Jean Monnet Center at NYU School of Law

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I Introduction

Judicial protection of fundamental human rights by the European Court of Justice may operate as a source of both unity and disunity in the dialectical process of European integration.

There is, of course, the classical vision which regards a commitment to fundamental human rights as a unifying ideal, one of the core values around which the people and peoples of Europe may coalesce. When the Court, in the very well known story, held itself out as the guarantor of fundamental human rights in the field of Community law, it was, on this view, merely giving judicial expression (and teeth!) to that core value. But, judicial protection by the European Court of Justice, both of Union measures and Member State measures, can also be a source of tension.

First, and this goes to the heart of this essay, beyond a certain core, reflected in Europe by the ECHR , the definition of fundamental human rights often differs from polity to polity. These differences, I will argue, reflect fundamental societal choices and form an important part in the different identities of polities and societies. They are often that part of social identity about which people care a great deal. What menu and flavour of human rights are chosen in the Community context matters and can become a source of tension even absent direct conflict of norms. The choice of human rights is about the choice of fundamental values so the stakes are rather high. In the first part of this essay I shall explore these situations of conflict and tension and, from a distance, try and explain how the European Court of Justice has attempted to mediate the tensions and blunt the conflicts.

Second, judicial review of Community measures but especially Member State measures can be seen, and have been seen, as part of a relentless and highly problematic extension of jurisdiction into areas of social regulation which are, or ought to be, the prerogative of the Member States. I will deal, in some detail, with this extension of jurisdiction and its roots.

I should clarify that my focus is not on the problems which result from the fact that it is judge made law -- an issue with which I have dealt elsewhere. I am concerned with the meeting of European rights with national rights. I should also explain that in this essay I shall remain firmly within the liberal rights paradigm leaving for another occasion the rights-critique apparatus.

Before turning to the actual jurisprudence I will explore a little deeper the notion of human rights as societal values and their potential for conflict in the European architecture.

Modern liberal States, taking their cue principally from the American rather than British democratic tradition, increasingly acknowledge a higher law -- typically a constitution, and in more recent time, international treaties -- which bind even the legislature of the state. In an increasing number of modern democracies the higher law is backed up by courts and a system of judicial review which give it, so to speak, teeth. Within this constitutional ethos judicial protection of fundamental human rights has a central place. Constitutionalism, despite its counter-majoritarian effect is regarded as a complimentary principle to majoritarianism rather than its negation. One formulation which describes the complex relationship between the two is the notion of protection against a tyranny of the majority -- seemingly an oxymoron. I think the appeal of rights has to do with two roots. The first of these two roots regards fundamental rights (and liberties) as an expression of a vision of humanity which vests the deepest values in the individual which, hence, may not be compromised by anyone. Probably one of the oldest and most influential sources of this vision is to be found in the Pentateuch: And God created man in His own image, in the image of God created He him. (Gen.I:27). With this trademark, what legislator has the authority to transgress the essential humanity of the species? Naturally, there are secular, humanist parallels to this vision a plenty.

The other root for the great appeal of rights and part of the justification even if countermajoritarian looks to them as an instrument for the promotion of the per-se value of putting constraints on power. Modern democracy emerges, after all, also as a rejection of absolutism -- and absolutism is not the prerogative of kings and emperors.

Similar sentiments inform the great appeal of fundamental boundaries in non-unitary systems such as federal states and the European Union. I use the term Fundamental Boundaries as a metaphor for the principle of enumerated powers or limited competences which are designed to guarantee that in certain areas communities (rather than individuals) should be free to make their own social choices without interference from above. If you wish, if fundamental rights are about the autonomy and self-determination of the individual, fundamental boundaries are about the autonomy and self-determination of communities. The appeal of fundamental boundaries rests as well on two parallel roots. First as an expression of a vision of humanity which vests the deepest values in communities (potentially existing within larger polities) which, thus, must be protected. This community vision of humanity derives from an acknowledgment of the social nature of humankind, as a counterbalance to the atomistic view of the individual which is reflected in the concept of individual rights and liberties. It too finds a powerful Biblical expression in the Pentateuch: And the Lord God said: It is not good that man should be alone (Gen II:18). Fundamental boundaries around communities-of-value become the guarantee against existential aloneness -- the protection of the Gemeinschaft against the Gesellschaft.

Its second root is a reflection at the level of social organization of that same per-se value of non-aggregation of power. Fundamental boundaries constitute and thus ensure different realms of power.

At first blush it would seem that these two basic principles need not clash at all. There could be, it would seem, a neat, tidy way to situate fundamental rights and fundamental boundaries within the constitutional architecture of Europe.

For example, one set of norms and institutions, national-constitutional and/or transnational, would take care of human rights: Ensuring that no public authority at any level of governance would violate the basic autonomy and liberty of the individual. Another set of norms, national-constitutional and/or transnational, would take care of boundaries: ensuring that transnational governance would not encroach on fundamental societal choices of, principally, States.

The adoption of the European Convention of Human Rights by the Member States of the Council of Europe is a reflection of this tidy arrangement: The High Contracting Powers of the Convention retain their full prerogatives as sovereign states. State boundaries constitute thus par-excellence fundamental boundaries which guarantee full autonomy of their respective national societies. The one self-limiting exception concerns the core fundamental human rights given expression in the ECHR which may not be transgressed in any of these societies. Thus, the universalism of human rights and the particularism of fundamental boundaries may rest together like the Wolf and Sheep.

