Where Is Our European Bill of Rights?

Europe: a question of definitions

With the European Union facing one of its most difficult crises and at a crossroads for its future orientation, it remains important to go back to some of the basic questions as to what makes Europe worth fighting for. As liberals, we can at least all agree that Europe should be a space for democracy, human rights and the rule of law. However, when it comes to implementation, every part of that statement deserves further explanation. After all, what do we mean when we speak of ‘Europe’? And who will foster that ‘democracy’, ensure the ‘rule of law’ and protect those ‘human rights’? And what do we mean by them? This is not a philosophical question on identity or history, but a crucial question on the fundamental institutional framework of Europe. After all, today, there are two main institutions that claim to uphold these values in this region, namely the European Union and the Council of Europe. The relationship between these two cannot be disconnected from the discussion on the EU itself.

First, we must see the complexity the past six decades has created. Certainly, we can recognize the European Parliament as a prime example of how European democracy can function. But it is less known that in Strasbourg, four times a year, members of national parliaments from all over Europe also meet in the so-called Parliamentary Assembly, which is one of the bodies of the Council of Europe. Everyone has heard of the European Court of Human Rights, but this ‘Strasbourg court’ has nothing to do with the European Union. The EU’s Court is in fact located in Luxemburg. And yes, far too often, we see journalists with poor research skills write about the ‘European Council’ while they mean the ‘Council of Europe’. And to make things even more confusing: the Council of Europe and the European Union share the same flag and anthem, but they do not celebrate the same ‘Europe Day’: 5 May for the Council of Europe, and 9 May for the EU. Is everyone still following?

So, what does Europe encompass? There are 50 internationally recognised sovereign states with territory located within the common definition of Europe. Just over half of them, 28 out of 50, are members of the European Union. Even if all five recognised candidate countries were to join, which seems unlikely today, more than one third would still be outside the European Union. Of course, the main difference between the Council of Europe and the European Union is that the former is purely intergovernmental in nature. Everything is based on a voluntary commitment of member states. The EU has much more supranational characteristics and can be seen as a political union of states to which a lot of the sovereignty has been ceded. In such a process, questions about democracy and the rights of European citizens must be posed. If the EU is to get state-like features, it should, to the same extent as national states, provide for a system of protection of rights of the individual.

From coal to charter

It is somewhat surprising to note that, despite the long process of European integration, already on the onset, a wide consensus was reached on a far-reaching legal framework of human rights. Out of the atrocities of the Second World War, the visionary drafters of the European Convention of Human Rights proclaimed the rights of all Europeans and that never again should national policies go against the fundamental rights of the people. In a similar fashion, the states agreed that an organization like the Council of Europe would be necessary to protect this framework. The European Union, as a political and economic project on the other hand, did not involve itself too much with fundamental rights. Coal and steel were the uniting factors in the beginning, not freedom of expression or privacy rights. It is only in the year 2000 that a Charter of Fundamental Rights of the European Union was drawn up, and we had to wait until 2009 for it to have full legal effect.

For a long time, this arrangement seemed to function well: the EU would undergo its political and economic integration, while the Council of Europe would safeguard human rights and democracy throughout Europe. However, this model is becoming more and more difficult to maintain. The EU is seen as a far more dynamic instrument in getting the states of Europe to follow certain standards or to rally around political proposals. The EU has its own rights agenda, and has even created proper institutions such as the Fundamental Rights Agency. Due to the expanding scope of the EU, the Council of Europe has seen its ability to be a relevant actor subside. The Council of Europe has produced 212 treaties to date, but many have not been ratified by its member states. Of course, it is also true that budget-wise, the European Union spends in a day what the Council of Europe spends in a year.

