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The European Parliament was one of the first and most ardent supporters of an EU catalogue of human rights and of accession by the Community to the ECHR.71 This policy dates back to the 1977 Joint Declaration on Human Rights of the Parliament, Council and Commission,72 based on an initiative from the Parliament, which was followed up by the Parliament's Draft Treaty on a European Union from 1984 (the Spinelli Report), which included a provision similar to what is now Article 6 TEU.73
In April 1989, the European Parliament adopted the first tentative Community catalogue of human rights (based on the De Gucht Report), which was an important source of inspiration for the Charter Convention. The European Parliament's Declaration of Fundamental Rights and Freedoms of 12 April 198974 included a provision similar to Article 53, called Article 27, "Degree of Protection," which provided that:
"No provision in this Declaration shall be interpreted as restricting the protection afforded by Community law, the law of the Member States, international law and international conventions and accords on fundamental rights and freedoms or as standing in the way of its development."
The similarity with Article 53 of the Charter, both in wording and title, is striking. Like Article 53, the grammatical subject of the provision is limited to the instrument itself ("No provision in this Declaration"), and not to a wider concept such as the Treaties or Community law in general. There are, however, important differences. Article 27 refers to "the law" of Member States in general, not only the "constitutions," and the provision is time-neutral in the sense that future developments are accounted for, whereas Article 53, at least on a strict reading, refers only to higher levels of protection existing at the time of the adoption of the Charter. Furthermore, Article 27, unlike Article 53, is not limited to conventions to which "all" the Member States are party, and it does not include an "in their respective fields of application" proviso.75
In 1994, a committee of the European Parliament adopted a draft constitution for the European Union (the Herman Report).76 In Title VII, the draft incorporated a revised version of the 1989 catalogue of human rights. Point 24 of this Title, "Degree of Protection," is based on Article 27 and reads as follows:
"No provision in this Constitution may be interpreted as restricting the protection afforded by the law of the Union, the law of the Member States, and international law."
The brevity of this provision is admirable, considering that it does not legally exclude anything significant from its model in Article 27 of the Declaration. One difference, however, is important to note. By using the expression, "No provision in this Constitution," the clause suggests that all other provisions in the draft constitution, including stipulations on the powers of the Community regulator and adjudicator, would be subordinate to, inter alia, all rights provisions in the law of the Member States.
Such a challenge to the supremacy of EU law was not intended; on the contrary, the draft constitution Article 1(6) explicitly stipulated that "The law of the Union takes precedence over the law of Member States." Yet on a purely textual analysis, employing general rules of interpretation (lex specialis), it would be hard to refute that point 24 of Title VII posed a challenge to the doctrine of supremacy. Article 7 of the draft constitution, which provided that "The Union shall respect fundamental rights as guaranteed by the [ECHR], by the other applicable international instruments and as they derive from the constitutional principles shared by the Member States" (emphasis added), could soften this interpretation somewhat, by its explicit reference to "the constitutional principles shared by the Member States," but had the draft constitution been adopted, the supremacy problem would no doubt have been real. With respect to Article 7 of the draft, it is noteworthy that, like Article 52(3) of the Charter and Article 6(2) TEU, it ensures that the ECHR should serves as a minimum level of protection.
Since 1974 all Members of the European Union have been Contracting Parties to the ECHR of 1950 under the auspices of the Council of Europe.77 The ECHR and the case law from the European Court of Human Rights have served as important points of reference, both in the case law of the ECJ and for the Convention drawing up the EU Charter of Fundamental Rights. The model on which the drafters based Article 53 of the Charter is found in Article 53 (ex Article 60) of the ECHR, probably the first international human rights provision of its kind and likely also a source of inspiration for later international instruments (see below).78 Article 53,79 entitled "Safeguard for existing human rights," provides that:
"Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party."
Like Article 27 of the European Parliament Declaration of Human Rights, Article 53 ECHR differs from Article 53 of the Charter by being time-neutral ("may be ensured"), by referring to domestic law in general (not only constitutions), and by taking into account other conventions to which "any" (not "all") of the Contracting Parties is party. Another difference that distinguishes the text from both Article 53 of the Charter and Article 27 of the Declaration is that there is no reference to international law in general, only international agreements. From the travaux préparatoires to the ECHR it appears that the Article was adopted on a British draft based on an Italian suggestion without any debate in the drafting committee of legal experts.80
The European Social Charter from 1961, a Council of Europe treaty not under the jurisdiction of the European Court of Human Rights, contains a similar provision in its Article 32.81 The title of the provision, "Relations between the Charter and domestic law or international agreements," is overly broad compared to the content. In line with Article 53 ECHR the Article simply provides that: "The provisions of this Charter shall not prejudice the provisions of domestic law or of any bilateral or multilateral treaties, conventions or agreements which are already in force, or may come into force, under which more favourable treatment would be accorded to the persons protected." Although the wording differs (and is reminiscent of the "Most Favored Nation" language of international trade law) the legal effect and content seem to be the same as Article 53 ECHR.82
There is relatively little case law about Article 53 ECHR from the European Court of Human Rights or the now-extinct European Commission of Human Rights. The few existing cases do not seem to have been the subject of any systematic analysis by scholars (see 3.2.3. below). The limited case law indicates that there is some confusion about the true meaning and purpose of Article 53 and that the European Court of Human Rights is reluctant to refer to it.
On one issue the case law is very clear: individual applicants cannot invoke Article 53 to support a claim that their rights under national law or other treaties, e.g. the UN Covenants, have been violated. Such applications will be dismissed as incompatible ratione materiae with the ECHR, cf. Article 35(3) ECHR. The European Commission of Human Rights has stated very plainly that Strasbourg "n'est pas compétente pour examiner des requêtes relatives à des prétendues violations d'autres instruments internationaux ou du droit interne. L'article [53] de la Convention ne confère aucunement aux organes de celle-ci pareille compétence."83
This does not mean, however, that the European Court of Human Rights disregards other human rights instruments; it simply means that a claim has to be based on a provision of the ECHR to be entertained by the Court, and that the Court cannot apply national law or other treaties. There are numerous examples of cases where the Court has referred to domestic law of Contracting Parties (as evidence of evolving European standards) and to other international instruments, e.g. the UN Covenants and Convention on the Rights of the Child (CRC), as inspiration and support for a certain interpretation of the ECHR, often to the benefit of the individual applicant. But the Court has never found it warranted, much less necessary, to refer to Article 53 as part of such dynamic interpretations of the ECHR.84 There are also a few examples of reasoning a contrario based on comparisons with other instruments, most strikingly in the first German Berufsverbot cases in which the Court found that the ECHR did not protect a right of equal access to public service and cited not only the ECHR travaux préparatoires but also the Universal Declaration of Human Rights and the ICCPR, which do protect such a right.85
If Contracting Parties invoke Article 53 to defend themselves against an arguable claim that they have violated the ECHR, the legal situation is a little more ambiguous. Generally, Contracting Parties have not been successful in such efforts; the Court has never explicitly referred to Article 53 as a basis for finding no violation. There have been three recent cases where the respondent government before the Court invoked Article 53.
