Human Rights in the European Union - Essay Example

Topic: EU Human Rights Name: Subject: Law Course: Institution: Tutor: Date Due: Introduction The European Court of Justice (ECJ) was started with reference to the European Coal and Steel Community (ECSC) Treaty in 1952. The court is located in Luxembourg. The provision in Article 19 TEU states that the function of the European Court of Justice (ECJ) is to guarantee the observation of the law when interpreting and applying the Treaties. The ECJ is responsible of ensuring that all EU States apply the EU legislation and comprise similar interpretation and application, for uniformity of the law everyone. The court ensures that state courts give similar rulings on the similar issue. The ECJ also ensures that Member States and institutions in the EU adhere to the law. The ECJ is authorized to settle legal disputes involving EU Member States, EU institutions, businesses, and individuals. The European Union maintains that the current duty it has on human rights are based on the EU legal order. The European Union implements the human rights acts and the European Convention. EU is an international organization governed by international law entailing the treaties involving the human rights treaties which the member states entered via the rule of succession or substitution1. The applicable human rights were broadened the beyond the ECHR human rights to other duties, for example UN human rights treaties. The EU must adhere to human rights and protect and fulfill human rights. The political hardships faced by the EU were being approved by forty-seven signatories to the Convention and of the EU member states and institutions which had to address the requirements of two different legal orders. European Union law feels that the major barrier to incorporation of the EU into the Convention of mechanisms for external supervision is the sovereignty of the EU legal order. Therefore the contribution of the EU is devoted to the intricacies faced by the negotiators, and potentially by the ECJ, in this respect basing on the newest version of the accession agreement written by the unofficial working group. It critically analyzes the draft basing on the sovereignty of the Legal Order of the EU and comments on the possibility of the workability of the solutions2. Human rights in the European Union  The Legal framework No human rights clauses were contained in the European Economic Community (EEC) Treaty, in later treaties human rights standards have gradually been elaborated upon making the human rights the cornerstone of the European Union. The protection of human rights as one of the guiding principles of the Union’s foreign policy efforts was established by the Lisbon Treaty. (Article 21(1)3 The enforcement of the Lisbon Treaty led to the integration of the Charter of essential Rights of the European Union into European primary law (Article 6(1)4 of the Consolidated Treaty). The Charter is legally binding (except for those Member States with an opt-out for this provision). The Charter outlines various rights for European citizens. The human rights are divided into six sections which are: dignity, freedoms, equality, solidarity, right of citizens and justice, with regard to the essential rights and freedoms documented by the ECHR, legal society and other worldwide instruments. The Charter ensures that Union law agrees with the ECHR, which the EU has acceded under the Treaty of Lisbon5.  The sovereignty of the EU Legal Order In Opinion 1/00 the ECJ recognized two external aspects of sovereignty: Preservation of the sovereignty of the Community legal order requires therefore, first, that the essential powers of the Community and its institutions as conceived in the Treaty remain untouched. Second, the ECAA Agreement for resolving disputes will not bind the Community and its institutions, in exercising their internal powers, to a particular interpretation of Community rules in the agreement. The treaties must not be interpreted by the international court since it is a requirement that the dealings which guarantee uniform interpretation of the rules in a manner that is internally acceptable are followed6. With regard to the Opinions that are given, the verge for this is low as it suffices when an international court is biased in the interpretation of the Treaties. Article 48 TEU7 must be revised by the EU and Member States to ensure that right procedure are followed to ensure that an international agreement exists between the third parties. The Kadi the Court interpreted this to show that t an international agreement cannot be biased in the implementation of the fundamental rights and other constitutional principles of the Treaties. This conclusion was an additional complication to the ECJ’s jurisprudence on the EU sovereignty of the external legal order. In the main EU law an agreement must handle constitutional principles and fundamental rights, which were protected and handled as unwritten general principles of the EU law during the Kadi without hiding amendments to the Treaties including fundamental rights. Constitutionally the sovereignty of EU law is of great importance in its external and internal guise. The external sovereignty of the EU legal order is independent in that the rules of another legal order, for instance international law do not affect it. Therefore, EU law is self-referential. It ensures that the Treaties are openly amended and the amendment procedures in Article 48 TEU are strictly followed. The amendments to be done on the Treaty are those provided for by the EU Law. The EU guarantees its own