Becker, one of the German members of the Constitutional Committee, expressed his con-cern about the broad, imprecise definition of the Community Court’s jurisdiction over matters “‘interior’ to the Community”—between member states of the Community or between a member state and the Community, to which the ECHR was applicable. He took the view that this definition would impinge on the jurisdiction of the European Court of Human Rights. He considered it inappropriate to require a dispute concerning human rights between EPC member states to be submitted first to the Community Court—which he thought was properly the prerogative of the European Court of Human Rights. The Constitutional Committee, however, seemed to see the Community Court as a “domestic tribunal” for exhaustion of domestic remedies for the European Court of Human Rights, and envisaged that a dispute on which the Community Court ruled could be subsequently brought by another means before the European Court of Human Rights.

55 Draft EPC treaty, supra note 53, Art. 104 (“Member States may request the European Executive Council for assistance in maintaining constitutional order and democratic institutions within their territory. The European Executive Council, with the unanimous concurrence of the Council of National Ministers, shall lay down the conditions under which the Community shall be empowered to intervene on its own initiative. The relevant provisions shall take the form of a bill to be submitted to Parliament for approval within one year from the date of the coming into being of the Peoples’ Chamber. They shall be enacted as legislation of the Community.”).

56 Id.; see also Briggs, supra note 23, at 119-20.

57 See supra note 37.

58 It was also proposed that the Community, along with the individual member states, should be subject to the explicit requirement to respect human rights and fundamental freedoms, but such an obligation did not appear in these terms in the final text. In particular, the subcommittee on powers and competences of the Constitutional Committee of the Ad Hoc Assembly had proposed an article whereby the Community, as well as the member states, would guarantee to everyone within their jurisdiction the rights and freedoms in the ECHR. See Rapports de la sous-commission des attribution, Doc. AH-114 (Nov. 7,1952-Feb. 9,1953), Historical Archives of the European Union, European University Institute, Florence.

59 Information and Offical Documents, supra note 45, Doc. No. 11.

60 For a developed account, see Griffiths, supra note 23. See also Risso, Linda, The (Forgotten) European Political Community 1952-54 (London School of Economics Research Student Conference, July 2-3, 2004) Google Scholar, at http://www2.lse.ac.uk/internationalRelations/centresandunits/EFPU/EFPUconference.aspx.

61 See, for example, the exchange between members of the Ad Hoc Assembly’s Constitutional Committee and member state governmental representatives at the Intergovernmental Conference in October 1953. Extraits du compte rendu de la séance de la conférence pour la Communauté politique européene, tenue à Rome le 2 octobre 1953 en presence du Groupe de Travail de la Commission constitutionnelle, in Assemblée ad hoc Chargée d’élaborer un Project de Traitéinstituant une Communauté Politique Européenne, Informations et Documents Officiels de la Commission Constitutionelle, Doc. No. 10 (May 1953-Mar. 1955).

62 Analyse du rapport adopté le 8 Mars 1954 par la Commission pour la Communauté politique européene, sec. III(D), in id., Doc. No. 15, sec. III(D) [hereinafter Analyse du rapport].

63 See Karp, supra note 23, for a discussion of the Ad Hoc Assembly drafters’ dissatifaction with the amendments that the governmental committee and a separate committee of “technical experts,” specifically established to study the draft, proposed be made to the institutional and other provisions of the draft EPC treaty.

64 Analyse du rapport, supra note 62, sees. I, 11(D)

65 Id., sec. I (“l’exclusion d’un Etat Membre dont le systeme interne aurait subi des modifications essentielles”).

66 Note that the Assembly of the Council of Europe, when discussing the draft EPC treaty, had proposed amending this same provision so that only states that were already members of the Council of Europe could join, thereby locking in its institutional significance and its formal relationship with the new supranational communities. See European Consultative Assembly, Recommendation No. 45, Relating to the Draft Treaty Embodying the Statute of the European Community Adopted by the Ad Hoc Assembly, para, (a) (May 11,1953), at http://assembly. coe.int/Main.asp?link=/Documents/AdoptedText/ta53/EREC45.htrn.

67 For an account, see Preda, supra note 24.

68 See Dwan, Renata, Jean Monnet and the European Defence Community, 1950-54, 1 Cold War Hist. 141 (2000)Google Scholar, available at http://www.iiss.ee/files/7/IIS6008%20JM%20EDC.pdf.

69 See Weiler, J. H. H., Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Rights Within the Legal Order of the European Communities, 61 Wash. L. Rev. 1103, 1110-13 Google Scholar (1986;,- see also Tizzano, supra note 13; Andrew Williams, eu Human Rights Policies: a Study in Irony 137-39 (2004) (discussion of academic literature on this question).

70 See Statement of Foreign Minister Paul-Henri Spaak, EEC and CECA Treaty Negotiations, Rome, CM3/NEGO/098 (Mar. 25, 1957), at http://www.ena.lu/discours-paul-henri-spaak-occasion-signature-traites-rome-rome-25-mars-1957-010000644.html.

71 The aim of the resolution was to revive the process of European integration by focusing on economic inte-gration and the establishment of a common market. Resolution of the Ministers of Foreign Affairs of the ECSC in Messina, CM3/NEGO/006 (June 1-3, 1955), at http://www.ena.lu/resolution_adopted_foreign_ministers _ecsc_member_states_messina_june_1_955-2-987; see also Memorandum from the Benelux Countries to the Six Member States of the ECSC, CM3/NEGO/006 (May 18, 1955), at http://www.ena.lu/memorandum_benelux _countries_member_states_ecsc_18_1955-2-24378 (official French version).

72 Now simply known as the Spaak Report, it was formally entitled the Brussels Report on the General Common MarketznA adopted in June 1956. Intergovernmental Committee on European Integration, Brussels Report on the General Common Market (1956), at http://aei.pitt.edu/995/l/Spaak_report.pdf.

73 See Paul-Henri, Spaak, The Continuing Battle: Memoirs of a European, 1936 - l966 (Henry Fox trans., 1971)Google Scholar. The travaux préparatoires also make this strategy evident.

74 The express language of Article 3(1) of the EDC treaty (as translated into English), supra note 44, provides: “The Community shall accomplish the goals assigned to it by employing the least burdensome and most efficient methods. It shall intervene only to the extent necessary for the fulfillment of its mission and with due respect to public liberties and the fundamental rights of the individual.”

75 See Zuleeg, Manfred, FundamentalRights andthe Law ofthe European Communities, 8 Common Mkt. L. Rev. 446 (1971)Google Scholar (citing Ernst Wohlfarth, Ulrich Everling, Hans Joachim Glaesner, & Rudolf Sprung, Die Europäischen Wlrtschaftsgemeinschaft, Kommentar Zum V (I960)).

