Promoting justice after lisbon: Groundwork for a new philosophy of EU law

Oxford Journal of Legal Studies

Volumn 30, Issue 4, 2010, Pages 663-693

  Williams, Andrew T ^a  

^a UNIVERSITY OF WARWICK   (United Kingdom)

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[No Author keywords available]

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EID: 78649840838     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqq017     Document Type: Article

References (90)

1. AT Williams, 'Taking Values Seriously: Towards a Philosophy of EU Law' (2009) 29 OJLS 549-77.
2. I use parentheses around 'more' throughout this article on the understanding that the EU might or might not already qualify as a 'just' institution. My claims do not depend on an evaluation one way or another.
3. J Rawls, Political Liberalism (Columbia UP, New York 2005) 16.
4. I am of course suggesting here that the impact of the EU through its institutions is self-evident, a claim that I do not think is particularly controversial.
5. D Miller, National Responsibility and Global Justice (OUP, Oxford 2007) 12-13.
6. T Nagel, 'The Problem of Global Justice' (2005) 33 P&PA 113-47, 119.
7. Simon Roberts has also argued strongly against 'law' (and thus substantive notions of justice pursued through law) losing its 'secure grounding' that has been 'historically associated with the state'.
8. S Roberts, 'After Government? On Representing Law without the State' (2005) 68 MLR 1-24, 24.
9. Nagel (n 7) 144.
10. J Raz, 'The Rule of Law and its Virtue' in Robert L Cunningham (ed), Liberty and the Rule of Law (Texas A&M UP, College Station 1979) 3-21, 4.
11. st Century (United Nations Development Programme/OUP, Oxford 1999) 366-81, 375.
12. Raz (n 12) 7-12.
13. TRS Allan, 'The Rule of Law as the Rule of Reason' (1999) 115 LQR 221-44.
14. The application of human rights to organisations such as the World Trade Organisation, which I would define as more a coordinated than cooperative inter-state venture, offers an interesting extension of this argument. See, in particular, the debate between P Alston and E-U Petersmann conducted in the EJIL in 2002.
15. So, for instance, a military cooperative venture, such as NATO, might seek to make an exception to the normal constraints applied in municipal systems regarding the right to life etc. Even then, we might expect to consider the application of international humanitarian law standards that possessed both human rights and justice-related qualities.
16. There would no doubt be arguments on a wide range of rights that might be deemed essential for any cooperative venture. Claims for economic, social and cultural rights would be accompanied by questions on the fundamental necessity for some claims of political rights through democratic systems.
17. There is strong philosophical support for this claim in the works of John Rawls, Jürgen Habermas and numerous others.
18. See, for instance, C Harlow, 'Global Administrative Law: the Quest for Principles and Values' (2006) 17 EJIL 187-214.
19. T Tridimas has charted the scope of these principles and referred to them explicitly as associated with rule of law norms.
20. See The General Principles of EU Law (2nd edn, OUP, Oxford 2006).
21. H Friese and P Wagner, 'The Nascent Political Philosophy of the European Polity' (2002) 10 J Pol Phil 342-64, 354.
22. T Pogge, 'Cosmopolitanism and Sovereignty' (1992) 103 Ethics 48-75, 49.
23. O O'Neill, 'Agents of Justice' in A Kuper (ed), Global Responsibilities (Routledge, London 2005) 37-52.
24. J Cohen and C Sabel, 'Extra Rempublicam Nulla Justitia?' (2006) 34 P&PA 147-75.
25. For a consideration of the need to move from 'site' to 'scope' of justice see A Abizadeh, 'Cooperation, Pervasive Impact, and Coercion: On the Scope (not Site) of Distributive Justice' (2007) 35 P&PA 318-58.
26. The global economic crisis of 2008 onwards has provided a dramatic example.
27. CR Beitz, Political Theory and International Relations (Princeton UP, Princeton 1979) 128.
28. Nagel (n 7) 147.
29. C Offe, 'The Democratic Welfare State in an Integrating Europe' in M T Greven and L Pauly (eds), Democracy Beyond the State? The European Dilemma and the Emerging Modern Order (Rowman and Littlefield, Lanham MD 2000) 63-89.
30. J Habermas, The Postnational Constellation: Political Essays (Polity Press, Cambridge 2000) 102.
