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These specific, often apparently rather technical issues, mask a deeper set of questions. What role do we envisage "rights" playing in the construction of Europe? Do we think of "rights" as part of the set of free-market liberal principles and freedoms around which the EEC, EC and EU were successively constructed, and on the basis of which the EU continues to develop? Or do we think of "rights" as essentially a counter-balance to free-market liberalism and freedoms, and as such part of the further development and underpinning of the European social model? Or do we think of "rights" primarily in the context of a notion of European citizenship and civic society, with 93rights94 playing a 93constitutional94 role in furthering European integration. This part of the paper begins to explore some of these deeper questions, albeit briefly.
Should we see the debate about the role of the Charter as a part of an essentially contested constitutional discussion that arises from the continuing debate over the depth of future European integration? Is the Charter a mechanism for further such integration? Viewing the future of the Charter within this discourse is complicated, in part because the argument that rights can have an integrationist effect is formulated in different ways.
One formulation goes something like this: Nationalism embodies a strong element of narrow group identity and the existing treaties encapsulate this in preserving the Member States in a central role in the development of the Community. The aim of integrationists is to replace this with a broader European identity. The function of a Charter of Rights is partly constitutional, in that, like other modern national constitutions, it attempts to identify the basic values that Europe is committed to. Recognising a common set of rights in a document that all can commit to, at least in part, is seen as an important element in building a new political society, providing the possibility of common identification by all with a basic set of values, if not with the institutions of the Community.
From this perspective it is important that the rights identified should not be too narrow in their focus or prove ineffective in practice. The narrower the range identified, or the less effective they are in practice, the less likely it is that individuals will identify with the bulk of rights on the list and hence the integrationist effect will be weakened. The more the rights specified appeal across the existing national communities, and the more effective they are in practice, the more likely it will be that rights can be seen as helping to bind the communities together rather than dividing them, and those institutions seen to be most closely identified with those rights will indirectly attract greater legitimacy. Particularly where much of the rest of the constitutional structure in Europe is explicitly or implicitly Member State-based, a broad-based list of rights can thus enable a set of common values to be identified that transcends the Member State, offering an alternative vision of the future. By setting out a common vision, a shared set of ideals in a Charter of Rights, we enable ownership of an important element of the Community to be shared across national communities. Therefore, a Charter covering civil and political rights is likely to lead to more integration and, for that reason alone is to be viewed with favour (or suspicion, depending on your views on European integration). A Charter with social and equality rights is even more desirable (or even more to be resisted) because it would be even more integrationist in its effects. A legally binding Charter, with social and equality rights is most desirable (or most to be resisted) because it would be most integrationist in its effects.
For others, however, assumptions about the integrationist effect of rights in the European context are exaggerated, unproven, or wrongheaded. From one perspective, rights do not create a polity, do not create a common political identity, but rather are expressions of an identity that already exists. If such a polity does not already exist, then the Charter will not help to create it. If such a polity does exist already then a Charter is unnecessary to create it. From this perspective, to either support or oppose the Charter on the grounds that it can increase integration is to assume that the tail wags the dog rather than the other way round. Unless there is an already functioning common political identity, the attempt to inculcate rights will be unsuccessful and so, from that point of view, the debate about the role of the Charter is irrelevant to the debate about integration. Rights are not constitutive of political identity, in other words, but the other way round.
So far, the arguments have either been that the Charter has an integrationist effect, or that it is neutral vis-à-vis integration. But might the Charter of Rights weaken European integration? Di Fabio has warned that a Charter may weaken integration under certain conditions. Writing before the Charter was completed, he warns, that if it were to become, "a cornucopia of social promises that are neither judicially enforceable nor legally operational, [it would] harm[] European integration and promote "a centralization of Europe that can potentially over-strain the European Union's bases of legitimacy."54
As this warning from Di Fabio illustrates, there is another dimension to the debate about the future of the Charter. Setting aside the issue of the relationship between the European Community/Union and the Member States, one of the most hotly contested issues in European political debate is the future of the "European social model". The debate about the relative balance that is appropriate between social protection and competitiveness, and the ability to sustain substantial social spending in the context of an increasingly globalized economic system, are issues that go to the heart of current European political controversy (and indeed globalization more broadly).
The debate about the future of the Charter is, in part, bound up with this broader debate. What is the appropriate relationship between rights and competitiveness, and between rights and social policies generally? What, indeed, is the appropriate discourse within which the Charter should be discussed? Is the relationship between fundamental rights and the discourse about competitiveness, employment, and the creation of wealth and prosperity in Europe such that any tensions between rights and competitiveness should be resolved within a single discourse about the core values of the EU as embodied in its foundational Treaties?