76 See supra note 69.

77 See, in particular, European Commission proposal on EC accession to the ECHR, EC Bull., Supp. No. 2, 1979. For a comment on this proposal, see Economides, Kim & Joseph H. H., Weiler, Accession of the Communities to the European Convention on Human Rights: Commission Memorandum, 42 Mod. L. Rev. 683 (1979)Google Scholar.

78 See Article 2 of the proposed treaty drawn up under the Fouchet Plan and presented at the Bonn Conference of 1961. Draft Treaty—Fouchet Plan I, Art. 2 (Nov. 2, 1961), at www.ena.lu/mce.swf?doc=999&lang=2.

79 Declaration by the Commission on the Occasion of the Achievement of the Customs Union on 1 July 1968, EC BULL., No. 7, 1968, at 5, 5-6 [hereinafter EC Declaration].

80 Report by the Foreign Ministers of the Member States on the Problems of Political Unification, EC Bull., No. 11, 1970, at 9, 10.

81 Case 1/58, Stork v. High Authority, 1959 ECR 17.

82 See supra note 74 and accompanying text.

83 Stork, para. 4.

84 Cases 36-38/59 & 40/59, Geitling v. High Authority, 1960 ECR 423.

85 Id. at 438.

86 Case 40/64, Sgarlata v. Comm’n, 1965 ECR 215, reprintedin 1966 Common Mkt. L.Rev. 314.

87 Note that the Court did not deny the existence in Community law of any general principles of law other than those written into the Treaty. See Case 35/67, Van Eick v. Commission, 1968 ECR 329,342, where the Court held that the Disciplinary Board, under the Community staff regulations, was bound to exercise its powers in accordance with “the fundamental principles of the law of procedure.” However, in contrast to Sgarlata, there was no question of these general principles overriding specific Treaty provisions.

88 Case 29/69, Stauder v. City of Ulm, 1969 ECR 419.

89 Case 11/70, Internationale Handelsgesellschaft v. Einfuhr- und Vorratstelle fur Getreide und Futtermittel, 1970 ECR 1125.

90 Case 4/73, Nold v. Comm’n, 1974 ECR 491.

91 For an excellent account of the Court of Justice’s role in the development of legal protection for fundamental rights in the EU, see Bruno de, Witte, The Past and Future Role of the European Court of Justice in the Protection of Human Rights, in The eu and Human Rights 859 (Philip Alston ed., 1999)Google Scholar.

92 Case 6/64, Flaminio Costa v. E.N.E.L., 1964 ECR 585.

93 See the report by Dehousse, Fernand, who was by then a Belgian member of the European Parliament. Report on the Supremacy of EC Law over National Law of the Member States, Eur. Parl. Doc. 43 (1965-66)Google Scholar, 1965 J.O. (2923) 14 [hereinafter Dehousse Report].

94 See Remarks of Hallstein, Walter, Eur. Parl. Deb. (79) 218-22 (June 17, 1965)Google Scholar (French ed.) (discussing Dehousse Report, supra note 93).

95 Notable earlier attempts to bring human rights-related issues within the remit of the new Communities include the Fouchet Plan and Bonn Conference of 1961, supra note 78, the 1968 commission declaration on completion of the customs union, supra note 79, and the Report by the Foreign Ministers of the Member States on the Problems of Political Unification, supra note 80.

96 For a sociological account of the invention of the “myth” of the human rights foundation of the European Communities, see Williams, supra note 69, at 137-62.

97 See Declaration on European Identity, EC Bull., No. 12, 1973, at 118, available at http://www.ena.lu/declaration_european_identity_copenhagen_l4_december_1973-020002278.html.

98 For an analysis of the symbolic significance of this move, see Williams, supra note 69, at 128-92.

99 Declaration on Democracy, Copenhagen European Council (Apr. 7-8,1978), EC Bull., No. 3,1978, at 5, available at http://aei.pitt.cdu/l440/l/Copenhagen_1978.pdf. This document may have been the first official, operational articulation of human rights and democracy conditions for accession to the European Community, but it was not the first attempt to articulate such conditions. Article 116 of the abandoned draft EPC treaty, supra note 53, had specified that “accession to the Community shall be open to the Member States of the Council of Europe and to any other European State which guarantees the protection of human rights and fundamental freedoms mentioned in Article 3.”

100 Joint Declaration on Fundamental Rights, 1977 O.J. (C 103) 1.

101 Among the institutional attempts to articulate an EC role in the area of human rights around this time and thereafter are the Final Communiqué of the Paris Summit, EC BULL., No. 12, 1974, at 7, available at http://www.ena.lu/final_communique_paris_summit_10_december_1974-020002285.html; Tindemans Report, EC Bull., Supp. No. l, 1976, at 9, available at http://aei.pitt.edu/942/l/politicaLtindemans_report.pdf; European Commission of Human Rights, Report Concerning the Application of Cyprus Against Turkey (Applications 6780/74 and 6850/75), reprinted in 4 EUR. HUM. RTS. REP. 482 (1976); Declaration on Democracy, supra note 99; DraftTreaty Establishing the European Union (Spinelli Draft), EC BULL., No. 2,1984, at 8, available at http://www.ena.lu; [Second] Report to the European Council, EC BULL., Supp. No. 7, 1985, at 18, available at http://aei.pitt.edu/992/l/andonnino_report_peoples_europe.pdf; Single European Act of 1986, Feb. 17 & 28, 1986, 1987 O.J. (L 169) 1, available at http://europa.eu/legislation_summaries/institutional_affairs/treaties/treaties_singleact_en.htm; Declaration on Fundamental Rights, 1989 O.J. (C 120) 51, available at http://www.europarl.europa.eu/charter/docs/pdf/a2_0003_89_en_en.pdf; and EC Commission, Community Charter of the Fundamental Social Rights of Workers, 1989 O.J. (C 323) 44, available at http://socialrights.net/community-charterof-fundamental-social-rights-of-workers/ [hereinafter Community Charter].

102 Community Charter, supra note 101.

103 Declaration on Fundamental Rights, supra note 101.

104 For a contemporary article that argued for the need for a proper human rights policy for the European Community, see Andrew Clapham, A Human Rights Policy for the European Community, 1990 Y.B. Eur. L. 309.

105 The preamble to the Single European Act, supra note 101, had mentioned human rights in the following terms: “Determined to work together to promote democracy on the basis of fundamental rights recognized in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms, and the European Social Charter, notably freedom, equality and social justice.”

106 Treaty of Amsterdam, Oct. 2, 1997, 1997 O.J. (C 340) 1.

107 TEU Article 49, supra note 1, provides: “Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union.” Article 2 provides: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.”