institutions, most notably the Court of Justice in the interpretations that determine the substance of the internal rules and prohibit an outside body to do so. The evidence of the relevance has been shown in the Court’s recent Opinion 1/09258 on the stated Agreement between the European and Community Patents Court, which was declared by the ECJ as a contrast to the Treaties when he ECJ distinguished the agreement basing on its own opinions. The jurisdiction to interpret the provisions of an international agreement and interpretation of the EU law would not have been given to the Patents Court since the Court had previously considered it as a contrast to the sovereignty of EU law. Even though the ECJ was involved, the patent Court felt that the involvement of the ECJ was insufficient although they were closely similar to the procedure found in Article 267 TFEU9. The argument was mainly based on the consequences that would be faced by the courts of the Member States since under the Patent Agreement, the courts of the member states would have been denied of their jurisdiction to make a decision on disputes about EU patents10. The Patent agreement contemplated for the replacement of their jurisdiction by a special jurisdiction of the Patents Court on measures for patents exiting the national courts with outstanding jurisdiction in these matters. The ECJ argued that this would also deny them the powers of interpreting and applying the EU law and will give the Patents Court the right, and in its presentation as an appeal court, the duty, to first refer to the ECJ. It was concluded by the ECJ concluded that the guarantees for its own involvement were not sufficient. The problem was identified by the ECJ as impossible to ask the ECJ for reference on the enforcement of the duty. Whenever a state court contradicts itself and violates its duty to refer to the ECJ, the two probable remedies to this are: the Commission or another Member State will initiate breach proceedings under Articles 258 and 260 TFEU11 and, an individual to suggest a state liability case against the Member State. The Patents Court would have been assigned jurisdiction to interpret European Union legislation and primary law, the Court saw the denial of the national courts as an intimidation to the sovereignty of EU law as it would result in the deprivation of the ECJ of its jurisdiction, too. This judgment adds a fresh aspect to the ECJ’s case law about the sovereignty of the EU legal order. The Court regards the EU’s own institutions to be protected from the effected of EU agreements and institutions of the Member States which are assigned obligations under EU law. The sovereignty of the EU legal order thus penetrates the national legal orders and in part incorporates them12. The background for the following discussion is can be found in the preceding analysis. It is clear that agreements which protect the jurisdiction of a court outside the EU legal system may probably differ with the sovereignty of EU law. The draft accession agreement is mainly apprehensive with the procedure before the ECtHR, and the sovereignty of EU law. This has been forecasted by the Lisbon Treaty, stated in Protocol 8 that the accession treaty ‘shall make provision for maintenance of the specific characteristics of the Union and Union law’, which refers to the maintenance of the sovereignty of EU law. The remainder of this contribution will consequently evaluate the ability of the provisions of the draft accession treaty to overcome the hurdle of compatibility with the sovereignty of EU law and if there will be need for additional security. Devotion to International Treaties In order to comply with human rights one must adhere to international treaties. States alone could be involved in major worldwide and local treaties but was been debated on the European Union agreement to European Convention of Human Rights (ECHR) and protection of Fundamental Freedoms. The agreement enables persons to dispute laws and orders in the European Court of Human Rights. The European Community was recommended by European Commission in 1979, to accept the ECHR and allow the European institutions to take control of the Convention. In 1994, the ministerial Council requested the Court of Justice to give a report concerning the accession compatibility of the EC to the ECHR with the Maastricht Treaty. The circumstances have changed dramatically; on 13 May 2004 Protocol No. 1413 of European Convention was followed by the Ministerial Committee of the Council of Europe. The protocol is an amendment of Article 5914 of the Convention which requires that Article 17 should include a new paragraph 2: which states that “The European Union may agree to the Convention.” Article 615 in the Lisbon Treaty stipulates that “The Union shall agree with the European Convention about Human Rights Protection and essential Freedoms”. The EU signed the Convention on Rights of Persons with Disabilities (CRPD). This development was seen as a noble idea which would set an important model on the norms that bind international organizations on human right16. Considering other international human rights treaties, twenty seven member states belong to six UN human rights Conventions which are; (ICCPR, ICESC, CEDAW, CAT, CERD and CRC). All states are members of the ECHR, the ESC and the ECPT, while none of the EU country is a member of the CMW and several have not ratified the CRPD. Important Issues in the European Union The EU has significantly increased its focus on support of human rights. Eradication of the death penalty and torture prevention were given