Finding a new focus for the Council of Europe

The Council of Europe nowadays is viewed somewhat with pity by observers. It was ironic to see Secretary General of the Council of Europe Thorbjørn Jagland award the Peace Prize to the leaders of the European Union “for the advancement of democracy and human rights” on behalf of the Norwegian Nobel Committee that he chairs as former Prime Minister. Whoever wanders through the corridors of the Palais de l’Europe in Strasbourg today can just perceive the glory of the good old days, which are in fact relatively recent. It was only a generation ago, that after the fall of the Berlin Wall, the countries of Eastern Europe would be welcomed to the Council of Europe, with great expectations that democracy and human rights would be the cornerstone of the new Europe. These lessons must not be forgotten, with countries such as those of the Southern Caucasus still at the doorstep of Europe. Principles of human rights and democracy are not a given in Europe today.

So, despite the amazing development of the EU as a political project, European leaders have not abandoned the Council of Europe altogether. A Memorandum of Understanding in 2007 started a process of reform. At its Congress in 2008, the European Liberal Youth considered that the Council of Europe “should remain the principal and most important institution for the protection of democracy, rule of law and human rights, and the promotion of intercultural dialogue and fair sport [sic] on the European continent”. Despite all these sentiments, the budget of the Council of Europe has been frozen, so it is in fact decreasing. A reduction in staff is taking place. In these times of crisis, national member states want to limit the role of the Council of Europe to its crown jewels, which are the European Court of Human Rights and other related institutions that offer legal protection.

Certainly, all sorts of cultural co-operation do not need extensive bureaucracy, nor should we be holding large-scale ministerial conferences on all kinds of human rights topics just for the sake of holding them or sustaining intergovernmental committees that produce toothless recommendations. The Council of Europe should streamline its activities and retain its focus. After all, its achievements can easily be put into question again, as we can see from the enormous difficulties the Human Rights Court has been having in being an effective judge of cases. And there are certainly bad pupils. In September 2012, the Council of Europe Ministerial Conference on Youth failed to reach a consensus on what should have been the acquis in terms of prohibiting discrimination on the basis of gender identity or sexual orientation. But even well-established democracies, such as the United Kingdom, regularly put the national impact of the European Convention on Human Rights into question.

Declaring the rights of all Europeans

If the Council of Europe is being put in its legal straitjacket, it will be interesting to see how fundamental rights will become an integral part of the EU’s future agenda. The EU has promised to accede to the European Convention on Human Rights, which would mean that all acts of the EU also fall under the review of the Strasbourg court. This should avoid a diverging legal order between the system of the European Convention on Human Rights on the one hand and the EU on the other. A proposed accession agreement was drafted in April 2013, but is still not a reality. However, we must press this process forward, as we, liberals, should be wary of the political games that are being played with our fundamental rights. More and more, we see member states of the EU asking for exceptions when it comes to issues that should be fundamental to our values.

A European Union that accepts the Convention and the Council of Europe as its highest law is more than solving a legal technicality. It is an important breakthrough in the EU achieving a state-like status. Almost all liberal or democratic revolutions in history have led to solemn proclamations of the rights of citizens, and those rights have been put at the core of the political systems that were created. And the development of rights does not end here, but these rights must also be applied in reality. We must be aware of the potential a constitutional court has. In the United States, it was not Congress but the Supreme Court that guaranteed a woman’s right to choose to have an abortion, as part of the fundamental right to privacy. The Bundesverfassungsgericht in Germany is seen as a key symbol for the protection of democracy and the rule of law in the Federal Republic.

Certainly, everyone should be warned against judicial activism where social policy is made from the bench, but when it comes to protection of fundamental rights, the courts need to take an effective role. We must therefore establish and promote the idea in Europe that it is through a constitutional system of fundamental rights that the individual has been protected against overbearing governments, and yes, even against the EU itself. Whatever the institutional lay-out of future Europe may be, one of the preconditions must be that the rights of the European citizen – or every person on the European continent for that matter – are well-established and universal. We should fight for a European Bill of Rights, which is the European Convention on Human Rights, and declare this to be our minimal standards for the democratic society we are constructing in Europe.