108 Article 13 (ex Article 6a) of the EC Treaty is now TFEU Article 19. On the drafting of Article 13, see Bell, Mark, Anti-Discrimination Law and the European Union (2002)Google Scholar.

109 See Treaty of Amsterdam, supra note 106.

110 See Treaty of Nice, Feb, 26, 2001, 2001 O.J. (C 80) 1, consolidated version reprintedin 2002 O.J. (C 325) 33.

111 See, e.g., Merlingen, Michael, Mudde, Cass, & Sedelmeier, Ulrich, The Right and the Righteous?: European Norms, Domestic Politics and the Sanctions Against Austria, 39 J. Common Mkt. Stud. 59 (2001)Google Scholar; Cécile, Leconte, The Fragility of the EU as a ‘Community of Values’: Lessons from the Haider Affair, 28 W. Eur. Pol. 620 (2005)Google Scholar.

112 Charter of Fundamental Rights of the European Union, 2000 O.J. (C 364) 1, available at http://www.europarl.europa.eu/charter/pdf/text_en.pdf.

113 For information on the drafting and attempted ratification of the Treaty Establishing a Constitution for Europe, see http://european-convention.eu.int/DraftTreaty.asp?lang=EN and http://www.consilium.europa.eu/cms3_applications/Applications/igc/doc_register.asp?content=DOC&lang=EN&cmsid=754.

114 The full text of the charter, which was originally adopted in 2000 and in slightly amended form in 2007 following the changes proposed in the unratified constitutional treaty and the subsequent Lisbon Treaty, can be found at 2007 O.J. (C 303) 1.

115 For information on the establishment and functioning of this network of experts, see http://cridho.cpdr. ucl.ac.be/en/eu_experts_network/.

116 The European Council approved the creation of this position in December 2004. Presidency Conclusions, Brussels European Council, para. 52 (Dec. 16-17,2004), a? http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/83201 .pdf.

117 Council Regulation (EC) No. 168/2007, Feb. 15,2007,2007 O.J. (L 53) 1 (establishing a European Union Agency for Fundamental Rights).

118 For a recent account, albeit before the enactment of the Lisbon Treaty, that questions whether the EU has evolved into a “human rights organization,” see Armin von, Bogdandy, The European Union as a Human Rights Organisation? Human Rights and the Core of the European Union, 37 Common Mkt. L. Rev. 1307 (2000)Google Scholar.

119 See, e.g., Bartels, Lorand, Human Rights Conditionality in the EU’s External Agreements (2005)Google Scholar; Fierro, Elena, the EU’s Approach to Human Rights Conditionality in Practice (2003)Google Scholar; see also Khaliq, Urfan, Ethical Dimensions of the Foreign Policy of the European Union: A Legal Appraisal (2009)Google Scholar.

120 For an early statement, see the council’s 2001 Annual Report on Human Rights, available at http://www.consilium.europa.eu/uedocs/cmsUpload/HR2001EN.pdf, and more recently its 2008 Annual Report on Human Rights, available at http://www.consilium.europa.eu/uedocs/cmsUpload/stl4146-re02.en08.pdf. See also European Council (Secretariat), Mainstreaming Human Rights Across CFSP and Other EU Policies, Doc. 10076/06 (June 7, 2006), available at http://register.consilium.europa.eu/pdf/en/06/stl0/stl0076.en06.pdf.

121 For discussion, see Olivier De, Schutter, The Promotion of Fundamental Rights by the Unionasa Contribution to the European Legal Space (I): Mutual Recognition and Mutual Trust in the Establishment of the Area of Freedom, Security and Justice (Reflexive Governance in the Public Interest Working Paper REFGOV-FR-2,2006) Google Scholar, at http://refgov.cpdr.ucl.ac.be/?go=publications&dc=f4d3720606c3fb7b34Bd9d56el7267cd8ee6805.

122 See, e.g., Case C-301/06, Ireland v. Council (Eur. Ct. Justice Feb. 10, 2009).

123 See, e.g., Case C-540/03, Parliament v. Council, 2006 ECR1-5769.

124 The case law in this field is now voluminous. See Panagiotis, Takis Tridimas, Terrorism andtheECJ: Empowerment and Democracy in the EC Legal Order, 34 Eur. L. Rev. 103 (2009)Google Scholar.

125 For a synthesis, see Craig, Paul & Gráinne de, Búrca, Human Rights in the EU, in EU Law: Text, Cases, and Materials, ch. 11 (5th ed., forthcoming 2011)Google Scholar.

126 For some of the collections of writing on the charter, see Special Issue: The EU Charter of Fundamental Rights, 8 Maastricht J. Eur. & Comp. L. 1 (2001); The Chartering of Europe: The European Charter of Fundamental Rights and its Constitutional Implications ( Erik, oddvar Eriksen, John, Erik Fossum, & Agustin, Ménendez eds., 2001); An Eu Charter of Fundamental Rights: Text and Commentaries (Feus, Kim ed., 2000); Eu Network of Independent Experts on Fundamental Rights, Commentary on the Charter of Fundamental Rights of the European Union Google Scholar (June 2006), at http://eceuropa. eu/justice/doc_centre/rights/charter/docs/network_commentary_final%20_180706.pdf; Justus, Schönlau, Drafting the Eu Charter: Rights, Legitimacy and Process (2005)Google Scholar. For some individual essays on the charter, see Sionaidh, Douglas Scott, The Charter of Fundamental Rights as a Constitutional Document, 2004 Eur. Hum. Rts. L. Rev. 37 Google Scholar; Goldsmith, Lord, 4 Charter of Rights, Freedoms and Principles, 38 Common Mkt. L. Rev. 1201 (2001)Google Scholar; Lenaerts & de Smijter, supra note 12; Francisco, Rubio Llorente, J4 Charter of Dubious Utility, 1 Int’L J. Const. L. 405 (2003)Google Scholar; Young, Alison L., The Charter, Constitution and Human Rights: Is This the Beginning or the End for Human Rights Protections by Community Law?, 11 Eur. Pub. L. 219 (2005)Google Scholar.

127 See, e.g., Kuhnert, Kathrin, Bosphorus—Double Standards in European Human Rights Protection?, 2 Utrecht L. Rev. 177 (2006)Google Scholar. For a more approving assessment, see Costello, Cathryn, The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe, 6 Hum. Rts. L. Rev. 87 (2006)Google Scholar; Besselink, Leonard, The EU and the European Convention of Human Rights After Lisbon: From ‘Bosphorus’ Sovereign Immunity to Full Scrutiny? Google Scholar, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 1132788; see also Greer, Steven & Williams, Andrew, Human Rights in the Council of Europe and the EU: Towards ‘Individual,’ ‘Constitutional’or ‘Institutional’Justice?, 15 Eur. L.J. 462 (2009)Google Scholar; Frederic van den, Berghe, The EU and Issues of Human Rights Protection: Same Solutions to More Acute Problems?, 16 Eur. L.J. 112 (2010)CrossRefGoogle Scholar.