major attention in the 1980s, the focus to individual countries. Annual Report of the EU concerning Human Rights for 2008 addresses 20 important issues. The Community is embracing mutual accomplishment of the activities by provision of funds required in running various programs, for example in availing of specific information to the community. Some of the issues and measures taken by institutional are discussed below17. Death penalty The EU opposes the death penalty under all conditions. It feels that eradication of the death sentence enhances human dignity and improvement of human rights. This aims at respect for the intrinsic human dignity and the purity of human beings. The Union undertakes systematic action about obliteration of its affairs with third world countries. The policies of the EU about third countries in relation to the death penalty are the area of action of the European Union. The EU strategies provide criteria for demarches and outline lowest principles applicable in states that have retained the death penalty. The EU emphasized on introduction of moratoria to eradicate the death penalty18. In 2008, the review of the procedures was done to allow for the consideration of the progress incurred in the ten years after drafting. The EU will represent: a)cases where the death penalty applied is below the UN minimum standards (for example execution of a pregnant women and new mothers, mentally sick persons, and persons aged under 18 years at the time of the commitment of the crime); and b) conditions where a government’s policy on the death penalty is unstable (for example when the state is bearing in mind lifting a moratorium, or de facto moratorium, on the employment of the death penalty or where the death penalty is to be reestablished via legislation). Non-discrimination (racism) Racism is of key concern within the European Union. The EU has implemented several measures contained in Article 2119 Charter of Nice about immigration anti-discrimination clause as globalization has led to more people moving from one place to another, foreigners and problems faced by the minorities has made numerous Member States to adopt discriminatory policies. Amsterdam Treaty gives the European Community new principles in for handling discrimination. The Racial Equality Directive (2000/43/EC)20 prohibits racial and ethnic discrimination in employment, education, social security, healthcare, admittance to goods and services, and housing; the directive also prohibits harassment and victimization. The directive gives a judicial or administrative system where discriminated victims report their complaint; appropriate penalties are set for the discriminators and gives proof on the respondent in civil and administrative cases. The Directive also provides for the establishment in each Member State of an organization to promote same treatment (inter alia, via the explanation of sovereign reports and recommendations) and offers sovereign assistance to racial discrimination victims. It recognizes that implementation measures must support equality between women and men. The Employment Equality Directive (2000/78/EC) gives the code of equivalent treatment in places of employment and training regardless of religion, disability, age and sexual orientation and several orders to fight discrimination have been adopted, e.g., Directive 2006/54/EC and Directive 2004/113/EC21 which demand the equal treatment of men and women in employment and the entrée to and supply of goods and services, respectively22. The European Commission has proposed a new equality directive to accomplishment same treatment between persons. Several Communities action programs to combat discrimination support the EU’s equality legislation, whose aim is to improve the appreciation of discrimination issues, develop the ability to effectively handle discrimination and to fight against discrimination in the EU. Torture The EU holds its leadership role and worldwide action to fight torture and other forms of mistreatment and initiatives in international fora, mutual démarches to third countries and substantial support for projects by civil society organizations23. One constituent of the Union’s actions against torture was the attempt to push for the approval of the Optional procedure to the UN Convention against Torture, used by the UNGA in 2002. Supplementary actions are mutual statements and co-sponsoring of tenacity against torture. European Instrument for Democracy and Human Rights (EIDHR) provides funds for rehabilitation of torture victims and worldwide torture prevention. Terrorism As a repercussion of the terrorist attacks on 11 September 2001, the European Council, addressed terrorism and approved the ‘Action Plan to fight terrorism’. The EU made a co-ordinate, rational and universal approach in all policies to eradicate terrorism. The EU approved a Decision on fight terrorism (2002/475/JHA)24, a European Union general List of Terrorists, and verdict on the European arrest warrant and the surrender dealings connecting Member States (2002/584/ JHA)25. The attacks by terrorist in Madrid and London made the EU to redouble the anti-terror efforts26. The EU launched the European Counter-Terrorism Strategy in November 2005. The Strategy holds member states responsible of prevention of terrorism with the EU acting as a facilitator. There are four pillars of fighting terrorism, this are; prevent, protect, trail and react. The European Council has reserved the status of a counter terrorism coordinator whose function is to provide guidance to the Council’s strategy in fighting terrorism