Probably the most illustrative of these cases is the Open Door case against Ireland, on information about abortion, from 1992. The Irish government invoked Article 53 to argue that Article 10 ECHR on freedom of expression should not be interpreted to limit the right to unborn life, which had recently been endorsed by a constitutional referendum.
The Court rejected this argument in a somewhat cryptic manner, sidestepping any general interpretation of Article 53. The Court said that it did not call "into question under the Convention the regime of protection of unborn life" under Irish law, and recalled that "the [contested] injunction did not prevent Irish women from having abortions abroad and that the information it sought to restrain was available from other sources [...] Accordingly, it is not the interpretation of Article 10 but the position in Ireland as regards the implementation of the law that makes possible the continuance of the current level of abortions obtained by Irish women abroad."86 One is left to ponder whether, had the Irish government effectively blocked all incoming information about abortion abroad and prevented pregnant women from leaving the country, the European Court of Human Rights would have sustained the injunction on the basis of Article 53. My contention is: clearly not. But the Court probably refrained from saying so because it was not strictly necessary and such a statement could have made its finding of a violation of Article 10 ECHR even more controversial.
The Court was split fifteen votes to eight. Quite remarkably, almost all the dissenting judges gave some weight to the Irish government's Article 53 argument. A dissenting opinion by four judges, including Judge Pettiti, author of the leading French commentary to the ECHR, found that the Court had "failed to take sufficient account of the reference to "the rights of others" in Article 10 [ECHR] and of Article [53] in relation to the provisions in the Irish legislation which afford a broader protection of rights than the Convention." Another dissenting opinion by Judge de Meyer (see 2.3.3. below on his earlier writings on Article 53) stated that it was essentially the Irish right to life, rather than morals, that was at stake and that the case accordingly raised "serious problems from the point of view of Articles 2, 17 and [53]." Ad hoc Judge Blayney from Ireland devoted most of his dissenting opinion to Article 53, saying that the Court was "precluded" by this provision from finding that there had been a breach of Article 10. "The right of the unborn to be born," he stated, "is clearly a human right and it is guaranteed" by the Irish Constitution. And, according to Judge Blayney, "Under Article [53] nothing in the [ECHR] is to be construed as limiting or derogating from that right." He dismissed the arguments of the majority as irrelevant. "The sole issue is whether a finding that the injunction constitutes a breach of Article 10 amounts to interpreting that Article as derogating from the human rights of the unborn as guaranteed by the Constitution, and in my opinion it does."
In the Jersild case against Denmark from 1994, concerning
a TV journalist who had been fined for broadcasting highly racist remarks made
to him during an interview with members of a group that claimed to be a Danish
branch of the Ku Klux Klan, a similar question arose. This time the allegedly
colliding human rights norm was based on a UN convention, the International
Convention on the Elimination of All Forms of Racial Discrimination (CERD) from
1965.87 The Danish
government conceded that Article 10 ECHR on freedom of expression was
applicable, but argued that Article 10 should not be interpreted in such a way
as to limit, derogate from or destroy the right to protection against racial
discrimination under CERD. The Danish Government invoked Article 53 in this
connection, but it does not appear from the Court's summary in the judgment,
and not even the dissenting opinions mention this provision.
The
Court took a close look at the relevant provision of CERD, Article 4, and
observed that its "due regard" clause, intended to somewhat soften the
obligation to criminalize all racist speech, had given rise to differing
interpretations. The UN control body, the CERD Committee, had been divided in
its (non-binding) comments on the conviction of the journalist. The Court said
that it was particularly conscious of the vital importance of combating racial
discrimination, and that, consequently, "the object and purpose pursued by
[CERD] were of great weight in determining whether the applicant's conviction
was "necessary" within the meaning of Article 10(2) [ECHR]." The Court
concluded that: "Denmark's obligations under Article 10 [ECHR] must be
interpreted, to the extent possible, so as to be reconcilable with its
obligations under [CERD]. In this respect it is not for the Court to interpret
the "due regard" clause in Article 4 [CERD], which is open to various
constructions. The Court is, however, of the opinion that its interpretation of
Article 10 [ECHR] in the present case is compatible with Denmark's obligations
under [CERD]." The Court found that the conviction of the journalist had
violated Article 10 ECHR.
In one dissenting opinion by four Judges, including then-President of the Court, Rolf Ryssdal, it was said that CERD "probably" did not require the punishment of the journalist, but that CERD supported their conclusion. In a dissenting opinion by three other Judges, it was said that CERD "manifestly cannot be ignored when the [ECHR] is being implemented [...] It must [...] guide the European Court of Human Rights in its decisions." Neither of the opinions referred to Article 53.
The third recent case in which Article 53 was invoked by the respondent government, is the Gustafsson case against Sweden from 1996, which concerned labor union blockades of a small restaurant whose owner refused to sign collective labor agreements.88 The case raised the intricate issues of conflict between positive and negative aspects of freedom of association and the extent to which Contracting Parties are under positive obligations to protect individuals against action by other private individuals. The government argued, inter alia, that Article 53 entitled Sweden to protect the labor unions' positive freedom of association and assembly as fundamental rights under Swedish law.
Somewhat reluctantly, the majority of the Court agreed that Article 11 ECHR on freedom of association was applicable to the facts. However, the Court gave a wide "margin of appreciation" to Sweden, referring, inter alia, to the special Swedish model of collective bargaining on the labor market (which works in lieu of legislation). The Court did not address the issue of Article 53, but said that it saw "no reason to doubt that the union action pursued legitimate interests consistent with Article 11 [ECHR]." The Court further recalled that "the legitimate character of collective bargaining is recognised by a number of international instruments, in particular [...] the European Social Charter, [...] the [ICESCR] and [two ILO] Conventions." The Court concluded that Sweden had not violated the ECHR.