To the extent that an affirmative answer is given, the issue then becomes the extraordinarily difficult and contentious one of whether solidarity and equality rights are foundational of economic success, or a drag on it. In this unresolved debate, the Charter becomes a powerful symbol for both sides. On the one hand, some see the Charter's espousal of equality and solidarity rights as a move by those who oppose the development of a liberal, market-driven "American" model of economic growth and development. For others, the Charter's inclusion of these rights (if that is what they are) symbolises the acceptance within a foundational document of the Community of the view that such rights provide the basis for economic growth and development. Higher social protection, from this perspective, may trigger higher productivity.55 Without it, Europe is on the road to becoming a low skill labour market unable to compete with the sweatshops of the third world, and unable to compete with the high skill economies. For those others who believe that a trade off between competitiveness and social protection is inevitable, the Charter symbolizes a re-balancing of the Community towards social protection and against free market capitalism.
Seen from one perspective, the political vision of the European Union is an ambitious one. It is, essentially, one that places considerable importance on political participation. It offers an opportunity to everyone to engage, to participate in shaping the future of a new political community. It is a truism that one of the major problems with that ideal is that it places a severe burden on everyone to act as a participant in the unfolding political drama. That sounds wonderful in theory, but can it be put into operation? The burdens of participation can seem at times to be overwhelming. How can a single parent who is worried about where the next pair of children's shoes is coming from, or a pensioner suffering from a recurrent and debilitating health problem, or a community activist unable to read and understand the interminable bureaucratic jargon that pours forth from government, or someone who is fearful that she will lose her job if she expresses her unpopular sexual preferences, participate effectively in the political process. It is difficult, time consuming, draining, and potentially risky work -- much better, it might seem, to leave it to our full-time political representatives. But given that these representatives are involved in distant institutions in far-off Brussels, Luxembourg and Strasbourg, an inability to participate effectively beyond merely selecting these representatives means that the vision of a society of fully participating individuals recedes into the far distance.
This is where the debate about rights, particularly solidarity and equality rights, may come in. On the one hand, those who see the evolution of European politics depending, not on mass popular participation, but on elite, representative politics, or who doubt the role of rights in encouraging political participation at all, remain sceptical of the utility of the Charter in this context. Some, indeed, see the relationship between the Charter and political discourse much more negatively. Some see it as containing a "wish list" that, if accepted at anything other than as purely rhetorical would withdraw a considerable number of issues from political debate. Others would argue that it is inappropriate to allow courts to give definitive answers to controversial political questions: instead, it should be left to the member states through their own legislatures or constitutional courts to make such contentious decisions. Indeed, this problem has already surfaced within existing ECJ human rights jurisprudence. This problem is not unique to the EU or the ECJ: it clearly confronts all human rights adjudication. However, at EU level, it seems to be exacerbated by the absence of a consensus on the legitimacy of integration.
On the other hand, rights, enforceable rights, rights that are secured, are thought by some to be necessary, though not sufficient, to enable participation in the political process to take place on an equal, respectful basis. Effective rights provide, if not a level playing field, then one that is not substantially biased against any group of participants. These rights are not a "wish list" of everything that one would like to see politics deliver without having to engage in politics. The Charter cannot replace politics; it is not anti-political. Such a Charter, and the rights it contains, is one which meshes with, while at the same time transcending, the Realpolitik of European political dialogue. The Charter helps to guarantee those rights that enable political participation to take place on a platform of security, equality, and dignity.
