The road not taken: The European Union as a global human rights actor

American Journal of International Law

Volumn 105, Issue 4, 2011, Pages 649-693

  De Burca, Grdinne ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

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EID: 84455189225     PISSN: 00029300     EISSN: None     Source Type: Journal    
DOI: 10.5305/amerjintelaw.105.4.0649     Document Type: Article

References (290)

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.
2. 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).
3. 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.
4. Charter of Fundamental Rights of the European Union, Mar. 30, 2010, 2010 O.J. (C 83) 389.
5. European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, ETS No. 5, 213 UNTS 221 [hereinafter ECHR].
6. Ingolf Pernice, The Treaty of Lisbon and Fundamental Rights, in THE LISBON TREATY: EU CONSTITUTIONALISM WITHOUT A CONSTITUTIONAL TREATY? 235, 252 (Stefan Griller & Jacques Ziller eds., 2008).
7. Pernice argues that "[t]aken 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."
8. Karoline L. Mathisen, The Impact of the Lisbon Treaty, in Particular Article 6 TEU, on Member States'Obligations with Respect to the Protection of Fundamental Rights 4 (University of Luxembourg Law Working Paper Series Paper No. 2010-01, 2010), at http://papers.ssrn.com/sol3/papers.cfm?abstract-id= 1650544.
9. Dorota Leczykiewicz, Effective Judicial Protection of Human Rights After Lisbon, 35 EUR. L. REV. 326, 330 (2010).
10. 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.
11. See infra notes 9-11. The European Community formally ended and became the European Union with the enactment of the Lisbon Treaty.
12. 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.
13. The Treaty Establishing the European Economic Community, 298 UNTS 11, was signed March 25, 1957, and entered into force January 1, 1958.
14. The Treaty Establishing the European Atomic Energy Community, 298 UNTS 167, was signed March 25, 1957, and entered into force January 1, 1958.
15. For early accounts, see Manfred A. Dauses, The Protection of Fundamental Rights in the Community Legal Order, 10 EUR. L. REV. 398 (1985);
16. Pierre Pescatore, The Context and Significance of Fundamental Rights in the Law of the European Communities, 2 HUM. RTS. LJ. 295 (1981);
17. Ulrich Scheuner, Fundamental Rights in European Community Law and in National Constitutional Law, 12 COMMON MKT. L. REV. 171 (1975).
18. For more recent treatments, see, for example, Allan Rosas, 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. MOLLER 579 (Gudmundur Alfredsson, Jonas Grimheden, Bertrand G. Ramcharan, & Alfred Zayas eds., 2d ed. 2009),
19. Koen Lenaerts & Eddy de Smijter, A "Bill of Rights" for the European Union, 38 COMMON MKT. L. REV. 273 (2001)
20. Francis G. Jacobs, Human Rights in the European Union: The Role of the Court of Justice, 26 EUR. L. REV. 331 (2001)
21. And Samantha Besson, The European Union and Human Rights: Towards a Post-national Human Rights Institution, 6 HUM. RTS. L. REV. 323 (2006).
22. See also Antonio Tizzano, 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) ("[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.").
23. See Thomas Buergenthal, The Normative and Institutional Evolution of International Human Rights, 19 HUM. RTS. Q. 703 (1997).
24. 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).
25. For a critique of Lauren's "historical narrative of a linear 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).
26. 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." Ed Bates, History, in INTERNATIONAL HUMAN RIGHTS LAW 17,37 (Daniel Moeckli, Sangeeta Shah, & Sandesh Sivakumaran eds., 2010).
27. 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., DAVID WEISSBRODT ET AL., INTERNATIONAL HUMAN RIGHTS: LAW, POLICY, AND PROCESS 2 (4th ed. 2010) ("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.").
28. For an analysis of the progress narrative of international law, see PROGRESS IN INTERNATIONAL LAW (Russell A. Miller & Rebecca M. Bratspies eds., 2008).
29. On the move toward legalization of international relations and institutions, see LEGALIZATION AND WORLD POLITICS (Judith Goldstein, Miles Kahler, Robert O. Keohane, & Anne-Marie Slaughter eds., 2001).
30. Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 191).
31. For a sampling of the vast literature on the EU as a distinctive normative power, see Ian Manners, Normative Power Europe: A Contradiction in Terms?, 40 J. COMMON MKT. STUD. 235 (2002);
32. Helene Sjursen, The EU as a Normative Power: How Can This Be?, 13 J. EUR. PUB. POL'Y 235 (2006);
33. WHO IS ANORMATIVE FOREIGN POLICY ACTOR? THE EUROPEAN UNION AND ITS GLOBAL PARTNERS (Nathalie Tocci ed., 2008), available at http://www.ceps.eu/ceps/ download/l490.