A dissenting opinion by Judge Martens, joined by one of the longest-serving judges of the Court, Judge Matscher (author of many books on the ECHR) contains an illuminating, but debatable, argument against the application of Article 53. Judge Martens rejected the Swedish government's argument that the immunity of the blockading trade unions was a fundamental right under Swedish law, and as such should be respected by the Court under, what Judge Martens characterized as, "the interpretative rule of Article [53]." "The immunity from suit which trade unions enjoy under Swedish law," Judge Martens declared, "does not come within the category of the "human rights and fundamental freedoms" referred to in Article [53]. The essential flaw of that immunity is that it is incompatible both with the rule of law and with a proper protection of the individual's negative rights under Article 11. Having created a right that is thus essentially flawed, Sweden should not be allowed to pass it off as a human right or fundamental freedom." (See comments in 4.4. below at note 163).
The three cases discussed above show that governments have tried to use Article 53 when conflicting human rights values and norms, either of national or international origin, collide with applicable provisions of the ECHR, and that the Court has confirmed its willingness to give these conflicting interests serious consideration, even to the extent of exonerating the government (Gustafsson). But there is no indication that Article 53 plays any role in this connection.
In the early ground-breaking case, Golder, from 1975, the Court read the right of access to a court into the fair trial guarantee of Article 6 ECHR, which does not provide any textual support for (or against) such a right.89 The Court did so by emphasizing the rule-of-law object and purpose of the ECHR, and rejecting the idea that a law-making treaty such as the ECHR should be interpreted in dubio mitius. In a separate opinion, Judge Verdross invoked to Article 53 as an interpretative principle limiting the teleological and dynamic approach of the majority: "The Convention makes a clear distinction between the rights and freedoms it secures itself (Article 1) and those which have their basis in the internal law of the Contracting States (Article [53]). [It] results, in my view, from Article 1 that among such [defined] rights and freedoms can only be numbered those which the Convention states in express terms or which are included in one or other of them." And Judge Verdross added that "Considerations of legal certainty too make this conclusion mandatory: the States [... ] ought to be sure that [defined] bounds will be strictly observed."90
As is evident from the case law of the European Court of Human Rights, the Court has not viewed Article 53 as placing any constraints on its dynamic and teleological style of interpretation. Since then, the Court has on several occasions discovered or stipulated inherent rights. The source of the rights, as well as the limiting principle, is mainly the gradual evolution of common European standards.91
There are a few other cases which shed some light on the meaning of Article 53. In the Ekbatani and Burghartz cases, the Court referred to Article 53 to make clear that additional rights in the 7th protocol (Article 2 on the right to appeal in criminal cases and Article 5 on the equality of spouses, respectively) could not be interpreted as prejudicing the rights already guaranteed by original provisions in the ECHR (Article 6 on the right to a fair trial and Article 8 on the right to family life, respectively).92 The point is of fairly limited application and simply implies that Article 53 may have an internal, interpretative effect with respect to rights instruments under the jurisdiction of the European Court of Human Rights.
In the Handyside case against the UK from 1976, concerning pornography and freedom of expression, another aspect of Article 53 surfaced.93 The applicant argued that the measures taken against him and his books could not have been "necessary in a democratic society" under Article 10(2), given the fact that the authorities had taken no action against the materials in other parts of the UK. Cleverly, the Court replied that Article 53 showed that the ECHR, "never puts the [...] the Contracting States under an obligation to limit the rights and freedoms [that the ECHR] guarantees. [ ...] The competent authorities in [other parts of the UK] may, in the light of local conditions, have had plausible reasons for not taking action against the book and its publisher. Their failure to act - into which the Court does not have to enquire [...] - does not prove that the judgment [against the applicant] was not a response to a real necessity, bearing in mind the national authorities' margin of appreciation." This combination of margin-of-appreciation arguments with Article 53 has not been seen since; the reasoning of the Court does not seem particularly compelling, at least in general, given the ideals of non-discrimination underlying the Convention and the rule of law.
In a few other judgments, Article 53 has been referred to in dissenting and concurring opinions of slight, if any, persuasiveness or illumination on the topic.94
Article 15 ECHR regarding derogation in time of war and other public emergency contains what some scholars see as a special expression of the general principle of Article 53 ECHR.95 Article 15(1) provides, inter alia, that the Contracting Parties may rely on the derogation clause only if the emergency measures taken "are not inconsistent with its other obligations under international law." This has been interpreted to mean that the European Court of Human Rights must satisfy itself that the emergency measures in question, even if they comply with the ECHR, do not plausibly violate other treaty obligations of the Contracting Party before the Court. But the Court has expressly stated that it cannot authoritatively resolve disputes about obligations of Contracting Parties under treaties other than the ECHR.96 In my opinion, the case law on Article 15(1) does not inform the interpretation of Article 53 ECHR. Article 53 is a negative statement that the ECHR does not purport to modify other obligations of the Contracting Parties, whereas Article 15(1) is a positive, direct statement that the Contracting Parties should also observe other obligations when they derogate from the ECHR in the special circumstances covered by Article 15.
The few scholars who have addressed Article 53 specifically generally agree that, in terms of positive law, the provision expresses a simple principle - namely, that the rights contained in the ECHR are minimum standards, and that in case of a conflict between a right in the ECHR with a national or international rule regarding the same right, the individual is entitled to protection under the most favorable provision.97 No one claims that Article 53 allows the Court to apply or enforce a more favorable provision found outside the scope of the ECHR, or that that Article 53 addresses a conflict between different human rights, e.g. the right to freedom of expression in another instrument and the right to a private life under the ECHR.98
In his short article on Article 53, Judge Jan de Meyer (who later referred to Article 53 in his dissent in the Open Door case) seems to wish for more. While he admits that Article 53 and its cousins in other conventions do not incorporate new rights or higher protection under their respective systems of protection, he finds that the underlying idea of such provisions is that it is impossible to define exhaustively all the rights of man. In a stream of natural law theory, de Meyer goes on to say that the human rights conventions "ne créent pas ces droits, qui sont inhérents à la nature humaine. Ils ne peuvent que les reconnaitre et tenter, tant bien que mal, de les définir. Ils ne peuvent que constituer l'expression plus ou moins réussie de principes généraux qui transcendent le droit positif et qui s'imposent même à défaut de tout texte de ce genre."99 De Meyer concludes, with reference to some of the cases mentioned above at note 84 concerning new inherent or broadened rights, and with reference to the human rights doctrine of the European Court of Justice, that the "laws" and "conventions," to which Article 53 refers, may legitimately serve as sources of general principles of law for the Court. De Meyer's understanding of human rights instruments in general, and the aim of Article 53 in particular, resembles some of the Ninth amendment theories under the United States Bill of Rights (see 3.4. below) although de Meyer does not mention the American Constitution.