128 Salignat, Claire, The Impact of the Emergence of the European Union as a Human Rights Actor on the Council of Europe, 2004 Baltic Y.B. Int’L L. 55 Google Scholar; Olivier, De Schutter, The Two Europes of Human Rights: The Emerging Division of Tasks Between the Council of Europe and the European Union in Promoting Human Rights in Europe, 14 Colum. J. Eur. L. 509 (2008)Google Scholar; Joris, Tony & Vandenberghe, Jan, The Council of Europe and the European Union: Natural Partners or Uneasy Bedfellows?, 15 Colum. J. Eur. L. 1 (2009)Google Scholar.

129 See, e.g., Merlingen et al., supra note 111; Williams, Andrew, The Indifferent Gesture: Article 7 TEU, the Fundamental Rights Agency and the UK’s Invasion of Iraq, 31 Eur. L. Rev. 3 (2006)Google Scholar; Sadurski, Wojciech Adding a Bite to a Bark: A Story of Article 7, the EU Enlargement, and Jörg Haider Google Scholar (Sydney Law School Research Paper No. 10/01), at http://ssrn.com/abstract= 1531393.

130 See Olivier De, Schutter & Valérie Van, Goethem, The Fundamental Rights Agency: Towards an Active Fundamental Rights Policy of the Union, 7 ERA Forum 587 (2006)Google Scholar; Armin von, Bogdandy & Jochen von, Bernstorff, The EU Fundamental Rights Agency in the European and International Human Rights Architecture, 46 Common Mkt. L. Rev. 1035 (2009)Google Scholar; Toggenburg, Gabriel, The Role of the New EU Fundamental Rights Agency: Debating the “Sex of Angels”or ImprovingEurope’s Human Rights Performance?, 33 Eur. L. Rev 385 (2008)Google Scholar; Arnull, Anthony, Does Europe Need a Fundamental Rights Agency?, 31 Eur. L. Rev. 285 (2007)Google Scholar. For a survey of human rights monitoring in the EU, see Monitoring Fundamental Rights in the Eu (Philip Alston & Olivier De Schutter eds., 2005).

131 See, e.g., Hinarejos, Alicia, Recent Human Rights Developments in the EU Courts: The Charter of Fundamental Rights , 7 Hum. Rts. L. Rev. 793 (2007)Google Scholar.

132 Complementing this provision, Article 55 of the draft EPC treaty, supra note 53, provided that the “Community may make proposals to the Member States with the object of attaining the general aims defined in Article 2.”

133 Article 41(1) of the draft EPC treaty, supra note 53, provided: “The Court shall in its own right take cognizance of disputes arising out of the application or interpretation of the present Statute or of a law of the Community, to which the parries are either Member States among themselves or one or more Member States and the Community.”

134 See, for example, the official EU statements and documents cited supra note 19.

135 See the sources cited supra notes 5—7, 12, 13.

136 See Severance, Kristi, France’s Expulsion of Roma Migrants: A Test Case for Europe (2010)Google Scholar, at http://www.migrationinformation.org/Feature/display.cfm?ID=803.

137 See Willis, Andrew, Hungary’s PM: EU Cannot Tell Us ‘What to Do’on Media Law, EU Observer, Jan. 6, 2011 Google Scholar, at http://euobserver.eom/9/31600.

138 For a discussion of the drafting of Article 51 of the charter, see Gráinne de, Búrca, The Drafting of the EU Charter of Fundamental Rights, 26 Eur. L. Rev. 214 (2001)Google Scholar. For more recent comment, see Rosas, Allan & Armati, Lorna, EU Constitutional Law: an Introduction 143-62 (2010)Google Scholar.

139 See Gráinne de, Búrca, Beyondthe Charter: How Enlargement Has Enlargedthe Human Rights Policy ofthe European Union, 27 Fordham Int’L L.J. 679 (2004)Google Scholar; see also Williams, supra note 69; Sadurski, supra note 129.

140 For a suggestion that some of the central and eastern European member states had to downgrade their protection for certain human rights in the wake of accession to the EU, see Albi, Anneli, Ironies in Human Rights Protection in the EU: Pre-accession Conditionality and Post-accession Conundrums, 15 Eur. L.J. 46 (2009)Google Scholar.

141 See supra note 110.

142 This suggestion was made in 2001 by the European Parliament in its resolution adopting the Report on the Situation as Regards Fundamental Rights in the European Union, Eur. Parl. Doc. 2000/2231 (INI), at http://www.europarl.europa.eu/omk/omnsapir.so/pv2?PRG=CALDOC&FILE=010705&LANGUE=EN&TPV= PROV&SDOCTA=l4&TXTLST=1&Type_Doc=FIRST&POS=1.

143 See http://cridho.cpdr.ucl.ac.be/en/eu_experts_network/.

144 The Council of Ministers did issue a document, however, to the effect that it may “seek the assistance of the Agency as an independent person if it finds it useful during a possible procedure under Article 7 TEU. The Agency will however not carry out systematic and permanent monitoring of Member State for the purposes of Article 7 TEU.” EU Press Release No. MEMO/07, European Union Agency for Fundamental Rights (Mar. 1, 2007), at http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/07/89.

145 Controversially, the mandate of the Fundamental Rights Agency was also restricted so that it had no role in relation to what was formerly the EU’s “third pillar”—that is, the areas of police and judicial cooperation in criminal matters— unless it was so requested by the EU or member states. Given the Lisbon Treaty’s integration of the third pillar, the Fundamental Rights Agency mandate may be extended to cover police and criminal cooperation, if indeed any formal extension is considered necessary after the “dissolution” of the third pillar. See Austrian Foreign Ministry, European Human Rights Agency (2011), at http://www.bmeia.gv.at/en/foreign-ministry/foreign-policy/humanrights/eu-human-rights-policy/fundamental-rights-agency.html. Finally, the agency’s role does not include examination of individual complaints, regulatory decision making, or member states’ compliance with EU treaties.

146 Council Regulation 168/2007, supra note 117

147 The ECJ uses the phrase “special significance’ in referring to the status of the ECHR. For a recent example see Joined Cases C-402/05 & C-415/05, Kadi v. Council, [2008] ECR 1-6351, at paragraph 283. For an argument that the ECHR should be understood as already formally binding on the EU, as a matter of EU law, even prior to EU accession to the ECHR, see Bruno de, Witte, The EU and the International Legal Order: The Case of Human Rights, in Beyond the Established Orders: Policy Interconnections Between the EU and the Rest of the World 127 Google Scholar (Malcolm Evans & Panos Koutrakos eds., 2011). Likewise, de Witte argues that the EU has made the Geneva Convention Relating to the Status of Refugees binding upon itself in the context of its own asylum policy via TFEU Article 78(1).