34. 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;
35. 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;
36. 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;
37. 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.
38. For information about the history and founding of the European Movement, see http://www.europeanmovement.eu/index.php?id=6024.
39. 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, Il Manifesto di Ventotene, per un 'Europa libera e unita, at http://www.altierospinelli.org/manifesto/en/ manifestoen-it.html.
40. 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.
41. For discussion of the significance of its composition, see Antonin Cohen, 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).
42. For an early account of the drafting of the constitution for the European Political Community, see Basil Karp, The Draft Constitution for a European PoliticalCommunity, 8 INT'L ORG. 181,183 (1954)
43. A. H. Robertson, The European Political Communily, 1952 Bmit. Y.B. Int'L L. 383
44. Herbert W. Briggs, The Proposed European Political Community, 48 AJIL 110(1954).
45. A more recent, book-length treatment is RICHARD T. GRIFFITHS, EUROPE'S FIRST CONSTITUTION: THE EUROPEAN POLITICAL COMMUNITY 1952-54 (2005).
46. Daniela Preda, The Debate over the European Constituent Assembly: A Story of Drafts, Desires and Disappointments, 45 FEDERALIST 12 (2003), available at http://www.thefederalist.eu/files/PDF/EN/2000/2003-l-EN.pdf.
47. See MOUVEMENT EUROPEEN, PROJET DE STATUT DE LA COMMUNAUTE POLTTIQUE EUROPEENNE: TRAVAUX PREPARATOIRES 18 (1952).
48. 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.
49. For discussion of the significance of France's ambivalence in this respect, see, From cold war instrument to supreme european court: The european court of human rights at the crossroads of international and national law and politics, Law & Soc. Inquiry, 137 145-146 (2007)
50. 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-l952-010002272.html.
51. 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.
52. 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 (Bela K. Kiraly, Peter Pastor, & Ivan Sanders eds., 1982).
53. The relevant pans of the Fourth Resolution on the Community Judicial Power set out principles, which provided: 1. The juridical functions of the Community are performed by a Supreme Court and by other Courts established by law. 2. The Supreme Court ensures that in the interpretation and application of the Statute and laws of the Community the law is observed. It is at the same time a Constitutional Court and a Court of Appeal. 3. Consequendy it is competent: (a) in cases of conflict between the Statute and the laws or public acts of the Community; (b) in cases of conflict between the Statute and the laws or public acts of the Member States; (c) in cases of disputes between the Member States or disputes to which the Community is a party; (d) in cases of violations of diplomatic prerogatives or immunities; (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 die Study Committee for the European Constitution (Nov. 1952), at http://www.ena.lu/resolutions-adopted-study-committee-european-constitution- brussels-november-l952-2-986.
54. European Consultative Assembly, 4th Sess., Res. 14 (May 30,1952) (concerning die most appropriate means of drafting the EPC Statute), at http://www.ena.lu/resolution-l4-adopted-consultative-assembly-council-europe-30- l952-02-3443.
55. The resolution proposed an assembly comprising either the members of the ECSC Assembly or die members of the Council of Europe Assembly, with the number of members (in the latter case) corresponding to the number and allocation of seats in the future EDC Assembly.
56. See Statute of the Council of Europe, Arts. 1, 13-21, ETS No. 1, 87 UNTS 103.
57. 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.
58. 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-l 952-2-793, available at http://aei.pitt.edu/5201/ (unofficial translation).
59. 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.
60. 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 OFTHE CONSTITUTIONAL COMMITTEE, OCTOBER 1952-APRIL 1953, Doc. No. 6 (n.d.),at http://aei.pitt.edu/991/l/ political-union-draft-treaty-l [hereinafter INFORMATION AND OFFICIAL DOCUMENTS].
61. These four were the subcommittees on powers and competences, on political institutions, on judicial institutions, and on liaison with other states and international organizations.
62. Article 3 provides: "The provisions of Part I of the Convention for the Protection of Human Rights and Fundamental 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."
63. 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.
64. See ECHR Protocol No. 11, May 11, 1994, ETS No. 155, 33 ILM 943, 960 (1994), available at http://conventions.coe.int/treary/en/treaties/html/155.htm.
65. For example, Max Becker, one of the German members of the Constitutional Committee, expressed his concern 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.
66. 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.
67. 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.
68. 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.
69. 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.
70. 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.