Professor Emmanuel Decaux draws a distinction between the reference to domestic law and the reference to other international agreements of Article 53. As to the reference to domestic law, Decaux briefly considers various possibilities and concludes that Article 53 has no practical significance. The provision simply states the obvious, namely that the enumeration of rights in the ECHR can never by itself justify, through a reasoning a contrario, the restriction of wider-ranging rights protected by other legal rules. Article 53 is in effect, he implies, "un vide juridique." As to the reference to other international agreements, Decaux observes that Article 53 expresses a special version of the interpretative principle regarding successive treaties (see Article 30 of the Vienna Convention of the Law of Treaties). The national judge in a legal system where both the ECHR and other human rights treaties are applicable will find (fairly evident) guidance in Article 53 as to which of two different standards on the same subject matter to apply. For the international judge, in casu, the European Court of Human Rights, it follows from the Convention system that he or she can apply only the ECHR. There is no incorporation by way of Article 53, even if the Court may find inspiration in other instruments.100
The case law and theory show that the somewhat mysterious Article 53 ECHR has spawned quite a number of imaginative interpretations from individual applicants, from Contracting Parties, and from dissenting Judges. Apart from the Handyside case and the Ekbatani and Burghartz cases, however, the Court has never expressly relied on Article 53, and it has never given any consolidated indication of how the Article may be used outside the rather special and limited circumstances of these three cases. The possible negative conclusions that may be drawn on the basis of all the "failed" theories will be discussed further in relation to the possible legal implications of Article 53 of the Charter in the EU context (see chapter 4 below).
All the Members of the EU are States Parties to the major international human rights conventions under the auspices of the United Nations.101 These instruments have some relevance in the jurisprudence of the European Court of Justice.102 The cornerstones in this set of conventions are the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), both from 1966. The equivalent of Article 53 of the Charter in these two conventions is Article 5(2) of both instruments. It reads:
"There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent."103
The wording of this provision is rather different from both Article 53 of the Charter and Article 53 of the ECHR. Most notably, the language is more overtly political by describing any attempts to use the Covenants to restrict other rights as an abuse or absence of good faith (note the word "pretext"). This gives the provision a more moral and less legal tenor. Note also that there is no use of the words "be interpreted" or "be construed," which makes the language more direct.
The marked difference of style, however, does not entail any difference in legal meaning. Article 5(2) has been interpreted by commentators in much the same way as Article 53 ECHR. Article 5(2) is described by scholars as an interpretative principle meant to prevent national courts from relying on the restrictions of the Covenant when applying broader rights of a different origin. Likewise, Article 5(2) does not imply incorporation of national rights or rights recognized under other conventions.104 Furthermore, an obvious, but relevant, point has been made that Article 5(2) does not in itself prevent a State Party from adjusting more protective national rules or withdrawing from international conventions affording a higher level of protection.105 The comments to the ICESCR also cover the ICCPR.106
In Kindler v. Canada from 1993, a non-binding decision by the UN Human Rights Committee (HRC) on an individual complaint (communication) under the ICCPR, Article 5(2) was invoked in a highly creative manner by a dissenting Member of the Committee.107 The facts of the case were similar to the ECHR case, Soering v. UK, concerning extradition to the United States of a person who would be charged with a capital offence, from a country that had abolished the death penalty.108 A majority of the 18 member expert committee found that Canada would not violate the ICCPR by extraditing Mr. Kindler to the United States. Mr. Lallah of the Committee, former Chief Justice of Mauritius and until recently the UN Special Rapporteur for Burma (Myanmar), joined by one other Member, submitted a detailed dissenting opinion. He argued that "Article 5(2) would, even if Article 6 [on the right to life] was given a minimal interpretation, have prevented Canada [where life is protected more extensively than in the United States] from invoking that minimal interpretation to restrict or give lesser protection to that right by an executive act of extradition though, in principle, permissible under Canadian extradition law." Notwithstanding the good intentions, this appears to be an unacceptable boot-strap approach to Article 5(2). The level of protection afforded to life by Canadian law, even if Canada itself did not impose the death penalty on criminals, did not exclude extradition to the United States. Under international law, Canadian courts have the final say on what level of protection domestic law provides, and their judgments should be treated as established facts by international adjudicators.109 Only if that level falls below the level of protection afforded by the applicable convention provisions regarding the right in question, as interpreted by the international adjudicators, could the international body legitimately find a violation of the convention.
The more recent and specialized UN human rights conventions also contain provisions similar to Article 53. Article 23 of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) from 1979 provides that nothing in the convention shall "affect any provisions that are more conducive to the achievement of equality between men and women which may be contained in the legislation of a State Party, or in any other international convention, treaty or agreement in force for that State." The structure is closer to Article 53 ECHR than to the two Covenants, but the language is more ambiguous.110 The UN Convention on the Rights of the Child (CRC) from 1989 contains an almost identical provision in Article 41, providing that nothing in the convention "shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in the law of a State party or international law in force for that State."111 A similar provision in the UN Convention against Torture (CAT) from 1984, Article 1(2), has a more limited scope and is simpler: "This article [which defines torture] is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application."112 Yet more examples of Article 53-like provisions from international and regional human rights instruments could be cited.113
Against this background, it seems justified to conclude that the meaning expressed by all these provisions in international and regional human rights instruments has attained the status of a general principle of public international law in the field of human rights.114 This finding is all the less daring given the obviously limited legal significance of the interpretative principle contained in such provisions, which is hardly distinguishable from the general principle that treaties should be interpreted in good faith (see Article 31(1) of the Vienna Convention on the Law of Treaties).
