EU fundamental rights as a source of integration or disintegration?

A few days ago I was invited to give the Lord Slynn Memorial Lecture at Charles University, Prague, hosted by the extraordinarily clever and hyperactive members of The Common Law Society. As some of you may know, The Common Law Society is a Prague-based student organisation, responsible for the organisation, inter alia, of the View From A Mountain Summer School, one of the leading summer courses on EU Law currently on offer. I very much admire the motivation, the determination and the astuteness of its members, some of them very young Law students, all of them extraordinary.

Having been given the chance to speak about fundamental rights in the EU gave me a good reason to think about the current state of fundamental rights protection and the role of EU Law. Furthermore, the fact that I was speaking in Prague, the capital of a Member State of the Visegrad Group, gave me even better reasons to reflect critically and with care about the Union and the current developments taking place in the eastern borders of the EU.

These are, very briefly, the main arguments I introduced in the course of the lecture.

In “What is the What”, Dave Eggers tells the incredible story of a young member of a Sudanese tribe, the Dinka. According to the founding myth of the Dinka, God gave the first Dinka (the monyjang) a choice between a cow or “the What”, an unknown. Of course the Dinka chose the cow, for “the first Dinka man and woman knew that they would live in peace with the cattle, and that if they helped the cattle eat and drink, the cattle would give man their mill, would multiply every year and keep the monyjang happy […] God was testing the man. He was testing the man, to see if he could appreciate what he had been given, if he could take pleasure in the bounty before him, rather than trade if for the unknown”.

After World War II, Europeans were faced with a similar choice. As is known, by creating the European Communities the European States, like the Dinka, chose the cow. No matter how revolutionary the powers of the new authorities were, the truth is that the European Communities were international organisations working under the rationale of international law. It was all new, indeed, but not unknown. It was an organisation for the creation of a market, an economic arrangement that would give peace, security and prosperity that would keep the peoples of Europe happy.

However, in 1992 Europe changed its mind, it took a step forward and chose “the What”. The creation of the Union, a political organisation integrating sovereign powers into a single authority, with its own European citizenship and its own source of democratic legitimacy, was a momentous decision in the history of the continent. The fact that this was all taking place at the time of the fall of the Soviet Union and of German reunification, made the choice even more significant.

The founding of the Union was certainly a step into “the unknown”, a perfect reflection of the mystifying symbolism represented by “the What”. In 1992 the Member States were not completely sure of where they were heading, but nor do they seem to be any more certain nowadays. In fact, it is astounding to see how different our conceptions of the Union are today. Some Member States and citizens believe that the Union is the dream of political integration come true, whilst others see in the Union a pragmatic remedy that protects us from the ills and wrongs of globalisation. Nothing too exciting, the “least worst” option, a useful but unlovable tool we are all stuck with. For others, the Union is and should be a market and nothing but a market. And of course there are the critics, for whom the Union is simply a nightmare. As in Goya’s sketch, the dream of reason produces ugly monsters, and the Union is a very big and ugly one (or so the critics will claim).

The Union might be an unknown, a “What”, but we have nevertheless a clear idea of the tasks that it has been entrusted with. And standing out among many other tasks, the protection of human rights appears as one of the Union’s trademark features. In fact, human rights are a defining feature of the Union, and thus an excellent tool in helping us understand what the Union is and what it aspires to be.

Indeed, human rights stand at the forefront of European integration, or so the Treaties say. Human rights are part of the values of the Union, but their promotion is also an objective of the Union. A Fundamental Rights Agency has been created, and human rights conditionality is an important part of international trade agreements entered into by the Union with third States with dubious human rights credentials. But above all, the Union has enshrined a binding Charter of Fundamental Rights with a wide array of liberal, social and political rights. The Court of Justice has given a robust interpretation of the horizontal rules of the Charter, particularly the ones on its scope of application. Union and national Courts implement the Charter every day and citizens claim their Charter rights before Union and national administrations. To close this virtuous circle, the Union must accede to the European Convention of Human Rights, with the purpose of aligning Union action with Convention standards and, above all, external control from the Strasbourg court.

Having given such relevant role to human rights is not an innocent choice. Human rights are useful tools that protect individuals, indeed. But human rights also serve a more systemic and strategic role for public institutions: the proclamation and active protection of human rights is a source of legitimacy for the political organisation entrusted with their protection. The Union has been using human rights as a source of legitimacy, as a way to reinforce the political muscle of an organisation that is still too close to the unknown, to “the What”.

However, if human rights play such an important role for the Union and they benefit from a broad array of instruments, why are we currently in a state of human rights malaise? Why is the Union giving the impression that it is not living up to the standards in the field of human rights? And what does this malaise imply for the Union overall?

I believe that the malaise has a lot to do with the risk of high expectations and with the gap between those expectations and the delivery of the goods. And indeed, if we get a glimpse of how the Union is approaching the protection of human rights, we might find good reasons to be disappointed.