71. See also Linda Risso, The (Forgotten) European Political Community 1952-54 (London School of Economics Research Student Conference, July 2-3, 2004), at http://www2.lse.ac.uk/internationalRelations/centresandunits/EFPU/ EFPUconference.aspx.
72. 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.
73. Extraits du compte rendu de la seance de la conference pour la Communaute politique europeene, tenue a Rome le 2 octobre1953 en presence du Groupe de Travail de la Commission constitutionnelle, in ASSEMBLEE AD HOC CHARGEE D'ELABORER UN PROJECT DE TRATTEINSTITUANT UNE COMMUNAUTE POLITIQUE EUROPEENNE, INFORMATIONS ET DOCUMENTS OFFICIELS DE LA COMMISSION CONSTTTUTIONELLE, Doc. No. 10 (May 1953-Mar. 1955).
74. Analyse du rapport adopte le 8 Mars 1954 par la Commission pour la Communaute politique europeene, sec. HI(D), Doc. No. 15, sec. III(D) [hereinafter Analyse du rapport].
75. 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.
76. 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.htm.
77. See Renata Dwan, Jean Monnet and the European Defence Community, 1950-54, 1 COLD WAR HIST. 141 (2000), available at http://www.iiss.ee/files/7/ IIS6008%20JM%20EDC.pdf.
78. See J. H. H. Weiler, Eurocracy andDistrust: 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 (1986,);
79. 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.
80. The aim of the resolution was to revive the process of European integration by focusing on economic integration and die establishment of a common market.
81. 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-1955-2-987;
82. See also Memorandum from the Benelux Countries to the Six Member States of die ECSC, CM3/NEGO/006 (May 18, 1955), at http://www.ena.lu/memorandum- benelux-countries-member-states-ecsc-18-l955-2-24378 (official French version).
83. Now simply known as the Spaak Report, it was formally entitled the Brussels Report on the General Common Market and adopted in June 1956.
84. Intergovernmental Committee on European Integration, Brussels Report on the General Common Market (1956), at http://aei.pitt.edu/995/1/Spaak-report.pdf.
85. See PAUL-HENRI SPAAK, THE CONTINUING BATTLE: MEMOIRS OF A EUROPEAN, 1936 -l 966 (Henry Fox trans., 1971). The travaux preparatoires also make this strategy evident.
86. See Manfred Zuleeg, Fundamental Rights and the Law of the European Communities, 8 COMMON MKT. L. REV. 446 (1971) (citing ERNST WOHLFARTH. ULRICHEVERLING, HANS JOACHIM GLAESNER.& RUDOLF SPRUNG, DIE EUROPAISCHEN WlRTSCHAFTSGEMEINSCHAFT, KOMMENTAR ZUM VERTRAG (I960)).
87. See, in particular, European Commission proposal on EC accession to the ECHR, EC BULL., Supp. No. 2, 1979.
88. For a comment on this proposal, see Kim Economides & Joseph H. H. Weiler, Accession of the Communities to the European Convention on Human Rights: Commission Memorandum, 42 MOD. L. REV. 683 (1979).
89. See Article 2 of the proposed treaty drawn up under the Fouchet Plan and presented at the Bonn Conference of 1961.
90. Draft Treaty-Fouchet Plan I, Art. 2 (Nov. 2, 1961), at www.ena.lu/mce.swf?doc=999&lang=2.
91. 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].
92. Report by the Foreign Ministers of the Member States on the Problems of Political Unification, EC BULL., No. 11, 1970, at 9, 10.
93. Case 1/58, Stork v. High Authority, 1959 ECR 17.
94. Stork, para. 4.
95. Cases 36-38/59 & 40/59, Geitling v. High Authority, 1960 ECR 423.
96. Case 40/64, Sgarlata v. Comm'n, 1965 ECR 215, reprinted in 1966 COMMON MKT. L.REV. 314.
97. 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.
98. 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.
99. Case 29/69, Stauder v. City of Ulm, 1969 ECR 419.
100. Case 11/70, Internationale Handelsgesellschaft v. Einfuhr- und Vorratstelle fur Getreide und Futtermittel, 1970 ECR 1125.
101. Case 4/73, Nold v. Comm'n, 1974 ECR 491.
102. For an excellent account of the Court of Justice's role in the development of legal protection for fundamental rights in the EU
103. 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).
104. Case 6/64, Flaminio Costa v. E.N.E.L., 1964 ECR 585.
105. See the report by Fernand Dehousse, who was by then a Belgian member of the European Parliament.
106. Report on the Supremacy of EC Law over National Law of the Member States, EUR. PARL. DOC. 43 (1965-66), 1965 J.O. (2923) 14 [hereinafter Dehousse Report].