and, maintain an overview of the mechanisms in the Union by regularly reporting to the Council and effectively following-up the decisions made by the Council. Human rights and essential freedoms must be respected during the execution of anti-terrorist policies since it is an essential principle, where no European Union decision can modify the obligation to respect essential rights and legal principles. Elections and Democracy EU supports free elections and has laid strategies to support democratization in third countries. Democracy is shown where the EU allows free expression of people political will, through hidden and equal vote in a general, fair, open and participatory election process27. The EU participates in electoral assistance projects in over 60 countries, through provision of the necessary support to national election management bodies together with post-conflict contexts for example Chad, Sierra Leone and Haiti. Refuge and migration The different refugee dealings between the Member States and the escalating number of refugees and migrants have led to harmonization of national legislation on refuge and migration issues. The agreement on the Council Directive offer lowest values for the welcoming of a refugee (2003/9/ EC), Council Regulation (EC 343/2003)28 gives the classification and mechanisms use in determining the responsibility of Member State in the examination of a refuge application lodged in the Member States by Part VI. Human Rights Actors for third-country citizens and EC directive on the right of third county citizens was recognized in the EU to help in family reliance (2003/86/EC)29. These papers display the mounting fashion towards harmonized refuge policies in the EU. Sadly, some Member States have not completely implemented the directives and some provisions have been criticized for their excessive restriction. The European Parliament felt that the provisions of the Family Reunification Directive were opposing the fundamental rights; particularly the right for family life respect and the right to non-discrimination, therefore, the European parliament brought before the court of justice an action for termination (case C-540/03)30. In 2006 the Court issued its judgment and held that the directive cannot be seen as opposing essential right to respect for family life, to consider children or the principle of non-discrimination of age. The UNHCR has raised considerable concerns on EU refugee system’s results for persons looking for international security in the EU and other states which are participants. These concerns include the system’s impact on the legal rights and personal wellbeing of refugees, their rights to a fair claim assessment and efficient protection, plus the irregular distribution of refuge claims amongst Member States.  The European Union and international human rights International Protection and Promotion of Human Rights The EU and its Member States employ human right in a variety of international protection and promotion activities depending on the given state of affairs. Protection of human rights comprises of response to violation of human rights; plus shared and individual initiatives to stop and address them. The positive measures strengthen institutions and dealings that protect human rights, and develop international requirements and supervisory mechanisms31. There are numerous types of activities done by EU and Member States in addressing these issues, for example, writing country reports, demarche presentation and declaration publishing. Habitual consultations and dialogues, plus human rights clauses for trade and co-operation agreements with third countries, are procedures that promote human rights. The clauses specify respect of fundamental human rights and democratic principles emphasize the internal and external policies of the member states and give crucial elements of the agreement. If the third countries were unable to respect human rights and trade concessions they were suspended and development collaboration programs curtailed. The Cotonou Agreement includes a state of the art account of the “essential elements” clause, with a new process to address the breach of the essential elements, inter alia. Related provisions are found in other EU development co-operation programs. The European Union has put economic sanctions on countries which have violated human rights, such as Serbia, Burma (Myanmar) and Zimbabwe. The Case Law of the European Court of Justice Most socio-economic rights that were incorporated into the Charter of Fundamental Rights of the European Union (EU) are recognized by the European Court of Justice (ECJ). The workings of the single market, in the history of the European Community (EC), the negative aspects of this market had not been addressed through legislation. The ECJ through its case law had formed the “theory of social rights, which give the meaning of the restrictions of European economic integration more than the suggestion made by the enforced EC legislation.” This section discusses the case law which expresses the authoritative role played by the ECJ in molding the human rights in the EU, which displays key implications for the prospect of economic, social and cultural rights plus the conception of the indivisibility and interdependence of human rights. Protection of human rights for the individual will be achieved by setting up of standards to protect these rights which was first emphasized by the ECJ as the first EU body. The ECJ has a bigger responsibility in the discussion of the agenda on the community socio-economic rights32. Several cases have been