The political Institutions (Commission, Council, EP, European Council) have sent some worrying signs. The Fundamental Rights Agency is a good example of how to water-down a body that could have played a relevant role in the field. It is sad to see how the Venice Commission has overtaken the Agency in authority and powers (see the recent Polish crisis), and that is, of course, the result of a decision made by the political Institutions. In the same vein, the way in which human rights conditionality in trade agreements has been enforced can also raise some doubts. Furthermore, the European Council’s decision to enter an agreement with Turkey that might seriously undermine the fundamental right to asylum (it is a fundamental right, or so the Charter claims…), even more so at a time in which one of the most tragic exodus in recorded history is taking place, gives further proof of how the delivery is not meeting the expectations created.

Unfortunately, the sun does not shine any brighter in the Union courts. In this blog, I have previously discussed about the stark contrasts between levels of fundamental rights protection in the Court’s case-law depending on the right involved. We do not really know why on earth privacy deserves super-protection, but not property rights, or social rights like the right to collective action. Fundamental rights deserve equal protection, but why are some fundamental rights more equal than others?

And then there was Opinion 2/13. All the hopes of Union accession were shattered, together with the promise of the Union’s slow and gradual inclusion into the club of respectable European nations that uphold fundamental rights and promote external control. The Court’s reluctance to accept accession, to accept Strasbourg external control, to accept references to Strasbourg from national courts, to accept anything that might undermine its authority and the autonomy (another “What”) of the Union, proves a certain puzzlement in the Union’s supreme jurisdiction approach towards human rights and their institutional implications.

Seen in this light, the Union seems to be in serious trouble. If one of the main sources of legitimacy of the Union is underperforming in such a way, the Union’s authority will eventually decline and, who knows, it might end up collapsing overall. As Americans very well know, the creation of a composite political organisation with federal aims entails serious risks, including the risk of total failure.

By failing to deliver the goods in such a strategic but also “existential” area as human rights, is the Union risking total failure? And seen in retrospect, is it possible that we, Europeans, made a mistake in 1992 when deciding to choose “the What”?

Let me now get back to the story of the Dinka tribe.

The Dinka chose the cow and they were thus prosperous and happy for many years. But that didn’t save them from the many dangers that surrounded them. The Dinkas chose the cow, but they were not spared from being attacked, slaughtered and eventually eradicated by other tribes. We will never know what would have happened had they chosen “the What”, but we certainly know that choosing the cow did not guarantee long-lasting security nor comfort to the Dinkas.

Our world is terribly more complex than the world of the Dinkas, but it is also much more scary. Communications and technology have changed social relations and have turned the planet into a borderless and small-sized auditorium. We all know what is going on at the other end of the globe, and in case of doubt all we must do is turn to the internet and find out. Social interaction takes place regardless of space and territory thanks to social media. We live in a world in which “polities” have become porous and unstructured. Language seems nowadays to be the last tool in keeping polities together.

Goods and services have changed too as a result of communications and technology. Manufacturing will be transformed (it already is) as a result of 3D printers, whilst services will be provided from long distances as a result of the internet. The world and domestic economies will never be the same, for markets have adapted to the new technological environment, were money moves from one continent to the other at the speed in which a button is pressed.

This new world is full of opportunities, but full of challenges too. International terrorism uses those same tools to make terror borderless and thus even more terrifying. The world economy has become unpredictable and unstable. The rise of hollow superpowers with a taste for war and destruction, some of them scarily close to our European borders, will not make our lives any easier.

So can we, Europeans, face the challenges of this new and daunting world by giving away “the What” and choosing again the cow? If the Union is not delivering the goods in an existential area of policy, is this good enough a reason to turn back and return to other more discrete and humble means of European integration?

The Union is not perfect, but nor is any Member State. When there are institutional problems in a Member State, nobody speaks about dismantling the Sate. Problems are spotted, approached and resolved, and then the State carries on doing its job. So why do we keep questioning the Union every time it does not provide the goods, instead of simply looking for the ways to fix the problem? At a time in which we need the Union more than ever to face the challenges that lay ahead, it is crucial that we put the emphasis on the solutions and not the problems.

As far as human rights are concerned, the Union should become more pragmatic and less rhetorical. In fact, the Union’s human rights rhetoric is at the heart of the current disappointment with human rights protection. The Fundamental Rights Agency should have executive powers and the ability to monitor EU and Member State action and eventually impose sanctions. The Charter should be approached in a much more systematic way by the Court, and if some rights are more equal than others, the Court should give convincing arguments and not simply assume that we will also assume what those reasons are.

And above all, human rights have been created indeed for the benefit of their right-holders, but they also create obligations on public power. Human rights must have a clear addressee in order to be able to make public power accountable. The Union cannot afford to give “European solutions” to “national problems” without human rights accountability. The way in which the recent economic crisis as been handled, making use of EU and international rules whereby nobody knew who was accountable, is a lesson from the past that should be avoided.

To conclude, the big malaise that afflicts fundamental rights protection in the Union does not justify an overreaction questioning the Union itself. In fact, never has the Union been more necessary than today, and it will continue to be crucial for our existence as Europeans, as long as the world evolves towards the very unpredictable and daunting place we are witnessing these days. Choosing “the What”, after all, might have saved us from the dangers of the past years. But the fact that the dangers are still there is not good enough a reason to put an end to the Union. In fact, giving away “the What” for the cow, for the comfort and security of short-term wellbeing, might be our quickest route towards disaster.

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