148 Accession has been made legally possible following the Lisbon Treaty’s enactment of TEU Article 6(2) to overcome the obstacle created by the Court of Justice in its Opinion 2/94 on EC Accession to the ECHR, 1996 ECR 1-01759, and following the ratification of Protocol 14 to the ECHR by all member states of the Council of Europe. Article 17 of Protocol 14 declares that the ECHR is to be amended to provide that the “European Union may accede to this Convention.”

149 See Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v. Ireland, 2005-VI Eur. Ct. H.R.

150 For a recent argument against the need for EU accession to the ECHR, see Jacobs, Francis G., The European Convention on Human Rights, the EU Charter of Fundamental Rights and the European Court of Justice: The Impact of European Union Accession to the European Convention on Human Rights, in the Future of the European Judicial System in a Comparative Perspective 291 Google Scholar ( Pemice, Ingolf, Kokott, Juliane, & Saunders, Cheryl eds., 2006) (Jacobs is a former ECJ advocate general). But see van den Berghe, supra note 127 Google Scholar.

151 For a recent pronouncement to this effect, see the Committee on Constitutional Affairs’ Draft Report on the Institutional Aspects of Accession of the European Union to the European Convention on Human Rights, Eur. Parl. DOC. 2009/2241 (INI), at http://www.europarl.europa.eu/activities/committees/draftReportsCom/com parlDossier.do?language=EN&dossier=AFCO/7/01808&body=AFCO:

[A] ccession will not in any way call into question the principle of the autonomy of the Union’s law, as the Court of Justice will remain the sole supreme court adjudicating on issues relating to EU law and the validity of the Union’s acts, as the Court of Human Rights must be regarded not as a superior authority but rather as a specialised court exercising external supervision over the Union’s compliance with obligations under international law arising from its accession to the ECHR . . . .

152 In Opinion 1/91 concerning the Agreement Creating the European Economic Area Agreement, 1991 ECR 1-6079, the ECJ did suggest that, where an international agreement establishes a court with jurisdiction to settle disputes between parties to the Agreement, die ECJ would be bound also by the decisions of that court. Some commentators have interpreted this opinion to imply that the ECJ will be bound by judgments of the European Court of Human Rights after the EU’s accession to the European Court of Human Rights. See Lock, Tobias, The ECJ and the ECtHR: The Future Relationship Between the Two European Courts, 8 L. & Prac. Int’L Cts. & Tribunals 375 (2009)Google Scholar. Others, however, including Allan Rosas, an ECJ judge, have cast doubt on whether the ECJ in Opinion 1/91 really intended this implication. See Rosas, Allan, The European Court of Justice in Context: Forms and Patterns of Judicial Dialogue, 1 Eur. J. Legal Stud. 1, 11-12 & nn. 43-44 (2007)Google Scholar.

153 On the interactions between the two courts, see Callewaert, Johan, The European Convention on Human Rights and European Union Law: A Long Way to Harmony, 6 Eur. Hum. Rts. L. Rev. 768 (2009)Google Scholar. See also the recent ECJ document on accession to the ECHR, infra note 154.

154 The ECJ itself is concerned about this prospect and has recently argued in a memorandum on the proposed accession to the ECHR that “a mechanism must be available which is capable of ensuring that the question of the validity of a Union act can be brought effectively before the Court of Justice before the European Court of Human Rights rules on the compatibility of that act with the Convention.” Discussion Document of the Court of Justice of the European Union on Certain Aspects of the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (May 5,2010), at http://www.ccbe.org/fileadmin/user_upload/document/Roundtable_2011_Luxembourg/Discussion_document_of_the_Court_of_Justice_of_ the_European_Union_on_certain_aspects_of_the_accession_of_the_European_Union_to_the_European_ Convention_for_the_Protection_of_Human_Rights_and_Fundamental_Freedoms_EN.pdf. A former ECJ judge has also warned sharply of the implications of the ECJ being bound too closely to follow the rulings of the European Court of Human Rights. See Murray, John L., The Influence of the European Convention on Fundamental Rights on Community Law, 33 Fordham Int’L L.J. 1388 (2010)Google Scholar.

155 See Bering, Jonas lAisbetg, Does the EU Charter of Fundamental Rights Threaten The Supremacy of Community Law? Article 53 of the Charter: A Fountain of Law or Just an Inkblot? (Jean Monnet Working Paper No. 4/01,2001) Google Scholar, at http://centers.law.nyu.edu/jeanmonnet/papers/01/010401.html (noting that “the drafting history . . . shows that several Member States strongly objected to any reference to the case law of the European Court of Human Rights in Article 53 or Article 52(3)”).

156 The subsequent explanation to Article 52(3) of the EU Charter, prepared by its legal secretariat following the adoption of the Lisbon Treaty and the revision of the original charter, refers to the European Court of Human Rights and its case law, and is given legal relevance by Article 52(7) (added post-Lisbon). See 2007 O.J. (C 303) 17, 33.

157 See Draft Report on the Institutional Aspects of Accession of the European Union to the European Convention on Human Rights, supra note 151, para. 9, which

[c] onsiders that it would be unwise to formalise relations between the Court of Justice and the European Court of Human Rights by establishing a preliminary ruling procedure before the latter or by creating a body or panel which would take decisions when one of the two courts intended to adopt an interpretation of die ECHR which differed from that adopted by the other; recalls in this context Declaration No 2 concerning Article 6(2) of the Treaty on European Union, which notes the existence of a regular dialogue between the Court of Justice and the European Court of Human Rights, which should be reinforced when the Union accedes to the ECHR.

158 Scheeck, Laurent, The Supranational Diplomacy of the European Courts: A Mutually Reinforcing Relationship?, in The ECJ Under Siege: New Constitutional Challenges for the ECJ 172, 193 (Martinico, Giuseppe & Fontanelli, Filippo eds., 2009)Google Scholar; see also Harpaz, Guy, The European Court of Justice and Its Relations with the European Court of Human Rights: The Quest for Enhanced Reliance, Coherence and Legitimacy, 46 Common Mkt. L. Rev. 105 (2009)Google Scholar.

159 See Kadi v. Council; see also Case T-85/09, Kadi v. Commission (Gen. Ct. Sept. 30,2010) (decision in Kadi’s follow-up challenge to commission’s decision to re-list him).