ruled by the ECJ regarding the social policy provision for the EU Member States on the freedom of movement. All EU Member States compensate medical expenses incurred in another Member State as long as prior authorization is given for foreign medical treatment or if the treatment is urgent. There are two cases, Decker and Kohll,33 which were seen as exceptional to the court rule. In the Decker case, a Luxembourg citizen who had bought a pair of spectacles in Belgium was denied reimbursement for the spectacles because he purchased the spectacles without prior authorization from his illness fund. Kohll as a Luxembourg citizen was concerned because daughter was denied treatment by a German orthodontist who said that the same treatment could be done in Luxembourg, and added that the treatment was not urgent. Such barriers are normally imposed in order to protect the financial equilibrium of the social security systems. In cases discussed above the Court felt that the two cases were not a dangerous to the national social security systems, this facilitated the prevalence of the principle of freedom of movement. The ECJ was also of great importance in description of the EU citizenship before it was mentioned in the EC Treaty. The ECJ was able to accomplish this through has extension of the nationality principle of non-discrimination, which original intension was to protect workers and offer freedom in service delivery. ECJ has allowed the principle to cover the benefits of social security regarding freedom of movement for service recipients. This extension was first done in the case of Ian William Cowan v. Tresor Public34. Mr. Cowan was a British citizen, who was attacked while leaving a metro station in Paris. Mr. Cowan’s trip to France was not to deliver services additionally his attackers were not identified; therefore, he was not entitled for compensation of his physical injury. The Court ruled that Foreign Service recipients are free to receive similar treatment as the citizens of the Member State. The ECJ has extended “sphere of beneficiaries to include other EC nationals, additionally the ECJ has broadened the field of national social rights to non-EC nationals, and thus it has gone beyond European citizenship. This refers to migrant workers from States that have agreed to the association with the European Community, at this juncture, the ECJ has extended the extent of the agreements. In the case of Henia Babahenini v. Belgium35, the wife of a retired Algerian worker was deprived of a disability grant in Belgium, on the grounds that the wife was not a migrant worker. The Court rules that the members of the family of the migrant worker were included in the agreement between the Community and Algeria (George, 2006)36. The examples of the ECJ’s case law discussed above show the role played by ECJ as a social activist. Socio-economic rights incorporated in the Charter of Fundamental Rights of the EU are recognized in the case law of the ECJ. In Article 52 (2)37 of the Charter it is stipulated that rights based on EC Treaties or the TEU must adhere to the conditions and limits written in those Treaties. Thus, the Charter has no mandate to increase or reduce the extent of those rights. The Charter is determined to ensure that the public knows the rights that are reputable in the ECJ case law in order to accomplish its prime duty of making the EU citizens in exercising their rights. Conclusion This contribution shows that the accession of the EU to the ECHR raises fundamental questions of constitutional significance. The task of drafting an accession agreement which would get a green light from the ECJ requires a difficult balancing act between the task of preserving the sovereignty of the EU legal order and practical and political demands, which might conflict with it. The introduction of the co-respondent mechanism helps in avoiding such conflict. However, the risk is that this mechanism is becoming so complex that well intended solutions create new problems in this respect. The prior involvement of the ECJ, which in the eyes of this author is not required by the sovereignty of the EU’s legal order, is a case in point. It is essential for the drafters to know that the overall aim of the accession is to improve the fundamental rights protection for individuals. This implies that any solution found must not render this protection too difficult to obtain. There is a danger that a political compromise might obstruct a legally clear solution, which would allow for an effective and speedy protection of individual fundamental rights38. The sovereignty of the community legal system and special status of the Court of justice must be designed for integration of the European Union to the European Convention on Human Rights system. The court of justice of the European community is the final authority; this is contained in Article 220 of the European Community Treaty (ex Article 164). The addressing of fundamental human rights extends the aptitude of the community as ideas of human rights on the entire values which have been looked at in Europe, regarding the European Convention about Human Rights and the commencement of the European Court of Human Rights as a sovereign international administrative body. The European Convention on Human Rights and Community law protects the fundamental human rights. Thus the attainment of the European Union was incorporated into a legal order familiar to its nature of the human rights which recognizes the international monitoring system applicable to all its member States. 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