31. Bauman highlights the emptiness of the claim that the test of loyalty should be about the sacrifice of one's life as applied, derogatorily, to the EU and its personnel.
32. See Z Bauman, Europe: An Unfinished Adventure (Polity Press, Cambridge 2004) 133-4.
33. C Beitz, 'International Liberalism and Distributive Justice: A Survey of Recent Thought' (1999) 51 World Politics 269-96, 271.
34. R Bellamy and D Castiglione, 'Legitimizing the Euro-"Polity" and its "Regime"; the Normative Turn in EU Studies' (2003) 2 European J Pol Theory 7-34.
35. In parallel, it would also cross the divide between national and international law.
36. Cohesion policy represents an example of this dimension.
37. This might be described as a recognised ethical responsibility to care about the 'third party' in Levinas' terms.
38. See E Levinas, Otherwise than Being or Beyond Essence (Duquesne UP, Pittsburgh 1998).
39. See AT Williams, The Ethos of Europe (CUP, Cambridge 2010).
40. Williams (n 1).
41. Re the Accession of the Community to the European Human Rights Convention (Opinion 2/94) [1996] 2 CMLR 265 [27].
42. It is enhanced as a proposition when we see that the Treaty incorporates Second and Third Pillar matters into the judicial review capabilities of the ECJ. Articles 263 and 267 TEU (as amended) will enable national courts to refer matters to the ECJ including those conducted in relation to the Third Pillar issues of criminal justice, immigration etc. The legal discrimination wrought by the distinct pillars structure will be addressed enabling potentially greater consistency of value-application.
43. For a review of this particular issue, see A Hinarejos, 'The Lisbon Treaty Versus Standing Still: A View from the Third Pillar' (2009) 5 EuConst 99-116.
44. See International Commission of Jurists (ICJ), Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (26 January 1997) accessed 29 March 2010.
45. For a brief commentary see, for instance, S Fredman, Human Rights Transformed (OUP, Oxford 2008).
46. R Huseby, 'Duties and Responsibilities to the Poor' (2008) 14 Res Publica 1-18.
47. See Declaration on the Rights and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, UNGA Res 53/144 (8 March 1999).
48. See, for instance, the comment in H Steiner, P Alston and R Goodman, International Human Rights in Context (3rd edn OUP, Oxford 2007) 185-9.
49. This is the conclusion of my previous article. See Williams (n 1) 576-7.
50. See Williams (n 1) for an analysis of this condition.
51. Rawls (n 3) 57.
52. We can see the same dichotomy played out with the EU Charter of Fundamental Rights on the one hand (primarily a document for internal consumption although some attempt to apply it to the external has been made, albeit unsuccessfully) and the European Initiative for Democracy and Human Rights on the other, a project designed by the Commission for 'third countries'.
53. Bellamy and Castiglione suggest 'freedom' as an overarching aim. See R Bellamy and D Castiglione (n 36).
54. Weiler also advocates for tolerance in 'In Defence of the Status Quo: Europe's Constitutional Sonderweg' in JHH Weiler and M Wind (eds), European Constitutionalism Beyond the State (CUP, Cambridge 2003) 7-23.
55. Conjoined cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council [2008] ECR I-6351 [303].
56. For some support for this contention see the Eurobarometer results for Spring 2008 where peace, human rights and respect for human life were the three most significant values preferred.
57. See results at accessed 1 March 2010.
58. Williams (n 40).
59. Again, this has been touted within the discourse of 'global administrative law'. See Harlow (n 20).
60. In political philosophy those voices promoting human rights as a core moral theme abound.
61. For two recent works, see A Buchanan, Justice, Legitimacy, and Self-Determination (OUP, Oxford 2004).
62. Miller (n 6).
63. Indeed, for my claims to succeed this would be essential given the command in Article 6(1) TEU as revised that the Charter 'shall not extend in any way the competences of the Union as defined in the Treaties'.
64. T Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reform (Polity Press, Cambridge 2002) 65.
65. Miller (n 6).
66. Key conventions would include the Universal Declaration on Human Rights; the International Conventions on Civil and Political Rights and on Economic Social and Cultural Rights; the UN Convention for the Elimination of Discrimination Against Women; the UN Convention for the Elimination of Racial Discrimination; the UN Convention Against Torture; the UN Declaration on the Right to Development; and the UN Convention on the Rights of the Child. The last of these may be seen to have developed particular resonance given the EU's recent interest in promoting child rights in the EU as a whole.