107. 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.
108. Declaration on Democracy, Copenhagen European Council (Apr. 7-8, 1978), EC BULL., No. 3,1978, at 5, available at http://aei.pitt.edu/l440/l/Copenhagen- 1978.pdf.
109. Joint Declaration on Fundamental Rights, 1977 O.J. (C 103) 1.
110. Among the institutional attempts to articulate an EC role in the area of human rights around this time and thereafter are the Final Communique 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;
111. Tindemans Report, EC BULL., Supp. No. 1, 1976, at 9, available at http://aei.pitt.edu/942/l/political-tindemans-report.pdf;
112. 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);
113. Draft Treaty Establishing the European Union (Spinelli Draft), EC BULL., No. 2,1984, at 8, available at http://www.ena.lu;
114. [Second] Report to the European Council, EC BULL., Supp. No. 7,1985, at 18, availableathttp://aei.pitt.edu/992/l/andonnino-report-peoples-europe.pdf;
115. Single European Act of 1986, Feb. 17 & 28, 1986, 1987 OJ. (L 169) 1, available at http://europa.eu/legislation-summaries/institutional-affairs/ treaties/treaties-singleact-en.htm;
116. Declaration on Fundamental Rights, 1989 OJ. (C 120) 51, available at http://www.euro parl.europa.eu/charter/docs/pdf/a2-0003-89-en-en.pdf;
117. EC Commission, Community Charter of the Fundamental Social Rights of Workers, 1989 OJ. (C 323) 44, available at http://socialrights.net/comrnunity- charter-of-fundamental-social-rights-of-workers/[hereinafter Community Charter].
118. 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.
119. Treaty of Amsterdam, Oct. 2, 1997, 1997 OJ. (C 340) 1.
120. 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."
121. Article 13 (ex Article 6a) of the EC Treaty is now TFEU Article 19.
122. On the drafting of Article 13, see MARK BELL, ANTI-DISCRIMINATION LAW AND THE EUROPEAN UNION (2002).
123. See Treaty of Nice, Feb. 26,2001, 2001 O.J. (C 80) 1
124. Consolidatedversion reprinted in 2002 OJ. (C 325) 33.
125. See, e.g., Michael Merlingen, Cass Mudde, & Ulrich Sedelmeier, The Right and the Righteous?: European Norms, Domestic Politics and the Sanctions Against Austria, 39 J. COMMON MKT. STUD. 59 (2001);
126. Cecile Leconte, The Fragility of the EU as a 'Community of Values': Lessons from the Haider Affair, 28 W. EUR. POL. 620 (2005).
127. 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.
128. 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.
129. 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.
130. For information on the establishment and functioning of this network of experts, see http://cridho.cpdr.ud.ac.be/en/eu-experts-network/.
131. 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.
132. Council Regulation (EC) No. 168/2007, Feb. 15,2007,2007 O.J. (L 53) 1 (establishing a European Union Agency for Fundamental Rights).
133. 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).
134. See, e.g., LORAND BARTELS, HUMAN RIGHTS CONDITIONALITY IN THE EU'S EXTERNAL AGREEMENTS (2005);
135. ELENA FIERRO, THE EU'S APPROACH TO HUMAN RIGHTS CONDITIONAUTY IN PRACTICE (2003);
136. see also URFAN KHAUQ, ETHICAL DIMENSIONS OF THE FOREIGN POLICY OF THE EUROPEAN UNION: A LEGAL APPRAISAL (2009).
137. For an early statement, the council's 2001 ANNUAL REPORT ON HUMAN RIGHTS, available at http://www.consilium.europa.eu/uedocs/cmsUpload/HR2001EN.pdf
138. More recently its 2008 ANNUAL REPORT ON HUMAN RIGHTS, available at http://www.consilium.europa.eu/uedocs/cmsUpload/stl4l46-re02.en08.pdf.
139. 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/stlO/st 10076.en06.pdf.
140. For discussion, see Olivier De Schutter, The Promotion of Fundamental Rights by the Union as a 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), at http://refgov.cpdr.Ucl.ac.be/?go=publications&dc= f4d3720606c3fb7b346d9d56el7267cd8ee6805.
141. See, e.g., Case C-301/06, Ireland v. Council (Eur. Ct. Justice Feb. 10, 2009).
142. See, e.g., Case C-540/03, Parliament v. Council, 2006 ECR1-5769.
143. The case law in this field is now voluminous. See Panagiotis Takis Tridimas, Terrorism and the EC]: Empowerment and Democracy in the EC Legal Order, 34 EUR. L REV. 103 (2009).