160 Joined Cases C-402/05 & C-415/05, para. 316.

161 Case C-465/07, Elgafaji v. Staatssecretaris van Justitie (Eur. Ct. Justice Feb. 17, 2009).

162 Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, 2004 O.J. (L 304) 12.

163 Elgafi, para. 28.

164 See, for example, de Witte, supra note 147 (especially section 3), who looks beyond the question of judicial relations to the way that EU human rights laws and policies are related to those of other regional and international systems. He concludes his essay by cautioning the EU against “moving to a splendid isolation in the human rights field.” Id. at 147.

165 See Olivier De, Schutter & Butler, Israel, Binding the EU to International Human Rights Law, 2008 Y.B. Eur. L. 277 Google Scholar.

166 Id. at 319.

167 After the protection of human rights, the second and third aims of die European Community listed in Article 2 of the draft EPC treaty, supra note 53, were “to co-operate with the other free nations in ensuring the security of Member States against all aggression” and “to ensure the co-ordination of the foreign policy of Member States in questions likely to involve the existence, the security or the prosperity of the Community.” It should be noted, however, that although the member state representatives at the 1953-54 Intergovernmental Conference on the EPC Treaty approved the draft treaty’s initial human rights clauses, including Articles 2 and 3 (the latter incorporating the ECHR into the draft EPC treaty), they deferred discussion of the international relations provisions of Chapter III. See Analyse du rapport, supra note 62, sec. III(B).

168 See Comité, des Sages, Leading by Example: A Human Rights Agenda for the European Union for the Year 2000: Agenda of the Comité des Sages and Final Project Report (1998), in The EU and Human Rights, supra note 91 Google Scholar.

169 This term is used in Williams, supra note 69, at 79-110.

170 See Frederic M., van den Berghe, The European Union and the Protection of Minorities: How Real Is the Alleged Double Standard?, 2003 Y.B. Eur. L. 155 Google Scholar; Guliyeva, Gulara, Lost in Transition: Russian-Speaking Non-citizens in Latvia and the Protection of Minority Rights in the European Union, 33 Eur. L. Rev. 843 (2008)Google Scholar; Double Standards Pertaining TO Minority Protection (Kristin Henrard ed., 2010),

171 Council of Europe Framework Convention for the Protection of National Minorities, opened for signature Feb. 1, 1995, ETSNo. 157.

172 See, e.g., Press Release, Dick Oosting, Director of Amnesty International EU Office, Amnesty Criticizes EU Double Standards on Human Rights: European Parliament Public Hearing (Apr. 24, 2003), at http://www.amnesty.eu/en/press-releases/all/amnesty-criticizes-eu-double-standards-on-human-rights-european-parliamentpublic-hearing-0114/. Oosting’s full presentation to the European Parliament is available at http://www.amnesty.eu/static/documents/Presentation_EP_Public_Hearing.doc (a link to which appears at the bottom of the preceding press release).

173 See also the listing on the EU’s Web site of those areas of internal EU policy that are considered to implicate human rights (or “fundamental rights,” in EU discourse), at http://europa.eu/legislation_summaries/human_ rights/fundamental_righ ts_within_european_unionZindex_en.htm.

174 Protection of the rights of the child is an interesting exception. It has been asserted as an objective of internal EU policy even though the EU has no other expressly enumerated competence in the field of children’s rights. The commission began in 2006 to identify protection of children’s rights as a major concern of the EU and thereafter published a paper, Towardsan ED’Strategyon theRightsof”theChild,Eur. Parl. Doc. COM (2006) 367 final (July 4,2006). On its Web site some years ago, the European Commission declared: “The EU Charter of Fundamental Rights provides a clear political mandate for action on children’s rights even if it does not establish any new powers or tasks for the Community.” For a reference to this quotation, see Save the Children’s report Governance Fit for Children (2011) at paragraph 2.2, at http://www.rb.se/SiteCollectionDocuments/Rapporter/Engelska%20 rapporter/Governance_fit_for_children_2011.pdf. For a criticism similar to that presented in the text—that is, concerning the EU’s unwillingness to accede to human rights treaties other than in policy areas specifically covered by EU competences, see De Schutter & Butler, supra note 165, at 304 (“Accession of the EU [to human rights treaties] should not be limited to treaties which have a direct overlap with areas of EU competence. Human rights obligations affect the exercise of all public power since it is through the exercise of their authority that states or other entities violate or uphold human rights. In this sense human rights cut across all areas of EU competence.”).

175 Council Directive 2000/43/EC of 29 June 2000 on Implementing the Principle of Equal Treatment Between Persons Irrespective of Racial or Ethnic Origin, 2000 O.J. (L 180) 22; Council Directive 2000/78/EC of 27 November 2000 on Establishing a General Framework for Equal Treatment in Employment and Occupation, 2000 O.J. (L 303) 16.

176 Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on Implementation of the Principle of Equal Opportunities and Equal Treatment of Men and Women in Matters of Employment and Occupation, 2006 O.J. (L204) 23 (recast); Council Directive 2004/113/EC of 13 December 2004 on Implementing the Principle of Equal Treatment Between Women and Men in the Access to and Supply of Goods and Services, 2004 O.J. (L 373) 40.

177 Council Framework Decision 2008/913/JHA of 28 November 2008 on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law, 2008 O.J. (L 328) 55.

178 Commission Proposal for a Council Directive on Implementing the Principle of Equal Treatment Between Persons Irrespective of Religion or Belief, Disability, Age or Sexual Orientation, COM (2008) 426 final (July 2, 2008).

179 See Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 O.J. (L 281) 31; European Union Agency for Fundamental Rights, Data Protection in the European Union: The Role of National Data Protection Authorities: Strengthening the Fundamental Rights Architecture in the EU II (2010), at http://fra.europa.eu/fraWebsite/attachments/Data-protection_en.pdf.

180 Daphne II Programme to Combat Violence Against Children, Young People and Women (EU), http://www.ispesl.it/dsl/dsl_repository/Sch22PDF08Marzo06/Sch22DaphneIIProgrtocombatviolenceagstchildren women.pdf.

181 Progress Programme (EU), http://ec.europa.eu/social/main.jsp?catId=327&langId=en.

182 See also Peers, Steve, EU Justice and Home Affairs Law, in The Evolution of EU Law 269 (Craig, Paul & Gráinne de, Búrca eds., 2d ed. 2011)Google Scholar; Valsamis Mltsilegas, EU Criminal Law (2009).

183 See, e.g., Pirjola, Jari, European Asylum Policy: Inclusions and Exclusions Under the Surface of Universal Human Rights Language, 11 Eur. J. Migration & L. 347 (2009)Google Scholar; Krieg, Sarah H., Trafficking in Human Beings: The EU Approach Between Border Control, Law Enforcement and Human Rights, 15 Eur. L.J. 775 (2009)Google Scholar.

