A Weak and Defective Charter?

If the right are worried that the EU’s Charter of Fundamental Rights will override the Irish Constitution (it won’t), the left are worried that the charter won’t go far enough. The Campaign Against the European Constitution’s criticism of the Charter is much on this line. They also look at the Charter’s relationship with the European Convention on Human Rights.

This post is a rebuttal of their main points. But before I begin, I’d like to emphasise the pointlessness of voting no to the Lisbon Treaty for things that won’t change, regardless of the result of the referendum. A rejection of the Treaty because it doesn't contain X or Y right, would be a pyrrhic one. Not only will you not achieve those rights, you would probably be further away from getting them than ever.

> “The charter proclaims social rights such as rights to health care and education. Yet it also states that it “does not establish any new power or task for the union”. Thus the status quo in Ireland – such as our two-tiered health care – would not be affected by this charter.”

This is quite true. The inclusion of these rights in the Charter is intended (as I’ve argued before) to ensure that the EU can’t deprive us of them.  They are not included to give the EU the legal duty or power to put them into effect. I don’t think most people would support handing over responsibility over health and education to the EU. I wouldn’t. I don’t even think CAEUS would either, if they truly thought over the consequences. If we want to get rid of our two-tiered health system we’ll have to do it ourselves!

> “[The Charter] is weak and flawed in its own provisions, being a step back from parts of the UN Universal Declaration of Human Rights (particularly Art 23 protecting a person’s right to work) and, for example, the French constitution. It dilutes the fundamental right to work, and in so doing, undermines the case for social security payments when the state fails to provide employment.”

The right to work isn’t mentioned in the treaties at the moment so it’s difficult to see how it could be diluted by Lisbon. Moreover, the Declaration of Human Rights was never intended to be a legal document — that’s why is called a declaration — but was intended to be followed by a binding treaty. This came in the form of two treaties: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Article 6 of the latter covenant refers to the:

“[R]ight of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.”

This is hardly as huge step away from the Charter which says:

“Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.”

> “[The Charter] includes no means for ensuring its own implementation or for monitoring the progress of implementation nor procedures to punish breaches of its provisions.”

The Charter is not a conventional human rights treaty like the two covenants mentioned above. It does have a mechanism to ensure compliance by the signatory states, because it is, for the most part, not intended to apply to them. In the areas in which it does apply — EU law and national implementing acts — the decisions of the European Court of Justice are binding.

> “[The Charter] provides no redress or counterbalance to the primacy of competition and the market in the EU treaties.”

Actually, the Charter contains a catalogue of social rights including the right to work, to fair working conditions, to collective bargaining, to strike and against unfair dismissal. Account will have to be taken of these rights when implementing EU policies such as the freedom to provide services.

> “[T]here is no requirement for trade unions to be recognised as in Art 23 of the Universal Declaration of Human Rights, which states that ‘everyone has the right to form and to join trade unions for the protection of his interests.’”

I’ve already pointed out the non-legal nature of the Declaration of Human Rights, but it hardly matters. How the Campaign Against the European Constitution get from the right to join trade unions, to the requirement to recognise trade unions is beyond me. The Declaration doesn’t mention any such requirement, as is evident from CAEUS’s own quotation. Incidentally the last clause of Article 12 of the EU’s Charter, which recognises the right to join trade unions, is based on the very portion of the Universal Declaration that CAEUS quote. Article 12 of the Charter says that:

“Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.”

> “Many of [the Charter’s] provisions only apply ‘in accordance with EU and national laws and practices.’ This means it is only to be used in relation to EU law, and discriminatory national laws could remain.”

Why does the proverbial glass always appear to be half empty? Some right may be only protected in accordance with national laws and practice, but if nothing else the Charter has a strong prohibition on discrimination. Article 21 of the Charter bans:

“Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.”

> “It is possible that the ECJ through its rulings on the charter may undermine the ECHR. The ECHR makes its rulings based on the European Convention on Human Rights — which deals with human rights alone — unlike the EU treaties on which the ECJ makes rulings.”

(For those of you who might be a bit confused: The ECJ or European Court of Justice, is the EU's top court. The ECHR or European Court of Human Rights is not part of the EU. It oversees the European Convention on Human Rights upon which the EU's Charter of Fundamental Rights is largely based.)

Giving the ECJ an explicit human rights jurisdiction, does obviously create a risk that the ECJ would come to overshadow and consequently undermine the European Court of Human Rights. In order to avoid this, the Lisbon Treaty permits, in fact requires, the EU to ratify the European Convention on Human Rights. That court’s decisions will not be legally binding on the EU — no more than they are on Ireland — but the implication of ratification is that the EU, and its courts, will ultimately be expected to follow the ECHR’s human rights decisions.

The other possible cause of overshadowing the ECHR would have been the creation of a European Supreme with the jurisdiction to review the validity of all national laws. The creation of such a court would have essentially made the ECJ and not the ECHR the final venue for human rights cases. Limiting the scope of the EU’s new rights charter to EU law, avoids the creation of such a supreme court and confirms the ECHR as the paramount body for human rights protection in Europe.