144. For a synthesis, see PAUL CRAIG & GRAINNE DE BURCA, Human Rights in the EU, in EU LAW: TEXT, CASES, AND MATERIALS, ch. 11 (5th ed., forthcoming 2011).
145. 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);
146. THE CHARTERING OF EUROPE: THE EUROPEAN CHARTER OF FUNDAMENTAL RIGHTS AND ITS CONSTITUTIONAL IMPLICATIONS (Erik Oddvar Eriksen, John Erik Fossum, & Agustin Menendez eds., 2001);
147. AN EU CHARTER OF FUNDAMENTAL RIGHTS: TEXT AND COMMENTARIES (Kim Feus ed., 2000);
148. EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTS, COMMENTARY ON THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (June 2006), http://ec.europa.eu/justice/doc-centre/rights/charter/docs/network-commentary- final%20-l80706.pdf;
149. JUSTUS SCHONLAU, DRAFTING THE EU CHARTER: RIGHTS, LEGITIMACY AND PROCESS (2005).
150. 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;
151. Lord Goldsmith, Charter of Rights, Freedoms and Principles, 38 COMMON MKT. L. REV. 1201 (2001);
152. Francisco Rubio Llorente, A Charter of Dubious Utility, 1 INT'L J. CONST. L. 405 (2003);
153. Alison L. Young, 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).
154. See, e.g., Kathrin Kuhnert, Bosphorus-Double Standards in European Human Rights Protection?, 2 UTRECHT L. REV. 177 (2006).
155. For a more approving assessment, see Cathryn Costello, The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe, 6 HUM. RTS. L. REV. 87 (2006);
156. Leonard Besselink, The EU and the European Convention of Human RightsAfter Lisbon: From 'Bosphorus'Sovereign Immunity to Full Scrutiny?, at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1132788;
157. see also Steven Greer & Andrew Williams, Human Rights in the Council of Europe and the EU: Towards 'Individual,' 'Constitutional' or 'Institutional'Justice?, 15 EUR. L.J. 462 (2009);
158. Frederic van den Berghe, The EU and Issues of Human Rights Protection: Same Solutions to More Acute Problems?, 16 EUR. L.J. 112 (2010)
159. Claire Salignat, 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;
160. 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);
161. Tony Joris & Jan Vandenberghe, The Council of Europe and the European Union: Natural Partners or Uneasy Bedfellows?, 15 COLUM. J. EUR. L. 1 (2009)
162. Andrew Williams, The Indifferent Gesture: Article 7 TEU, the Fundamental Rights Agency and the UK's Invasion of Iraq, 31 EUR. L. REV. 3 (2006);
163. Wojciech Sadurski, Addinga Bite to a Bark: A Story of Article 7, the EU Enlargement, andjorg Haider (Sydney Law School Research Paper No. 10/01), at http://ssrn.com/abstract=1531393
164. Olivier De Schutter & Valerie Van Goethem, The Fundamental Rights Agency: Towards an Active Fundamental Rights Policy of the Union, 7 ERA FORUM 587 (2006);
165. Armin von Bogdandy & Jochen von Bemstorff, The EU Fundamental Rights Agency in the European and International Human Rights Architecture, 46 COMMON MKT. L. REV. 1035 (2009);
166. Gabriel Toggenburg, The Role ofthe New EU Fundamental Rights Agency: Debatingthe "Sex of Angels"or Improving Europe's Human Rights Performance?, 33 EUR. L. REV385 (2008);
167. Anthony ,Does Europe Need a Fundamental Rights Agency?, 31 EUR. L. REV. 285 (2007).
168. For a survey of human rights monitoring in the EU, see MONITORING FUNDAMENTAL RIGHTS IN THE EU (Philip Alston & Olivier De Schutter eds., 2005)
169. See, e.g., Alicia Hinarejos, Recent Human Rights Developments in the EUCourts: The Charter of Fundamental Rights, 7 HUM. RTS. L REV. 793 (2007)
170. See Kristi Severance, France's Expulsion of Roma Migrants: A Test Case for Europe (2010), at http://www.migra tioninformation.org/Fea ture/display.cfim?ID=803
171. See Andrew Willis, Hungary's PM: EU Cannot Tell Us "What to Do'on Media Law, EU OBSERVER, Jan. 6, 2011, at http://euobserver.eom/9/31600
172. For a discussion ofthe drafting ofArticle 51 of the charter, see Grainne de Burca, The Drajiingofthe EU Charter of Fundamental Rights, 26 EUR. L. REV. 214 (2001).