Given the political context of the Charter, including the accelerated debate on a constitutionalization and federalization of the EU, it seems worthwhile to take a glance at the United States - the federal state which serves as the eternal bogey or template, depending on the viewpoint, in the debate about a future federal Europe. The Ninth Amendment to the American Constitution, which forms part of the United States Bill of Rights from 1789, contains a provision similar to Article 53. It reads as follows:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
This sentence is known today as one of the most obscure and controversial provisions in the Bill of Rights.115 It has been given all kinds of names, such as "an opiate," "an inkblot," "a mystery," "an old constitutional jester," "a fountain of law" and a "Cinderella on the verge of taking center stage."116 The drafting history is relatively straightforward. Before and right after the adoption of the Constitution in 1787, the Anti-Federalists demanded that the Constitution be accompanied by a Bill of Rights which would restrain the powers of the Federal Government. The Federalists first argued against this idea, saying that it would be impossible - and legally dangerous - to try to enumerate all rights of man. It could lead people, and eventually judges, to believe that "natural rights" which were not placed in the list had been forfeited. Madison, the drafter of the Bill of Rights, saw some truth in this objection and, in what became the Ninth Amendment, attempted to solve the problem.
As an aside, it might seem ironic that in today's Europe it is the "Anti-Federalists" (e.g. the UK) who are reluctant to accept a binding "Bill of Rights" formalizing human rights constraints on the EU "Government," whereas the "Federalists" (e.g. Germany) strongly favor such an instrument. Perhaps it is not as ironic as it first seems when compared to the American experience. The European process of constitutionalization has evolved - and evolves - in a different, sometimes opposite, way compared to the American process. For one, the United States was founded on a strong Constitution, shortly thereafter consolidated with a Bill of Rights. The Bill of Rights arguably came to real life only after the Civil War and the advent of judicial activism. European judicial activism, including the gradual development of an EU human rights jurisprudence, has, by contrast, been a major driving force in the informal European constitutionalization almost from the beginning. European political activism and attempts at formal constitutionalization have been much slower and only gained some momentum in the late 1980s.117 It is against this background of almost reverse constitutionalization that the European "Anti-Federalists" regard the Charter as the sweetener for a bitter and dangerous pill of a federal Europe with a formal constitution. The "Federalists" see the Charter as a way to increase citizens' confidence in Union institutions and to install a new sense of purpose among the peoples of Europe.
The Ninth Amendment lived an extremely quiet life for its first 150 years. There were some suggestions in the early case law that the Ninth and the Tenth Amendment were merely affirmations of the enumerated limitations on federal powers listed in Article I of the Constitution. In the 1950s the Ninth amendment was roused from its slumber by a book called "The Forgotten Ninth Amendment," and gained its current fame with the Griswold case from 1965.118 In Griswold, the Supreme Court struck down a state law banning the sale and use of contraceptives by invoking a new right of privacy, which the majority based on a less-than-crystal-clear concept of "penumbras, formed by emanations" from a string of Amendments, including the Ninth. A concurring opinion by Justice Goldberg focused on the Ninth Amendment and suggested that it could support the protection of unenumerated rights, among them the right to privacy. Not surprisingly, the Ninth Amendment was invoked in thousands of cases after Griswold, though to little avail. The Court has preferred to use the due process clauses of the Fifth and Fourteenth Amendment to give life to rights not explicitly specified in the Bill of Rights, such as the right to procreate and travel. Certain aspects of the right to privacy (abortion rights) have been reaffirmed by some Justices with reference to, inter alia, the Ninth Amendment.119 The general attitude, however, is still either silence or rejection when the Ninth Amendment is invoked.
From a positive law perspective, what is then left of the Ninth Amendment? The leading constitutional scholar Laurence Tribe finds that the Ninth Amendment simply serves as a rule against cramped construction of rights and prohibits certain forms of arguments by negative implication. He rejects the notion of "Ninth Amendment Rights" as a common error, but stresses that the Ninth Amendment is, nonetheless, a vital rule "without which the Bill of Rights might have been more threatening than reassuring [...] and without which, therefore, the 1787 Constitution might not have lasted."120 A parallel might be drawn, if perhaps in less dramatic terms, to the political importance of Article 53 of the Charter as evidenced by the drafting history (see 2.6. above). Like the Ninth Amendment, Article 53 was clearly meant to calm fears about any diminishment of rights "retained by the people."
Professor Tribe's view of the Ninth Amendment as an interpretative rule supporting a wide, dynamic approach to human rights ties into some of the theories about Article 53 ECHR, as expressed in opinions by individual Judges of the European Court of Human Rights. It should be noted, however, that the European Court of Human Rights as such has never found it necessary or helpful to refer to Article 53 as the basis for such a style of interpretation. Another difference to note is the fact that the Ninth Amendment does not seem to have been discussed as a tool with which to solve cases of two colliding rights, e.g. the right to privacy, including abortion, under the federal constitution, and a right to life, including the unborn life, under a state constitution (compare the Open Door case). The reason is no doubt that the supremacy of federal law is unambiguously prescribed in the Constitution (cf. Article VI, Clause 2) and is not contested by any state courts or legislatures. The Supreme Court does draw some inspiration from evolving human rights standards among the several states when interpreting the federal constitution, most notably in cases regarding execution of the insane and mentally retarded and the Eighth Amendment prohibition of cruel and unusual punishment.121 This practice is not, however, based on the Ninth Amendment.
Notwithstanding the historical importance of the Ninth Amendment, it seems difficult to argue, based on the current case law of the Supreme Court, that the interpretative principle contained in the Ninth Amendment has much influence on the way the Bill of Rights is interpreted today. At his unsuccessful confirmation hearings in 1987, Supreme Court nominee Robert Bork, famously alluded that the Ninth Amendment was merely an inkblot. This reading does not seem wholly unwarranted, from a positivist perspective, but was obviously rather controversial in the American legal environment.
71 On the human rights policy of the European Parliament in general, see R. Rack and S. Lausegger, "The Role of the European Parliament: Past and Future," and K. Bradley, "Reflections on the Human Rights Role of The European Parliament," both in Alston (Ed.), note 5 above, pp. 801-837 and 839-858. See also the web site of the Parliament at http://www.europarl.eu.int, and note 74 below.
