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We now turn from the past to the present. We have seen that the Charter was promulgated at the Nice Council in December 2000. But what is the Charter? As Telkens perceptively reminds us, "[t]he drafting of a text of law, all the more so of a text of fundamental rights, is the result of a subtle reasoning between precision and intelligibility, concision and extension."16 The English language text of the Charter contains fewer than 3,500 words. It is elegantly conceived, beautifully drafted, and a masterly combination of pastiche, compromise and studied ambiguity. I shall concentrate here only on the latter elements. To understand the nature of these compromises and ambiguities, it is useful to examine a little more systematically what different interests saw a Charter as furthering during the course of its conception, gestation and birth. The following paragraph provides a partial list of what some hoped for.
The Charter could address the expansion of the Community to encompass the former Communist central and eastern European states where human rights were seen to need underpinning.17 The Charter could address the perceived need to secure the greater effectiveness of existing measures in the social rights field. The developing rhetoric of a "peoples' Europe", emphasising a common European citizenship, should result in a more formalized statement of citizens' rights. The fear in some quarters that the ECHR institutions might prove unable to handle the effective implementation of human rights in Eastern Europe and might become weakened more generally as a result meant that the Community should have its own Charter of Rights and not be dependent on the ECHR. The ECHR was, in any event, somewhat out-dated and in need of a revamping which would be impossible within the Council of Europe, given its decision-making structure. The need to increase the legitimacy of the increasing competence of the Community/Union in areas where human/social rights implications arise, such as in the context of justice and home affairs,18 and monetary union (with its potentially adverse effects on social spending),19 especially as more issues became subject to majority voting, emphasised the need for a clear statement of rights that could be seen as counterbalancing greater economic integration. The human rights position in some existing Member States was seen as unstable, with growing right-wing parties and increasing racism; an EC/EU Charter of Rights could provide the basis for concerted action at the Union/Community level against these developments. There was an appearance of inconsistency and double standards as the Community/Union required adherence to human rights norms by applicants for membership and other third-party states to which the Community/Union has not clearly bound itself. There was an uncertain legal basis for existing human rights activity by the Commission and Council; a report had noted the "embarrassing realisation that in this field the Community has had to act by stealth and questionable constitutional means"20 The globalisation of the European economy was seen by some as leading to adverse social effects inside and outside the Community, contributing to the demand for social rights to be better protected; the Charter could address this problem. A Charter of Rights could deal with the apparent inconsistency of different human rights standards across the three Pillars of the Union. There was a lack of clarity under the existing Treaties as to the status of the ECHR, the Council of Europe Social Charter, and the ILO Conventions, with different human rights norms being given apparently different weights in different contexts; a Charter could bring some greater consistency to treaty interpretation. The absence of one single source that individuals could point to as containing a coherent, integrated and explicit list of rights applicable in the Community context was a major failing when the Community/Union was moving towards conceiving itself as a "constitutional" unit. There was a perceived need to underpin the effectiveness and legitimacy of the ECJ's human rights jurisprudence, if it was to continue to provide an effective check on administrative and legislative activity at the Community level.21
There was, in other words, a plethora of different justifications brought forward at various times. It will be clear that these justifications often point to entirely different models of a human rights Charter.
So too, there were also clear but different pressures limiting the type of Charter that would develop,22 complicating matters further. Some saw the Charter as a potential threat to national interests and economic growth. Others saw it as an undesirable example of the creeping constitutionalization of Europe. Yet others worried about the effects of the Charter on other organizations and systems, in particular that of the European Convention on Human Rights. Some considered it as intending to give, by stealth, greater competence to European institutions in areas from which they had previously been excluded. Arising from these concerns, several limits emerged in the drafting of the Charter. The Charter should adequately reflect existing national constitutional traditions. The Charter should respect the need for subsidiarity. The Charter should recognise the desirability of diverse conceptions of human rights. The Charter should not be legally binding. The Charter should not threaten the ECHR system. The Charter should not expand the range of rights protections already guaranteed.23 The Charter should not place unacceptable limits on the need to continue the liberalisation of the European and national economies.