173. For more recent comment, see ALLAN ROSAS & LORNA ARMATI, EU CONSTITUTIONAL LAW: AN INTRODUCTION 143-62 (2010)
174. See Gráinne de Búrca, Beyondthe Charter: How Enlargement Has Enlargedthe Human Rights Policy oftheEuropean Union, 27 FORDHAM INT'L L.J. 679 (2004);
175. 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 Anneli Albi, Ironies in Human Rights Protection in the EU: Pre-accession Conditionality and Post-accession Conundrums, 15 EUR. L.J. 46 (2009)
176. 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=14&TXTLST=1 &Type-Doc=FIRST&POS=1
177. See http://cridho.cpdr.ud.ac.be/en/eu-experts-network/
178. 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.
179. 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
180. 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.
181. 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.
182. Austrian Foreign Ministry, European Human Rights Agency (2011), at http://www.bmeia.gv.at/en/foreign-ministry/foreign-policy/human-rights/ eu-human-rights-policy/fundamental-rights-agency.html.
183. Finally, die agency's role does not include examination of individual complaints, regulatory decision making, or member states' compliance with EU treaties
184. The ECJ uses the phrase "special significance' in referring to the status of the ECHR.
185. For a recent example see Joined Cases C-402/05 & C-415/05, Kadi v. Council, [2008] ECR1-6351, at paragraph 283.
186. 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 (Malcolm Evans & Panos Koutrakos eds., 2011).
187. 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)
188. 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."
189. See Bosphorus Hava Yollari Turizm ve Ticaret Anonim §irketi v. Ireland, 2005-VI Eur. Ct. H.R
190. For a recent argument against the need for EU accession to the ECHR, see Francis G. Jacobs, 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 (ingolf Pemice, Juliane Kokott, & Cheryl Saunders eds., 2006) (Jacobs is a former ECJ advocate general).
191. 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. 2009/224 l(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 anyway 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...
192. 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, the ECJ would be bound also by the decisions of that court.
193. 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.
194. See Tobias Lock, The ECJ and the ECtHR-The Future Relationship Between the Two European Courts, 8 L. & PRAC. INT'L CTS. & TRIBUNALS 375 (2009).
195. Others, however, including Allan Rosas, an ECJ judge, have cast doubt on whether the ECJ in Opinion 1/91 really intended this implication.
196. See Allan Rosas, 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)
197. On the interactions between the two courts, see Johan Callewaert, The European Convention on Human Rights and European Union Law: A Long Way to Harmony, 6 EUR. HUM. RTS. L. REV. 768 (2009).
198. 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.
199. 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.
200. 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.
201. See John L. Murray, The Influence of the European Convention on Fundamental Rights on Community Law, 33 FORDHAM INT'L LJ. 1388 (2010)
202. See Jonas Bering Liisberg, 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), 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)")
203. 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).
204. See 2007 O.J. (C 303) 17, 33
205. Laurent Scheeck, The Supranational Diplomacy of the European Courts: A Mutually Reinforcing Relationship?, in THE ECJ UNDER SIEGE: NEW CONSTITUTIONAL CHALLENGES FOR THE ECJ 172,193 (Giuseppe Martinico & Filippo Fontanelli eds., 2009);
206. see also Guy Harpaz, 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)
207. See Kadi v. Council;
208. 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)
209. Joined Cases C-402/05 & C-415/05, para. 316
210. Case C-465/07, Elgafaji v. Staatssecretaris van Justitie (Eur. Ct. Justice Feb. 17, 2009)
211. 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
212. Elgafi, para. 28
213. See Olivier De Schutter & Israel Butler, Binding the EUto International Human Rights Law, 2008 Y.B. EUR. L. 277
214. 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.
215. See Frederic M. van den Berghe, The European Union and the Protection ofMinorities: How Real Is the Alleged Double Standard?, 2003 Y.B. EUR. L. 155;
216. Gulara Guliyeva, 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);
217. DOUBLE STANDARDS PERTAINING TO MINORITY PROTECTION (Kristin Henrard ed., 2010)
218. Council of Europe Framework Convention for the Protection of National Minorities, opened for signature Feb. l,1995,ETSNo. 157
219. 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- parliament-public-hearing-0114/.
220. 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)
221. 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-rights-within-european-union/index-en.htm
222. 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.
223. The commission began in 2006 to identify protection of children's rights as a major concern of the EU and thereafter published a paper, Towards an EU Strategy on the Rights of the Child, EUR. PARL. DOC. COM (2006) 367 final (July 4,2006).
224. 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."