72 See [1977] OJ C103/1.
73 See [1984] OJ C77/33, Article 4. The draft Treaty also opened up for Community accession to, inter alia, the ECHR.
74 See [1989] OJ C120/51. As with other policy resolutions and initiatives by the European Parliament, the Declaration is a non-binding instrument. It has been invoked by plaintiffs in a few cases and was cited as inspiration in the opinion by Advocate General van Gerven in the Grogan case regarding abortion and freedom of expression, see Case C-159/90, SPUC v. Grogan, [1991] ECR I-4685. See also R. Bieber et al. (Eds.), Au nom des peuples européens - In the name of the peoples of Europe, (1996).
75 See also comments by Professor Joseph Weiler to Article 27 in R. Bieber et al. (Eds.), note 74 above, pp. 350-51, where one will find the origins of the author's suspicions about Article 53 of the Charter: "[Article 27 is an] ill-drafted provision [... which] may misleadingly suggest that the standard of protection of human rights within the field of Community law must always correspond to the "highest" standard of protection to be found in the European, or even international, space. [...] Clearly, Article 27 cannot compromise, for example, the overall principle of supremacy of Community law vis-à-vis Member State law."
76 See [1994] OJ C61/155, European Parliament's Draft Constitution for the European Union of February 10, 1994.
77 See ETS No. 5. The European Convention of Human Rights and Fundamental Freedoms was adopted in 1950 and entered into force in 1953. France joined the ECHR, as the last Member of the Communities, in 1974. On the ECHR in general, see, e.g., D.J. Harris et al., Law of the European Convention of Human Rights, (1995), P. van Dijk and G.J.H. van Hoof, Theory and Practice of the European Convention on Human Rights, (1998), and J. Frowein, Europäische Menschenrechtskonvention: EMRK-Kommentar, (1996).
78 The Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948, on which the ECHR was based to a large extent, does not contain a provision similar to Article 53 ECHR. Neither do the Geneva Conventions on humanitarian law from 1949.
79 Article 53 used to be Article 60, before the ECHR was amended by the 11th Protocol, which restructured the control machinery of the ECHR (see ETS No. 155). The Protocol entered into force on November 1, 1998. The title of Article 53 is a new element (ex Article 60 did not have a title) and was inserted to make sure that all provisions had titles.
80 See E. Decaux, "Article 60," in Pettiti (Ed.), La Convention Européenne des Droits de l'Homme - Commentaire Article par Article, (1995), p. 897 with references.
81 See ETS No. 35. The Charter was revised in 1996 (see ETS No. 168), a revision which entered into force in 1999. As of March 2001, all the Members of the EU (except Germany and the Netherlands) are signatories, but only France, Ireland, Italy and Sweden have ratified the Revised Charter. The latitude towards reservations to the Revised Social Charter is very wide, almost making the Charter an à la carte menu. Article 32 from the original Charter is called Article H in the revised Charter, but its wording is unchanged.
82 For general reference on the European Social Charter, see D.J. Harris, The European Social Charter, (1984, 2nd ed. 2000). Article 32 is briefly mentioned at p. 32 of the first edition.
83 See Commission decisions in the following cases against Greece, which involved claims relating to the European Social Charter and the ICESCR: Markoupolou et al. v. Greece, App. 20665/92, 20666, 20668, 21732, 21991-92, 21991, 21999, and 22219/93, all decided on April 6, 1992, and M.K. et al v. Greece, App. 20723-24/92, 22213-18 and 22220-27/93, all decided on December 1, 1993. Commission decisions dismissing applications were binding and final and are as such considered authoritative precedents. Commission decisions were not published systematically but are publicly available, along with all the judgments of the Court, at the web site of the European Court of Human Rights (http://www.echr.coe.int/hudoc.htm).
84 Decaux, note 80 above, refers to many such cases in his article on Article 53, i.a., Leander v. Sweden (1987), A-116, Soering v. UK (1989), A-161, Costello-Roberts v. UK (1993), A-247-C, and Marckx v. Belgium (1979), A-31, and warns against, what he sees, as a tendency to regard other treaties as almost material sources of law for the Court. On the relevance of domestic law as a source of inspiration for the Strasbourg Court, see note 91 below.
85 See Glasenapp v. FRG, (1986) A-104, para. 48, and Kosiek v. FRG, (1986), A-105, para. 34. The judgments, including the reasoning based on the comparison with the ICCPR, were much criticized, since what was at issue was freedom of expression and association and not a right of access to public service. After the end of the cold war, the decisions were all but reversed in Vogt v. Germany, (1995), A-323.
86 See Open Door Counseling v. Ireland, (1992), A-246, paras. 78-79. One year earlier, the ECJ had decided a very similar case, where the individuals relied on the freedom to provide services; the ECJ sidestepped the difficult issue of necessity by concluding that the Treaty provision on services did not apply to the facts as presented, see note 74 above and note 165 below about the Grogan case.
87 See Jersild v. Denmark, (1994), A-298, paras. 21, 27 and 30. The two dissenting opinions referred to were by Judges Ryssdal, Bernhardt, Spielmann and Loizou, and by Judges Gölcüklü, Russo and Valticos.
88 See Gustafsson v. Sweden, (1996), Reports 1996-II, Vol. 9, para. 53 and para. 12 of the dissenting opinion by Judge Martens. In the field of Community law, the ECJ has addressed the issue of positive obligations in Case C-68/95, Port GmbH, [1996] ECR I-6065, where it held, as dicta, that the failure by Community institutions to take action to prevent violations of fundamental rights could be sanctioned by the Court. Compare Case C-265/95, Commission v. France (Strawberries), [1997] ECR I-6959 involving blockades against imports. In that case, France was found to have violated Article 28 (ex Article 30) TEC through government inaction. The Court did not discuss rights of collective labor action, which caused some concern among European labor unions.
89 See Golder v. UK, (1975), A-18.
90 Another dissenting judge in Golder, Judge Zekia, supported this view and also referred to Article 53 ECHR finding that it "keeps intact such human rights as are provided by national legislation. Right of access being a [national] human right is no doubt included in the human rights referred to in Article [53]. This in a way fills up the gap for claims in respect of which no specific provision for right of access is made in the Convention." Judge Zekia wrote a similar dissenting opinion with reference to Article 53 in the earlier Wemhoff v. FRG (1968), A-7.
91 See D.J. Harris et al., note 77 above, pp. 6-11, and van Dijk and van Hoof, note 77 above, pp. 74-80. In his article on Article 53, Judge Jan de Meyer sees the Golder case and other similar cases in the light of Article 53 as a provision which may lend support to the concept of inherent rights, note 97 below, pp. 127-128.