184 See, e.g., Amnesty International, Human Rights Dissolving AT THE Borders? Counter-Terrorism and EU Criminal Law (2005), at http://www.amnesty.org/en/library/info/IOR61/013/2005/en; Catherine, Teitgen-Colly, The European Union and Asylum: An Illusion of Protection, 43 Common Mkt. L. Rev. 1503 (2006)Google Scholar. For a critique of the ECJ’s limited jurisdiction over justice and home affairs, along with its human rights implications, see Carruthers, Stephen, The Treaty of Lisbon and the Reformed Jurisdictional Powers of the European Court of Justice in the Field of Justice and Home Affairs, 6 Eur. Hum. Rts. L. Rev. 784 (2009)Google Scholar.

185 Protocol on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, 2007 O.J. (C 306) 156; Presidency Conclusions, Brussels European Council, Protocol on the Application of the Charter of Fundamental Rights of the European Union to the Czech Republic, Doc. 15265/1/09Revl. AnnexI(Dec. I,2009), at http://register.consilium.europa.eu/pdf/en/09/stl5/stl5265-re01.en09.pdf (to be annexed to the TEU when it is next amended).

186 See Commission Report on the Practical Operation of the Methodology for a Systematic and Rigorous Monitoring of Compliance with the Charter of Fundamental Rights, COM (2009) 205 final (Apr. 29, 2009), and its earlier communication, Compliance with the Charter of Fundamental Rights in Commission Legislative Proposals: Methodology for Systematic and Rigorous Monitoring, COM (2005) 172 final (Apr. 27,2005), together with the Report of 12 February 2007 on Compliance with the Charter of Fundamental Rights in the Commission’s Legislative Proposals: Methodology for Systematic and Rigorous Monitoring, which includes a proposed resolution for the European Parliament, Eur. Parl. DOC. A6-0034/2007 (2007). For a more recent discussion, see Commission Communication on a Strategy for the Effective Implementation of the Charter of Fundamental Rights by the European Union, COM (2010) 573 final (Oct. 19, 2010).

187 For an account of the EU human rights regime that is premised on the second, expansive vision of the role of human rights within the EU polity, see Olivier De, Schutter, Fundamental Rights and the Transformation of Governance in the European Union, in Human Rights in the Web of Governance: Towards A Learningbased Fundamental Rights policy for the European Union, at 1 (Olivier De, Schutter & Violeta, Moreno Lax eds., 2010)Google Scholar.

188 See Khaliq, supra note 119.

189 See id.

190 In 2010, citing human rights concerns, the EU suspended trade preferences with Sri Lanka. See also Orbie, Jan & Tortell, Lisa, The New GSP+ Beneficiaries: Ticking the Box or Truly Consistent with ILO Findings?, 14 Eur. Foreign Aff. Rev. 663 (2009)Google Scholar. For a more general analysis of the legality of the EU’s generalized system of preferences (which gives export preferences to developing countries), see Bartels, Lorand, The WTO Legality of the EU’s GSP+ Arrangement, 10 J. Int’L Econ. L. 869 (2007)Google Scholar.

191 For an appraisal, see Smith, Karen E., Speaking with One Voice? European Union Co-ordination on Human Rights Issues at the United Nations, 44 J. Common Mkt. Stud. 113 (2006)Google Scholar.

192 See Commission Communication, European Neighbourhood Policy Strategy Paper, COM (2004) 373 final (May 12, 2004).

193 See European Instrument for Democracy & Human Rights, http://ec.europa.eu/europeaid/how/finance/eidhr_en.htm.

194 For a summary of some of the criticisms, see Craig, Paul & Gráinne de, Búrca, EU Law: Text, Cases, and Materials 379-427 (4th ed. 2008)Google Scholar. For a powerful critical overview of the EU’s engagement with human rights, with particular emphasis on the bifurcation between external and internal policies, see Williams, supra note 69.

195 See Khaliq, supra note 119.

196 See, e.g., Gowan, Richard & Brantner, Franziska, European Council on Foreign Relations, A Global Force FOR Human Rights? AN Audit OF EU Power AT The UN (2008), at http://www.ecfr.eu/content/entry/the_european_union_at_the_united_nations Google Scholar; Gowan, Richard & Brantner, Franziska, European Council on Foreign Relations, The EU and Human Rights at the UN: 2009 review (2009), at http://ecfr.eu/content/entry/un_2009_annual_review_gowan_page [hereinafter EU and Human Rights AT THE UN]Google Scholar.

197 Amnesty International, The EU and Human Rights: Making The Impact on People Count (2009), at http://www.amnesty.org/en/library/info/IOR61/004/2009/en [hereinafter Making the Impact of People Count]; EU and Human Rights at the UN, supra note 196; see also Roth, Kenneth, Filling the Leadership Void: Where is the European Union?, in Human Rights Watch, World Report 2007, at http://www.hrw.org/legacy/wr2k7/ Google Scholar.

198 See Briand Memorandum of 1930,1 Documents on British Foreign Policy 1919 -1939, at 314 (2d ser. 1947).

199 Altiero Spinelli and Ernesto Rossi’s joint manifesto for European unity, // Manifesto di Ventotene, per un ‘Europa libera e unita, supra note 21, was published in 1941. For recent discussions of the relevance and influence of Spinelli’s ideas, see Pinder, John, Altiero Spinelli’s European Federal Odyssey, 42 The Int’L Spectator 571 (2007)Google Scholar, and Glencross, Andrew, Altiero Spinelli andthe Idea ofthe US Constitution as a Model for Europe: The Promises and Pitfalls of an Analogy, 47 J. Common Mkt. Stud. 287 (2009)Google Scholar. For a comparison between the Spinelli and Monnet approaches to European integration, see Burgess, Michael, Federalism and European Union: Political Ideas, Influences, and Strategies in the European Community 1972-1986, at 27-39 (1989)Google Scholar.

200 For his foundational collection of essays on the functionalist theory of international relations, see Mitrany, David, A Working Peace System (1966)Google Scholar. The essay with the same title as the collection was first published in 1943. It contained a critique of federalism and the constitutional approach to international order and argued, instead, for Mitrany’s functionalist approach.

201 Many of Monnet’s animating ideas and principles are to be found in his Memoirs (Richard Mayne trans., 1978). For a recent appraisal of his contribution, see Karine de, Souza Silva, Pedagogy of Peace: The Contribution of Jean Monnet to the Construction of the European Union (Jean Monnet/Robert Schuman Paper Series, Vol. 9, No. 5, 2009), at http://www6.miami.edu/eucenter/publications/Silva-MonnetLong09edi.pdf Google Scholar.