225. 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/Engekka%20 rapporter/Governance-fit-for- children-201l.pdf.
226. 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;
227. 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
228. 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. (L 204) 23 (recast);
229. 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
230. 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
231. 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)
232. 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;
233. 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
234. Daphne II Programme to Combat Violence Against Children, Young People and Women (EU), http://www.ispesl.it/dsl/dsl-repository/Sch22PDF08Marzo06/ Sch22DaphneIIProgrtocombatviolenceagstchildrenwomen.pdf
235. PROGRESS Programme (EU), http://ec.europa.eu/social/main.jsp?catld= 327&langld=en
236. See also Steve Peers, EU Justice and Home Affairs Law, in THE EVOLUTION OF EU LAW 269 (Paul Craig & Grainne de Biirca eds., 2d ed. 2011);
237. VALSAMIS MITSILEGAS, EU CRIMINAL LAW (2009)
238. See, e.g., Jari Pirjola, European Asylum Policy: Inclusions and Exclusions Under the Surface of Universal Human Rights Language, 11 EUR. J. MIGRATION & L. 347 (2009);
239. Sarah H. Krieg, Trafficking in Human Beings: The EU Approach Between Border Control, Law Enforcement and Human Rights, 15 EUR. L.J. 775 (2009)
240. See, e.g., AMNESTY INTERNATIONAL, HUMAN RIGHTS DISSOLVING AT THE BORDERS? COUNTER-TER-RORISM AND EU CRIMINAL LAW (2005), at http://www.amnesty.org/en/ library/info/IOR61/013/2005/en;
241. Catherine Teitgen-Colly, The European Union and Asylum: An Illusion ofProtection, 43 COMMON MKT. L. REV 1503 (2006).
242. For a critique of the ECJ's limited jurisdiction over justice and home affairs, along with its human rights implications, see Stephen Carruthers, The Treaty of Lisbon and the Reformed'JurisdictionalPowers of the European Court of Justice in the Field of Justice and Home Affairs, 6 EUR. HUM. RTS. L. REV. 784 (2009)
243. 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;
244. Presidency Conclusions, Brussels European Council, Protocol on the Application of the Charter of Fundamental Rights of the European Union to the Czech Republic, Doc. 15265/1/09 Rev l.AnnexI (Dec. 1,2009), http://register. consilium.europa.eu/pdf/en/09/stl5/stl5265-re01.en09.pdf (to be annexed to the TEU when it is next amended)
245. 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)
246. 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)
247. 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).
248. 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)
249. 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 LEARNING-BASED FUNDAMENTAL RIGHTS POLICY FOR THE EUROPEAN UNION, at 1 (Olivier De Schutter & Violeta Moreno Lax eds., 2010)
250. In 2010, citing human rights concerns, the EU suspended trade preferences with Sri Lanka. See also Jan Orbie & LisaTortell, The New GSP+ Beneficiaries: Ticking the Box or Truly Consistent with ILO Findings?, 14 EUR. FOREIGN AFF. REV. 663 (2009).
251. For a more general analysis of the legality of the EU's generalized system of preferences (which gives export preferences to developing countries), see Lorand Bartels, The WTO Legality of the EU's GSP+ Arrangement, 10 J. INT'L ECON. L. 869 (2007)
252. For an appraisal, see Karen E. Smith, Speaking with One Voice? European Union Co-ordination on Human Rights Issues at the United Nations, 44 J. COMMON MKT. STUD. 113 (2006)
253. See Commission Communication, European Neighbourhood Policy Strategy Paper, COM (2004) 373 final (May 12, 2004)
254. See European Instrument for Democracy & Human Rights, http://ec.europa.eu/europeaid/how/finance/eidhr-en.htm
255. For a summary of some of the criticisms, see PAUL CRAIG & GRAINNE DE BURCA, EU LAW: TEXT, CASES, AND MATERIALS 379-427 (4th ed. 2008).
256. See, e.g., RICHARD GOWAN & FRANZISKA BRANTNER, 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/contentVentry/the-european-union-at-the-united- nations;
257. RICHARD GOWAN & FRANZISKA BRANTNER, 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]
258. AMNESTY INTERNATIONAL, THE EU AND HUMAN RIGHTS: MAKING THE IMPACT ON PEOPLE COUNT (2009), at http://www.amnesty.org/en/library/info/IOR6l/004/2009/en [hereinafter MAKING THE IMPACT OF PEOPLE COUNT];
259. see also Kenneth Roth, Filling the Leadership Void: Where is the European Union?, in HUMAN RIGHTS WATCH, WORLD REPORT 2007, at http://www.hrw.org/legacy/ wr2k7/
260. See Briand Memorandum of 1930,1 DOCUMENTS ON BRITISH FOREIGN POLICY 1919 -1939, at 314 (2d ser. 1947)
261. For recent discussions of the relevance and influence of Spinelli's ideas, see John Pinder, Altiero Spinelli's European Federal Odyssey, 42 THE INT'L SPECTATOR 571 (2007)
262. Andrew Glencross, Altiero Spinelliandthe Idea of'the US Constitution as a Model for Europe: ThePromises and Pitfalls of an Analogy, 47 J. COMMON MKT. STUD. 287 (2009).