67. See, for instance, the Council of Europe's Framework Convention for the Protection of National Minorities.
68. The various conventions and charters that exist under the auspices of the Council of Europe are already generally accepted as applicable by all Member States. It would be sensible therefore for these to be enshrined in the EU along with the ECHR. Much of the institutional rhetoric of the EU that relates to human rights happily acknowledges the authority of these and other international instruments. A good example appears in relation to child rights where the Commission acknowledged in its 2006 strategy document that '[c]hildren's rights form part of the human rights that the EU and the Member States are bound to respect under international and European treaties, in particular the [UN Convention on the Rights of the Child] and its Optional Protocols'. See Commission (EC), 'Towards an EU strategy on the rights of the child' (Communication) COM (2006) 367 final, 4 July 2006.
69. The decision in Case 4/73 Nold v Commission [1974] ECR 491 determined that 'international treaties for the protection of human rights on which Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law.'.
70. Williams (n 40).
71. It is of course an enduring critique that the ECJ's approach to fundamental rights has been determined by the overarching need to construct a functioning internal market.
72. See Article 3 Treaty on the Functioning of European Union which lists those policy areas where exclusive or shared competence has been conferred on the EU.
73. The Commission's 2008 Report on Poverty and Exclusion in Rural Areas provides evidence of levels of people at risk of consistent poverty in these locations that are 'significant' throughout the EU.
74. This is the formula adopted by the Maastricht Guidelines (n 44) 4.
75. Pogge (n 23) 52.
76. In both development and foreign policies the EU scrutinises and applies sanctions in relation to third party state failure vis-à-vis human rights.
77. In particular, the new demand to promote values would suggest that the mandate of the EU's Fundamental Rights Agency would need to be revisited. At present its restricted remit prevents it from adopting a method of scrutiny that would enable its work to be used as the basis for any EU institutional response to human rights problems in a particular state.
78. Limburg Principles on the Implementation of the UN Convention on Economic Social and Cultural Rights, UN doc E/CN.4/1987/17, Annex.
79. EEC Treaty, Preamble, para 5.
80. This economistic form of justice is a standing critique of Allott, for one.
81. See P Allott, The Health of Nations: Society and Law Beyond the State (CUP, Cambridge 2002).
82. See F Barca, 'An Agenda for a Reformed Cohesion Policy' (April 2009) accessed 29 March 2010.
83. The report nonetheless still feels the need to rely on an economic justification for reform, which reinforces the current institutional ethos that I am suggesting can be redirected with a human rights based notion of justice more to the fore.
84. Beitz (n 35).
85. See, for instance, M Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (Harvard UP, Cambridge, Mass 2007) 309.
86. See Miller (n 6) for a convincing account of the varying degrees of responsibility in issue.
87. See (n 41) above.
88. The injunction not to be involved in an unjust institution is a starting point for this latter issue but it is insufficient if we are looking for ways in which the responsibility for human rights I propose for the EU is to be discharged. The obligation may well expand to review corporations located within the EU as well. At the very least it would suggest that where Member States exercise authority through law over corporations registered in their domain, they should institute processes for reviewing the behaviour of corporations wherever they operate. The EU's responsibility could then be to oversee and coordinate the nature of these national processes to ensure that differing legal systems throughout the Union were not exploited by corporations to reduce their commitment to human rights.
89. Miller (n 6), 267.
90. Nagel (n 7) 147.