You will note, however, that I used the term "core fundamental rights" in drawing this idyll. The neat arrangement which the ECHR may be said to represent can only work in relation to a core which gives expression to those "rights", or to those "levels of protection", which are said to be universal, transcending any legitimate cultural or political difference among different societies in, at least, the universe of Europe. The ECHR is premised on this understanding.

Critically and crucially the ECHR does not exhaust the spectrum of human rights. By its own self-understanding, whereas the ECHR provides the "minimum standard" of protection "below" which no State may fall, the High Contracting Parties are free, perhaps even encouraged, to offer "higher" standards of protection to individuals. Indeed, part of the uniqueness of States, part of what differentiates them from each other may be the very way they give protection beyond the core universal standard.

Thus, the commitment to, and the acceptance of, the ECHR as a universal, culturally transcendent core of human rights is, surely, an expression of a very important aspect of the political culture of a State which brings it together with other States and societies. When this is backed up by submission to transnational machinery of enforcement the commitment is all the more expressive.

But, I would argue, the differences in the protection of human rights in these societies within the large band which exists beyond the universal core, is no less an important aspect of the political culture and identity of societies. Human rights constitute, thus, both a source of, and index for, cross-national differentiation and not only cross-natioanal assimilation.

Here is a banal example to illustrate the point.

Freedom of expression is a fundamental right in relation to which a transcendent universal core of protected speech may be defined across national divides in the framework of, say, the European Convention of Human Rights. But there is, evidently, a large margin for rights discourse beyond that core of protected speech. In America, a band of Neo-Nazis may march with full regalia in the neighborhood of Holocaust survivors. An attempt by the local authorities to ban such a march will be struck down as compromising the fundamental right to freedom of expression of the marchers. In many European countries, and clearly in, say, Germany, such speech would be prohibited without that prohibition being construed in violation of core freedom of expression.

I would make three comments on the example.

1. First, we do not capture the contrast of values inherent in this example by simply saying that in America you get a little bit more protection of freedom of expression than in, say, Germany. Often, there is much more to these differences. It is through these differences, and others like them, that societies at times define some of their core values which go to their very self-understanding -- their particularized identity rooted in history, and social and political culture. America is saying something very important about itself (good and/or bad) when it insists on the right of the individual to engage in such extremist, even injurious speech. Germany says something very important about itself (good and/or bad) when it would deny the individual such a right. It may even be saying something rather profound about a different emphasis on individualism and communitarianism in the respective polities.

2. There is another sense in which it would be simplifying these societal choices to articulate them as a "mere" difference between level of protection of human rights. Human rights are almost invariably the expression of a compromise between competing social goods in the polity. In liberal democracies, the most typical is an accommodation between, on the one hand, the various interests of the collectivity represented by governmental authority and, on the other, the interest of the individual in autonomy and individual liberty. Society may find it very important to empower the individual against government authority. That is how we normally think of human rights. But society may find it very important too to empower government authority against the individual. The fight against crime comes, perhaps, first to mind. Alternatively, In the context, say, of rights to private property and land reform, differences between capitalist-liberalism and the gamut of socialist world views is a good context in which the need to look at human rights as a looking-glass reflection of government or public rights is self-evident. The extent of government power (as well as the desirability) to interfere with private property rights (eg programs for nationalization) was for long a dividing line between governments of left or right persuasion within European liberal democracies.

Critically, when a society strikes that balance between these competing interests and characterizes that balance as a fundamental right or liberty (to property, to free speech etc) it is the balance which is fundamental: The fundamental right of the individual to be protected against government power, set against the fundamental right of the public through government to act in accordance with the general interest. Note, that it is as injurious to the social choice involved in this balance to compromise the right of the individual as it would be to limit the rights of government. This balance is an expression, then, of core values, of basic societal choices. This is the point where the distinction between rights and boundaries collapses since fundamental rights -- beyond the core -- become an expression of the kind of particularized societal choice of which fundamental boundaries are an expression. Fundamental boundaries are designed, thus, to allow communities and polities to make and live by those difference balances which they deem fundamental. Beyond the agreed core, to foist a fundamental right on a society is, arguably, to tamper with its fundamental boundaries.

3. Finally, the position of the ECHR in relation to this tension is, once more, worth defining. Imagine that the example of the Neo-Nazi march were transported into Europe. Imagine further one ECHR State following the American solution. So now we would have one state prohibiting the march and one State protecting it. The jurisprudence of the ECHR would not hold the prohibition on the march as a violation of freedom of expression protected by the Convention. But, in this type of case, it would also not interfere with the state which protected the rights of the marchers. In relation to freedom of expression the ECHR would be concerned to define a core of protected speech, a minimum level of protection. Once it was decided (for good or for bad) that the Neo-Nazi hate speech did not fall within this core, States would be free to protect it or to ban it and to part define themselves and differentiate themselves in terms of the choice they made on this issue. This is part of the famous margin of appreciation which the ECHR allows. States might, as I mentioned, even constitutionlize such a choice, and make it a "fundamental" part of their self-understanding. The difference between the States would thus become fundamental. By contrast, in relation to speech found to be within the core protected by the ECHR, States would not be able to make that choice. They would be bound by a shared view, that the protection of that particular speech vindicated a right which was transcendent and to which all were bound. In this case the commonality between the States would be fundamental.

Another way of describing the play of the ECHR in this context is to say that it defines the margin within which States may opt for different fundamental balances between government and individuals. It defines the area within which fundamental boundaries may be drawn. However, certain balances, tilted too much in favor of government are not permitted. It is against this background that I turn now to the protection of fundamental rights in the legal order of the Union.

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