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Even if international lawyers like to think and often strive to prove that all provisions in a given instrument have some independent legal meaning and effect, that is not always the case. Some provisions simply serve political purposes as ex tuto statements of the self-evident.
Based on the drafting history of Article 53, the comparative analysis of similar provisions in other instruments, and the discussion of real and imagined theories about its independent legal significance, I submit that Article 53 is such a provision. It is a politically useful inkblot meant to serve as an assurance to Member States, and eventually the electorate, that the Charter does not replace national constitutions and that it does not, by itself, threaten other, better or different human rights. The legal significance of Article 53 of the Charter is identical to that of Article 53 ECHR. And, by its political nature and purpose, it is similar to, e.g., Article 17(1) TEC which provides that Citizenship of the Union shall complement and not replace national citizenship. Even had this provision not been inserted in the Treaty, nobody could seriously have argued that the national citizenships had been replaced by the Union Citizenship. But the provision served a useful political purpose.
Article 53 was destined to be included in the Charter, even if its final version bore little resemblance to the first draft from the Secretariat. The prior draft instruments from the European Parliament and all relevant international human rights conventions, most importantly the ECHR, made it practically impossible to forego this habitual inkblot. As Decaux characterizes such provisions: "Il s'agit d'une formule rituelle en matière de droit des traités, introduite par un excès de prudence diplomatique."167 Habits, rituals and excessive prudence did play a role during the drafting even if the Convention, by its composition and working method, was markedly different from a traditional diplomatic conference.
Excessive prudence, confusion and the nature of the proceedings gave this habitual inkblot a slightly disfigured form compared to its cousins in other instruments (see 5.2. below for suggestions on how the text could be improved). The deformities of Article 53 have little legal significance, but they add to the perplexity surrounding the Charter as a new constitutional instrument in the complex Community legal order and should have been avoided. It is especially regrettable in this connection that the institutional concerns about supremacy of Community law were never brought out into the open. Not only would this have corresponded better with the idea of an open and inclusive drafting process, but a discussion in the Charter Convention of this fundamental issue, led by experts and observers from various institutions, could perhaps also have cleared up some of the misunderstandings and led to a more consistent wording.
But even if Article 53 had been shaped exactly like Article 53 ECHR, it would probably still have caused confusion, as we have seen in the case law of the European Court of Human Rights and the American experience with the Ninth Amendment in the second half of the 20th century. Such provisions are inkblots not only in the sense that they have no particular legal significance or necessity but also in the Rorschachian sense of the expression. By being almost legally meaningless, they serve as an invitation to a plethora of interpretations and theories. We cannot accept as lawyers that it is just an inkblot - we have been encouraged by the psychotherapist (disguised as the legal discipline) to search for meaning and use our creativity. As with Rorschach's inkblots, our responses, conjured up with the help of our profession, may reveal deeply held convictions, fears and desires depending on the idiosyncrasies and preoccupations of the reader.
In the Community context, four possible reactions to the inkblot have been identified. First, the reaction of the "Guardians of the Treaties," used in a broad sense not only limited to the Commission, who fear for supremacy of Community law, the heart and soul of the Community legal order, constantly under fire from hostile national courts. Second, the reaction from the many actors and scholars in the field of human rights who deep down nourish a natural law concept of human rights and who may see in Article 53 a fountain of new rights. Third, the reaction of the "sovereigntists" (perhaps not likely in the Community context but at least theoretically possible) who may wish to see Article 53 as a cap on judicial activism and an end to dynamic interpretations. And fourth, the reaction of any unfortunate Member State finding itself before the Court on the wrong side of a conflict between two (seemingly) incompatible human rights norms, one protected by the Charter, the other only protected by the constitution of the Member State, who will find hope in Article 53 as a mechanical way to escape the dilemma.