263. For a comparison between the Spinelli and Monnet approaches to European integration, see Michael Burgess, FEDERALISM AND EUROPEAN UNION: POLITICAL IDEAS, INFLUENCES, AND STRATEGIES IN THE EUROPEAN COMMUNITY 1972-1986, at 27-39 (1989)
264. For his foundational collection of essays on the functionalist theory of international relations, see DAVID MITRANY, A WORKING PEACE SYSTEM (1966).
265. 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
266. Many of Monnet's animating ideas and principles are to be found in his MEMOIRS (Richard Mayne trans., 1978).
267. 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
268. See KRISTl SEVERANCE, FRANCE'S EXPULSION OF ROMA MIGRANTS: A TEST CASE FOR EUROPE (Migration Policy Institute 2010), at http://www. migrationinfbrmation.org/Feature/display.cfrn?ID=803
269. See SUSI DENNISON & ANTHONY DWORKIN, POLICY BRIEF: TOWARDS AN EU HUMAN RIGHTS STRATEGY FOR A POST-WESTERN WORLD (2010);
270. Karen E. Smith, The European Union at the Human Rights Council: Speaking with One Voice but Having Little Influence, 17 J. EUR. PUB. POL'Y 224 (2010)
271. "Masters of the Treaties" (Herren der Vertrage) 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 BVerrGE 155 (190)
272. Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 INT'L ORG. 217 (2002).
273. 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 A. W. BRIAN SIMPSON, HUMAN RIGHTS AND THE END OF EMPIRE: BRITAIN AND THE GENESIS OF THE EUROPEAN CONVENTION (2001)
274. The term "showcasing" was used to explain the reason for drafting the EU Charter of Fundamental Rights.
275. 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;
276. Andy McSmith & George Jones, Rights Charter 'May Form Constitution fir EUSuperstate,' DAILY TELEGRAPH, Aug. 1, 2000, at http://www.telegraph.co.uk/ news/worldnews/europe/1366967/Rights-charter-may-form-constitution-for-EU- superstate.html;
277. see also Christopher McCrudden, The Future of the EU Charter of Fundamental Rights 10 n.29 (Jean Monnet Working Paper 10/01, 2001), at http://centers.law.nyu.edu/jeanmonnet/papers/01/013001.html
278. 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. (forthcoming), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id =1490701
279. 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), http://www.europarl.europa.eu/meetdocs/2009-20l4/documents/ droi/dv/p6-ta(2009)0021-/p6-ta(2009)0021-en.pdr;
280. See Anu Bradford & Eric A. Posner, Universal Exceptionalism in International Law, 52 HARV. INT'L L.J. 1 (2011).
281. On the EU's particular brand of exceptionalism, see Magdalena Lickova, European Exceptionalism in International Law, 19 EUR. J. INT'L L. 463 (2008)
282. 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.
283. Alexander Stubb, Adopting a Dignified Foreign Policy, EUR. VOICE, Sept. 23, 2010, available at http://www.europeanvoice.com/article/imported/adopting-a- dignified-foreign-policy/68986.aspx.
284. 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-middle-east-11514275
285. On the European Commission's Web site on Employment, Social Affairs and Equal Opportunities, http://ec.europa.eu/social/home.jsp?langld=en
286. see the Web page Diversity & Non-Discrimination, http://ec.europa.eu/ social/main.jsp?catld=797&langld=en
287. The report on progress in gender equality, http://ec.europa.eu/social/ BlobServlet?docId=6562&langld=en
288. For an overview, see the Fundamental Rights Agency's Web page Networking in Focus, http://fra.europa.eu/fraWebsite/networks/networks-en.htm
289. Charles F. Sabel & Oliver H. Gerstenberg, Constitutionalising an Overlapping Consensus: The EC] and the Emergence of a Coordinate Constitutional Order, 16 EUR. L.J. 511 (2010).
290. Articles 51-54 of the European Charter explain its scope of application and the general principles applicable to its interpretation