So far, the deeper debates canvassed above link the value of the Charter, at least in part, to wider debates about integration, economic development and political participation. There is, however, a debate over whether the attempt to place discourse about the Charter in the context of any of these other debates is appropriate. The question raised here is whether the rights contained in the Charter should be seen as justified on consequentialist or non-consequentialist grounds. For those who see human rights deontologically, the Charter is justified first and foremost because it promotes values that are intrinsically, not instrumentally, valuable. To the extent that this view is adopted, then the previous issues are at best side issues. However, a deontological approach to rights raises other significant questions about the content of the Charter, in particular whether the rights the Charter contains are of such fundamental value as to be justified on these grounds. For those viewing the Charter from such a perspective, some of the rights contained appear not to have such importance. Can we convincingly argue that access to placement services is fundamental in that sense? Does the inclusion of non-intrinsically justified 93rights94 risk undermining those other rights in the Charter that clearly are thought to be justified deontologically, such as the right to dignity?56
Human rights law raises immensely controversial issues of interpretation. There is often profound disagreement about the appropriate reach of human rights protections. The emotional and political force that an allegation of a violation of human rights now has often adds significantly to the salience of this controversy. In most jurisdictions in which courts play an active role in the legal protection of human rights, there is a significant debate about the extent to which the judiciary is either legitimate or competent in carrying out such a role. In part, this debate focuses on whether the purported distinction between legal and political approaches to human rights is convincing. When a judge interprets a human rights provision in a Bill of Rights, for example, is the judge really interpreting law, or making a political judgment? This question goes not only to the issue of the independence of the judiciary, but to the larger question of the autonomy of human rights law itself, its separateness from political and economic forces in the society. If human rights law is not "autonomous" (or relatively so), then the judge interpreting it might be said not to be acting as a judge in the traditional sense, but as a politician. If a politician, he or she has (in democratic societies) no greater ability or legitimacy in doing so than any other political actor, and arguably a good deal less. This goes to the debate over whether a Charter of Rights contributes to or competes with democratic discourse.
There is, however, an additional aspect to the debate over the autonomy of human rights law, and this relates to the autonomy of such law vis-à-vis other areas of legal interpretation. An equivalent debate outside the area of Community law may help to illustrate the point. A question that that arisen in the context of the debate over whether a "social clause" should be included in the treaties regulating international trade is whether the dispute settlement bodies in the WTO should be put in the position of interpreting international human or labour rights questions in the context of adjudicating on the meaning of these agreements. One argument is, of course, that such clauses should not be included because they "corrupt" the WTO system. These arguments tend to come from a trade perspective. Another objection that has been raised to this development, however, is from those who come from a human rights and labour rights perspective. Some of these commentators also view the idea of the WTO dispute settlement system interpreting international and labour rights provisions as unacceptable. They do so, however, for the different reasons that these rights should only, or primarily be interpreted by international human or labour rights bodies, not trade bodies. To permit other international bodies to interpret them, it has been argued, would be to risk introducing an unacceptably economistic approach to rights interpretation.
Translated to the European context, do we view the European Court of Justice as an appropriate body to adjudicate on the European Convention on Human Rights if the European Court of Human Rights is largely excluded from directly considering the issues before the ECJ? For those who consider human rights law as autonomous, then the answer often tends to be "no" or, at least, "not without significant changes to the ECJ". From this perspective come arguments about the potential for special EC human rights courts, reference procedures between the ECJ and European Court of Human Rights, and the need to safeguard the interpretations of the Court of Human Rights. On the other hand, those who do not regard human rights law as a special kind of law but simply as law, tend to have less fear of a significantly expanded human rights role for the ECJ.
A final underlying issue concerns how we should deal with ambiguity in legal texts and political debate. In many ways, ambiguity has been at the heart of the Charter process up until now. Some of the options discussed previously assume that it better to resolve ambiguities and uncertainties than to perpetuate them. But is it?
On the one hand, we may view the uncertainty that arises from ambiguity as harmful, limiting the ability of individuals and communities to choose among competing options secure in the knowledge of what the legal result with be. So too, as a political matter, some Member States may be willing to continue to support the Union and the Community only if they are much clearer than in the past where the train is headed. In some contexts, ambiguity is destructive.
On the other hand, there may be considerable benefits from continued ambiguity. Ambiguity may enable both sides of a dispute to claim victory (or at least deny defeat). It may encourage disputing parties to continue in dialogue rather than walk away from each other. It may transfer the dispute to a body in which, or to a time when, a solution can be more easily reached. But it is clearly true that although we can delay some choices and transfer others, eventually decisions may have to be made.
One of the crucial judgments that will have to be made about the future of the Charter is which position will be most beneficial for the European Council to adopt with regard to the Charter in 2004. Will studied and intentional ambiguity continue to be desirable? Or will the time have arrived for bullets to be bitten, and decisions made?
54 Udo Di Fabio, A European Charter: Towards a Constitution for the Union, 7 Columbia Journal of European Law 159 (2001), p. 161.
55 See, for example, the arguments advanced by Werner Sengenberger, Labour standards: An institutional framework for restructuring and development, in W. Sengenberger and D. Campbell (eds.), Creating Economic Opportunities: the Role of Labour Standards in Industrial Restructuring (1994), p. 3. See also David Charney, Regulatory Competition and the Global Coordination of Labour Standards, (2000) Journal of International Economic Law 281.
56 See, e.g., Wicks, supra note 23, p. 534-5.