The beauty or ugliness of Article 53 is surely in the eyes of the beholder. The theory of a challenge to supremacy of Community law might one day be tested before a national court. But it is not likely to prevail. Arguments against supremacy based on Article 53 are far from compelling, even for a "Community-hostile" national judge. At the end of the day, respect for Community law and international law supremacy depends on national law and jurisprudence, not on Community law or international law.
Much will depend on how (if at all) the Charter is transformed into
binding EU law. One method could be simply to incorporate all the substantial
rights into the Treaties, excluding the horizontal provisions (Articles 51-54)
and the preamble. This would be in line with the expressed desire to simplify
and consolidate the Treaty acquis leading up to the next IGC and would
solve the perceived problems relating to Article 53 without having any adverse
legal effects (given the arguably empty nature of Article 53). The political
assurance that the catalogue of rights will not replace national bills of
rights could be written into a revised version of Article 6(2) in
straightforward language ad modus Article 17 TEC on the European
Citizenship. The same could be done with the reference to the ECHR as the
minimum standard now in Article 52(3) of the Charter.168
An obvious
alternative to this method of incorporation would be to attach the entire
Charter, as is, as an appendix to the Treaties, and include a reference in a
revised version of Article 6(2) TEU. Assuming that there is sufficient
political will to make the Charter binding, but not to adopt a European
Constitution, this solution might be attractive, also to the more symbolically
inclined Member States given the visibility of a separate bill of
rights.169
Unavoidably, the question will come up whether to revise individual provisions of the Charter based on the popular feedback in the Member States, scholarly advice and the preliminary use of the instruments by the ECJ and courts in Member States. The usual Pandora's-box arguments will be raised against re-tabling the Charter for revision by the IGC. Concerns about undermining the legitimacy of the document will probably also be voiced.170 But problems might surface involving more serious concerns than those relating to Article 53. These may make a demand for revisions impossible to resist. If that happens, all provisions would potentially be subject to revision.
In that case, how could Article 53 be improved and clarified? First of all, the provision should give more direct expression to the intention underlying the Article as evidenced by the drafting history. Inspiration could perhaps be found in Articles 5(2) of the ICCPR and the IESCR. There the message is clear: other rights, whether provided for by domestic law or other international conventions, shall not be restricted "on the pretext" that the Covenants do not recognize such rights or that they recognize them to a lesser extent.
To be more true to the customary drafting of Article 53-like provisions, and to eradicate doubts about the scope of the provision, the qualification that "all" Member States must be contracting parties to an international convention before Article 53 is applicable should be deleted. The reference to "Member States' Constitutions" should be replaced with "domestic law." The reference to Union law may cause confusion when the Charter becomes part of Union law and should be deleted along with the specific reference to the ECHR. The provision should use time-neutral language like other similar provisions, so that "recognised" would be replaced by "recognised now or in the future," and "to which the [EU, EC and Member State] are party" should be changed to "to which [they] are or become party."
And finally, the "in their respective fields of application" clause, the illegitimate child of excessive prudence and drafting behind closed doors, should be deleted. It is illogical and only causes confusion.
167 See Decaux, note 80 above, p. 900.
168 Whether the principle of supremacy should be expressly provided for as part of the Treaty revision exercise does not depend on how the Charter is dealt with - but it might be worth considering in the name of transparency. For some Member States, however, it would raise insurmountable legal and political problems to codify the supremacy principle.
169 A third option could be to adopt the Charter as a piece of secondary legislation. Most likely, this is not a politically attractive solution and would furthermore raise the intricate question of what, if any, provision in the Treaties, as they stand, could provide the necessary legal basis for such a measure. See notes 6 and 19 above with references to Opinion 2/94 on EC accession to the ECHR and articles by Weiler and Alston and Weiler and Fries.
170 Member of the Convention Andrew Duff (MEP), note 14 above, has pointed out that the Charter lacks a provision on amendments and should have one, which should make sure that any revisions are carried out in accordance with the same method used for drafting the Charter, p. 25.