92 See Ekbatani v. Sweden, (1988), A-134, para. 26, and Burghartz v. Switzerland, (1994), A-280-B, paras. 22-23. In Maaouia v. France (2000), a concurring opinion of Judge Costa, joined by Judges Hedigan and Pantiru, relied on this principle and referred to Article 53 (judgment not yet reported but available through the web-based database).
93 See Handyside v. UK (1976), A-24, para. 54. A similar case came before the ECJ three years later where the claim was based not on freedom of expression but on the EC Treaty provisions on free movement of goods, see Case 34/79 Henn and Darby [1979] ECR 3795. The ECJ was confronted with the same argument (that obscene materials were in free circulation in parts of the UK) and came out as the European Court of Human Rights did in Handyside, by finding (somewhat outside its jurisdiction) that there was generally "no lawful" trade in the goods in the UK. The case was decided before the Court asserted its power of human rights review over national measures derogating from the fundamental freedoms, see note 13 above about the ERT case.
94 See Nilsen v. Norway (2000, not yet reported), an Article 10 case regarding defamation of a professor who had criticized the police for excessive violence; a dissenting opinion by Judges Kûris, Türmen, Str?znická and Greve, referred to Article 53 to make the somewhat strained point that persons such as the professor should be protected against defamation in order not to hamper the aim of the UN Convention Against Torture (CAT). In De Wilde v. Belgium (1972), A-14, a collective separate opinion of Judges Holmbäck, Rodenbourg, Ross, Favre and Bilge stated, as a rather obvious but perhaps useful dictum, that if Belgian legislation provided for more protection of detained persons than required by Article 5 ECHR, it followed from Article 53 that the Belgian authorities should apply Belgian law. See also concurring opinion by Judge Morenilla in Nortier v. the Netherlands (1993), A-267, arguing that Article 53 supported the idea that the fair trial guarantee in Article 6 should be applied to juvenile proceedings in the same way as adult proceedings.
95 See D.J. Harris et al., note 77 above, pp. 502-3, van Dijk and van Hoof, note 77 above, pp. 740-41, and F.G. Jacobs and R.A. White, The European Convention on Human Rights, (1996), p. 320.
96 The cases have mainly concerned British emergency measures in Northern Ireland and whether they satisfied an additional requirement of Article 4 ICCPR that the existence of an emergency must be "officially proclaimed." In Brannigan and McBride v. UK (1993), A-258-B, the Court found "that it is not its role to seek to define authoritatively the meaning of the terms "officially proclaimed" in Article 4 [ICCPR]. Nevertheless it must examine whether there is any plausible basis for the applicant's argument in this respect." The Court found that there was no such "plausible claim" since a Cabinet Minister had made a public statement, which was "well in keeping with the notion of an official proclamation," paras. 72-73. See also the Commission's report in Cyprus v. Turkey (1976), 4 EHHR 482, at p. 552.
97 The main articles are two shorter pieces by former Judge of the European Court of Human Rights, Jan de Meyer, "Brève réflexions a propos de l'article 60 de la Convention européeenne des droits de l'homme," in Matscher and Petzold (Eds.), Protecting Human Rights: The European Dimension - Studies in Honour of Gerard J. Wiarda, (1988), and by the French scholar, Emmanuel Decaux, "Article 60," (1995), a chapter in a commentary to the ECHR, see note 80 above. Standard works on the ECHR (see note 77 above) hardly mention Article 53.
98 A Committee of Experts under the Council of Europe examined the co-existence of the ECHR and the ICCPR in 1967-69. Article 53 and its counterpart in the ICCPR, Article 5(2), see below, were said to have the effect of excluding that provisions in one instrument may limit the other and that restrictions allowed by one treaty should not be invoked to limit the rights under the other treaty. The Committee also concluded that this does not mean that the most favorable provision of one treaty is automatically incorporated into the other system of protection. See de Meyer, note 97 above, p. 126.
99 De Meyer, note 97 above, p. 128. Compare a similar statement on the nature of human rights recently made by Judge of the European Court of Justice, Melchior Wathelet, see note 151 below.
100 See Decaux, note 80 above, pp. 897-903. On a rather special point of international relevance, Decaux questions whether a French reservation to the ICCPR, which declares that certain rights will (only) be applied in accordance with the corresponding ECHR provisions, is compatible with Article 53 combined with the similar provision of the ICCPR, Article 5(2). The case, it would seem, does not depend on Article 53 ECHR or Article 5(2) ICCPR (the reservation could easily be implied to also relate to these provisions), but rather whether the reservation is compatible with the aim and purpose of the treaty to which it is made, cf. Article 19 of the Vienna Convention on the Law of Treaties. Good arguments could certainly be made, also with reference to the importance of Articles 53 and 5, that that is not the case.
101 See status of ratification of the principal human rights treaties as of March 28, 2001, at the web page of the United Nations High Commissioner for Human Rights (http://www.unhchr.ch/pdf/report.pdf). Greece joined the ICCPR as the last EU Member in 1997. Not all Member States have signed or ratified all the optional protocols to the Conventions.
102 As to the relevance of UN conventions under EU law, see, e.g., Grant v. South-West Trains, Case C-249/96 [1998] ECR I-62, regarding labor discrimination based on sexual orientation, where the Court confirmed that the ICCPR is one of the international instruments the Court takes into account under its fundamental rights jurisprudence. A non-binding and unreasoned opinion from the UN HRC, however, according to which the term "sex" should include sexual orientation under the ICCPR, was not persuasive. "Such an observation, which does not in any event appear to reflect the interpretation so far generally accepted of the concept of discrimination based on sex which appears in various international instruments concerning the protection of fundamental rights, cannot in any case constitute a basis for the Court to extend the scope of Article 119 [now Article 141] of the Treaty. That being so, the scope of that article, as of any provision of Community law, is to be determined only by having regard to its wording and purpose, its place in the scheme of the Treaty and its legal context," para. 47.
103 See Article 5(2) ICCPR (999 UNTS 171). Article 5(2) of the ICESCR (993 UNTS 3) differs only slightly from Article 5(2) ICCPR in that it refers to "any country" and not "any State Party to the present Covenant." The difference does not seem to have any legal significance.