202 For discussion of the failure of the EDC treaty, see Dwan, supra note 68.

203 See supra note 72 and accompanying text.

204 See supra note 19.

205 Id.

206 Making the Impact on People Count, supra note 97.

207 See Severance, Kristi, France’S Expulsion of Roma Migrants: A Test Case for Europe (Migration Policy Institute 2010), at http://www.migrationinformation.org/Feature/display.cfmJID = 803 Google Scholar.

208 Making the Impact on People Count, supra note 97.

209 Id. For a previous critique of the EU’s lack of leadership on human rights matters globally, see Roth, supra note 197.

210 See A Global Force for Human Rights?, supra note 196, at l; The EU and Human Rights at the UN, supra note 196; Roth, supra note 197.

211 See Dennison, Susi & Dworkin, Anthony, Policy Brief: Towards AN EU Human Rights Strategy FOR A Post-Western World (2010)Google Scholar; see also A Global Force for Human Rights?, supra note 196.

212 Smith, Karen E., The European Union at the Human Rights Council: Speaking with One Voice but Having Little Influence, 17 J. Eur. Pub. Pol’Y 224 (2010)Google Scholar.

213 “Masters of the Treaties” (Herren der Verträge) is the iconic term that was used by the BundesVerfassungs-Gericht in its famous Maastricht judgment of October 12, 1993, to describe the member states’ ongoing control over the EU constitutional process—and specifically over the process of treaty amendment. Decision Concerning the Maastricht’Treaty, Oct. 12, 1993, 89 BVerfGE 155 (190).

214 Moravcsik, Andrew, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 Int’L Org. 217 (2002)Google Scholar. For a full account of the origins of the ECHR and of Britain’s role in its creation, including the suggestion that the ECHR was intended, in part, as a gesture against Communism during the Cold War, see Brian Simpson, A. W., Human Rights and the End of Empire: Britain and the Genesis of the European Convention (2001)Google Scholar.

215 Moravcsik, supra note 214, at 246.

216 See Karp, supra note 23.

217 See, e.g., first CECE resolution, supra note 33, para. 7; draft EPC treaty, supra note 53, Art. 104.

218 See supra note 65 and accompanying text (referring to the proposed inclusion of an expulsion clause for a member state whose internal system had undergone “fundamental change”).

219 Although Moravcsik points out, supra note 214, at 233,235, that support for European integration did not correlate with support for an enforceable human rights regime (in the context of the ECHR), even states that opposed mandatory enforcement of the ECHR, such as Luxembourg and the Netherlands, seem to have supported robust human rights enforcement by the new supranational European Community.

220 See supra notes 109-11, 140-43, and accompanying text.

221 See supra notes 144-45.

222 The term “showcasing” was used to explain the reason for drafting the EU Charter of Fundamental Rights. See Comments by Member Companies of the European Study Group, Draft Charter of Fundamental Rights of the European Union (June 30, 2000), at http://www.europarl.europa.eu/charter/civil/pdf/con260_en.pdf; Andy McSmith & George Jones, Rights Charter ‘May Form Constitution for EU Superstate,’ Daily Telegraph, Aug. 1, 2000, at http://www.telegraph.co.uk/news/worldnews/europe/1366967/Rights-charter-may-form-constitutionfor-EU-superstate.html; see also McCrudden, Christopher, The Future of the EU Charter of Fundamental Rights 10 n.29 (Jean Monnet Working Paper 10/01, 2001) Google Scholar, at http://centers.law.nyu.edu/ieanmonnet/papers/01/013001.html.

223 For a similar argument in relation to the UN Security Council’s establishment of minimal due process for imposing targeted sanctions on individuals, see Cora, True-Frost, Signaling Credibility: The Development of Individual Standing in International Security, Cardozo L. Rev.Google Scholar (forthcoming), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 1490701.

224 See supra notes 206-12; see also European Parliament Resolution on the Development of the UN Human Rights Council Including the Role of the EU, para. 56, Eur. Parl. Doc. P6-TA0021 (2009), at http://www.europarl.europa.eu/meetdocs/2009_2014/documents/droi/dv/p6_ta(2009)0021_/p6_ta(2009)0021_en.pdf; Smith, supra note 212.

225 See him. Bradford, & Posner, Eric A., Universal Exceptionalism in International Law, 52 Harv. Int’L L.J. 1 (2011)Google Scholar. On the EU’s particular brand of exceptionalism, see Magdalena, Liĉková, European Exceptionalism in International Law, 19 Eur. J. Int’L L. 463 (2008)Google Scholar.

226 See supra note 19.

227 Anecdotal support for this proposition can be drawn from recent comments by prominent political actors. As noted in a recent news article, Finnish Foreign Minister Alexander Stubb has argued that the EU should pursue a “dignified” foreign policy and needs to attend to the double-standard critique: “To encourage others to follow our lead on human rights (or, for that matter, on free trade), we have to live up to our own standards.” Stubb, Alexander, Adopting a Dignified Foreign Policy, Eur. Voice, Sept. 23, 2010 Google Scholar, available at http://www.europeanvoice.com/article/imported/adopting-a-dignified-foreign-policy/68986.aspx. Israeli Foreign Minister Avigdor Lieberman was quoted as stating that Europe should “fix its own problems before focusing on the middle East.” Israeli FM Lieberman: Europe Should Fix Itself First, BBC NEWS, Oct. 11,2010, at http://www.bbc.co.uk/news/world-middleeast-11514275.

228 See, e.g., de Búrca, supra note 139.

229 On the European Commission’s Web site on Employment, Social Affairs and Equal Opportunities, http://ec.europa.eu/social/home.jsp?langld=en, see the Web page Diversity & C Non-Discrimination, http://ec.europa.eu/social/main.jsp?catId=7978dangId=en, and the report on progress in gender equality, http://ec.europa.eu/social/BlobServlet?docId=65628dangId=en.

230 For an overview, see the Fundamental Rights Agency’s Web page Networking in Focus, http://fra.europa.eu/fraWebsite/networks/networks_en.htm.

231 Sabel, Charles F. & Gerstenberg, Oliver H., Constitutionalising an Overlapping Consensus: The EC] and the Emergence of a Coordinate Constitutional Order, 16 Eur. L.J. 511 (2010)Google Scholar. On the possibility that EU practices could be monitored by international human rights organizations and treaty bodies even when the EU is not a party to the treaty in question, see De Schutter & Butler, supra note 165.

232 See supra note 186 and accompanying text. 692

233 Articles 51-54 of the European Charter explain its scope of application and the general principles applicable to its interpretation.

234 For a recent account, see De Schutter, supra note 187.

235 See supra note 210 and accompanying text.

236 See supra notes 206-09 and accompanying text.

237 See supra note 212 and accompanying text.

238 See supra note 227 and accompanying text.