The ambiguity of what the Charter was for and the need for compromise in its drafting were, therefore, at the heart of the drafting process and this is evident both throughout the text of the Charter,24 and in the ambiguity of its "promulgation." (What, exactly, does "promulgation" mean in this context?) The nature of the compromise can most clearly be seen in the Preamble to the Charter25 but, as many commentators have implied since its promulgation, the Charter text itself is also many different things to many different people. It is not legally binding, but has legal effects, and it was drafted "as if" it were legally binding. It updates the European Convention on Human Rights, but is consistent with it.26 It gives pride of place to the ECHR, but doesn't exclude many of the other relevant European rights texts. It doesn't mention the jurisprudence of the European Court of Human Rights in the text of the Charter, but it does in the Preamble.27 There is a detailed explanatory memorandum that is of considerable importance in understanding the text of the Charter prepared for the Presidium that acted as the secretariat for the drafting Convention, but it is not authoritative. The Charter places considerable importance on the role of national constitutions, but doesn't give them over-riding importance. It is European in orientation, but recognises the importance of human rights as international and universal. It accepts the indivisibility of political, civil, economic, social and cultural rights, but it appears to distinguish significantly between them in the way they are drafted, in the ambit of the exceptions that apply to them, and in their enforceability. It is primarily addressed to the Community/Union institutions and the Member States when "implementing" European law, but it includes rights that only Member States have responsibility for. It places the citizen at the heart of European integration, but it would appear to accept the very limited access to European courts that European law currently allows to aggrieved citizens. It reflects the fundamental rights jurisprudence of the ECJ, but it restates it. It acts as a "showcase" of existing rights, but is neither a complete exposition of the rights the Treaty requires the Community to uphold, nor limits the discretion of the ECJ to develop further rights.28 And so on.
Even the process by which the Charter was drafted was a considerable compromise. It was (especially by comparison with the Intergovernmental Council decision-process) extraordinarily open and participative, with almost instantaneous access to papers on the Internet and open meetings at which civil society could press its views. We can see the process of drafting the Charter, therefore, as an open and inclusive process, one that brilliantly combined representative democracy with more participatory forms of democracy and unparalleled access to the process of European decision-making?29 However, we can also view the drafting of the Charter as one where a relatively narrow set of interests dominated proceedings in practice, and the secretariat (drawn from the Council of Ministers bureaucracy) pulled the strings. Indeed, de Búrca concludes, "this was not to be a genuinely participative process but one which, albeit deliberative in nature, was to be composed only of institutional representatives from the national and European level."30 She later points to "the secretariat to the convention body, which was drawn mainly from the general secretariat of the Council," as "[o]ne of the less obvious but nonetheless significant influences on the drafting of the Charter". 31
The point of this part of the paper, is, I hope, already apparent: the question of what we should do with the Charter depends significantly on what we think the Charter is currently, what we think it is for, and the legitimacy of the drafting process. In many significant respects we do not really know what it is. There are significant differences of opinion as to what it is for. And there are very different views as to the legitimacy of the process of drafting. We are, therefore, in the position of considering options, and perhaps even shaping the agenda for future debate, in a state of considerable uncertainty about the implications of the Charter as currently drafted, and lacking a consensus on its democratic legitimacy. But that is hardly a novel state of affairs in the development of the Community.
16 Françoise Tulkens, Towards a Greater Normative Coherence in Europe/ The Implications of the Draft Charter of Fundamental Rights of the European Union, 21 Human Rights Law Journal 329 (2000), p. 331.
17 Editorial Comments: The EU Charter of Fundamental Rights still under discussion, 38 Common Market Law Review 1 (2001), pp. 5-6.
18 Tim Eicke, The European Charter of Fundamental Rights - unique opportunity or unwelcome distraction, [2000] European Human Rights Law Review 280 (2000), p. 285.
19 Aalt Willem Heringa, Editorial: Towards an EU Charter of Fundamental Rights?, 7 Maastricht Journal of European Law 111 (2000), p. 285.
20 "Leading by Example", supra note 10, p. 30.
21 António Vitoríno, The Charter of Fundamental Rights as a Foundation for the Area of Freedom, Security and Justice, Exeter Paper in European Law No. 4 (Centre for European Studies, University of Exeter, 2001), p. 13.
22 See, e.g. Elizabeth Wicks, "Declaratory of Existing Rights" - The United Kingdom's Role in Drafting a European Bill of Rights, Mark II, [2001] Public Law 527, on the negotiating position of the United Kingdom.
23 De Burca, supra note 12, p. 130.
24 Koen Lenaerts and Eddy Eddy de Smijter, A "Bill of Rights" for the European Union, 38 Common Market Law Review 273 (2001), p. 281-2.
25 "The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values. Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice. The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organisation of their public authorities at national, regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, goods, services and capital, and the freedom of establishment. To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter. This Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights. Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations. The Union therefore recognises the rights, freedoms and principles set out hereafter.94
26 Vitorino, supra note 22, says that the Charter innovates "by simplifying, modernising or supplementing some of the instruments it takes a points of reference", p. 20.
27 Reflecting a compromise over a divisive issue, see Lenaerts and De Smijter, supra note 25, p. 296.
28 Lammy Betten, The EU Charter of Fundamental Rights: a Trojan Horse or a Mouse?, 2001 International Journal of Comparative Labour Law and Industrial Relations 151, p. 161.
29 Editorial Comments, supra note 18, p. 6.
30 de Búrca, supra note 12, p. 131.
31 Ibid., p. 134.