104 See comments by L. Sohn, "Human Rights Law," 12 Tex. Intl. L. J. 129 (1977), dubbing Article 5(2) "the most-favorable-to-individual clause" at p. 137, S. Joseph et al., The International Covenant on Civil and Political Rights, (2000), p. 8, M. Nowak, The UN Covenant on Civil and Political Rights: CCPR Commentary, (1993), p. 100, and D. McGoldrick, The Human Rights Committee, (1991), p. 19, who describes Article 5(2) as a "saving provision."
105 See T. Buergenthal, "To Respect and to Ensure: State Obligations and Permissible Derogations," in L. Henkin (Ed.), The International Bill of Rights, (1981), pp. 89-90, at p. 90 with references in footnote.
106 See, e.g., M. Craven, The International Covenant on Economic, Social and Cultural Rights, (1995), p. 281. The author sees a special problem with Article 5(2) ICESCR and the right to strike, in so far as the ICESCR, unlike the ICCPR, does not contain a derogation clause, see pp. 283-84.
107 See Views of the HRC on Communication No. 470/1991, Kindler v. Canada, November 18, 1993, (Document CCPR/C/48/D/470/1991, available at the web page of the UN High Commissioner for Human Rights, http://www.unhchr.ch/tbs/doc.nsf). Similar dissents occurred in Ng v. Canada (Communication No. 469/91) and Cox v. Canada (Communication No. 539/93).
108 See Soering v. UK, note 84 above. Article 53 ECHR is not seen to have been invoked in this case.
109 See, e.g., Ian Brownlie, Principles of Public International Law, (1998, 5th ed.), pp. 39-41 ("Interpretation of their own laws by national courts is binding on an international tribunal") with references to PCIJ and ICJ case law in note 47.
110 See 1249 UNTS 13. The ambiguous expression "more conducive to the achievement of equality between men and women" was connected to the difficult issue of affirmative action. Certain delegations, inter alia, the American, objected to wording such as "more favorable to women" because it would go beyond the provision allowing only for temporary affirmative action, CEDAW Article 4. See L.A. Rehof, Guide to the Travaux Préparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination against Women, (1993), pp. 216-222.
111 See 1577 UNTS 3. Decaux, note 80 above, finds the innovative reference in CRC to "international law" overly broad and vague, p. 898.
112 See 1465 UNTS 85.
113 See Article 10 of the UNESCO Convention against Discrimination in Education ("This Convention shall not have the effect of diminishing the rights which individuals or groups may enjoy by virtue of agreements concluded between two or more States, where such rights are not contrary to the letter or spirit of this Convention"), Article 29(b) of the Inter-American Convention of Human Rights ("No provision of this Convention shall be interpreted as: [...] b. Restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party"), and Article 75(8) of the 1977 Additional Protocol to the Geneva Conventions of 1949 ("No provision of this Article may be construed as limiting or infringing any other more favourable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1").
114 On general principles of public international law, see Article 38(c) of the Statute of the International Court of Justice and Ian Brownlie, note 109 above, pp. 18-19. One could also argue that the interpretative principle is part of customary law on a par with most of the provisions in the Vienna Convention on the Law of Treaties. But with Brownlie's words: "What is clear is the inappropriateness of rigid categorization of the sources," p. 19. General principles and customary rules of public international law are sources under EU law, although rarely invoked before the Court, see, e.g., Case C-162/96, Racke, [1998] ECR I-3655, paras. 24 and 50, (concerning the rebus sic stantibus principle) and CFI Case T-102/96, Gencor v. Commission, [1999] ECR II-753, para. 50 (concerning the territoriality principle).
115 This section is primarily based on L. Tribe, American Constitutional Law (1988, 2nd ed.), pp. 774-777, 962, 1308-1309, R. Caplan, "The History and Meaning of the Ninth Amendment," 69 VA. L. Rev. 223 (1983), K. Palmer, Constitutional Amendments: 1789 to the Present, (2000), pp. 203-219, J. Vile, Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789-1995, (1996), pp. 220-221, and R. Newman (Ed.), The Constitution and Its Amendments, (1999), Vol. 3, pp. 131-134. Other works consulted include R. Berger, "The Ninth Amendment," 66 Cornell L. Rev. 1 (1980), and M. DeRosa, The Ninth Amendment and the Politics of Creative Jurisprudence: Disparaging the Fundamental Right of Popular Control, (1996).
116 Compiled from the sources in note 115 above. The quotes pertain to the following persons: Edmund Randolph ("an opiate"; 1789); Justice Jackson ("a mystery"; 1955); John Ely ("an old constitutional jester"; 1980); Charles Black ("a fountain of law"; 1981); Robert Bork ("an inkblot"; 1987); and Stanford Levinson ("Cinderella on the verge of taking center stage"; 1988).
117 On the European process of constitutionalization, see J.H.H. Weiler, note 7 above, pp. 10-101. The author notes that some federations are created by integration, others by devolution, p. 83. It will probably be fair to say that both integration and devolution will have played a role if the EU eventually transforms itself into a formal federation.
118 See Griswold v. Connecticut, 381 U.S. 479 (1965).
119 See opinion by Justices O'Connor, Kennedy and Souter in Planned Parenthood v. Casey 505 U.S. 833, (1992). See also Justice Burgers' opinion in Richmond Newspapers v. Virginia, 448 U.S. 555, (1980) on public access to trials.
120 L. Tribe, note 115 above, pp. 774-777, see especially footnote 14. Numerous other theories have been offered, from the vastly expansionist to the extremely restrictive. The theory of R. Caplan, note 115 above, is illuminating in the EU context. Based on close historical analysis, Caplan concludes that the Ninth Amendment is simply a recognition that rights protected by state constitutions will continue in force until modified or eliminated by state enactment, by federal preemption or by a judicial determination of unconstitutionality. In an epilogue, the author observes that the Ninth Amendment has been eclipsed by the twin forces of constitutionalization and federalization. States used to be the primary defenders of individual rights but from the beginning of the 20th century, the federal level took a more and more active role as the individual rights provider and enforcer, both through legislation and judicial review of state legislation. A similar turn of events might also happen over time in the EU.
121 See Penry v. Lynaugh, 492 U.S. 302 (1990), about the mentally retarded, and Ford v. Wainwright 477 U.S. 399 (1986), about the insane. The Supreme Court refers to "the evolving standards of decency that mark the progress of a maturing society," and especially looks to legislation enacted by the state legislatures as "the clearest and most reliable evidence."