Book Notes

La Charte des Droits Fondamentaux de l’Union Européenne. Edited by Jean-Yves Carlier and Olivier de Schutter. Brussels, Belgium: Bruylant, 2002. Pp. 304. €40.00, paper.

The post–World War II process of European integration is perhaps the Western world’s most successful attempt to overcome age-old cultural and historical divides using “soft power” stimuli. However, with the imminent expansion of the European Union (“EU”) to the formerly communist countries of Eastern and Southeastern Europe, new questions about the nature and purpose of the EU have arisen. Today, many analysts point to an emerging “European” continental identity that is developing alongside the well-established national identities. This identity is no longer exclusively based around the idea of economic free trade, but rather around a deeper sense of shared norms and values. Thus, the Treaty on European Union signed in Maastricht in 1992 states that “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the member states.” And although membership in the EU requires also being a party to The European Convention on Human Rights (“ECHR”), it has become increasingly important for the EU to define exactly what it means by “fundamental freedoms.”

Therefore, in 1999, the heads of state of the fifteen European member countries met in Cologne, Germany to launch an initiative aimed at codifying these rights. The result of this effort—The European Charter of Fundamental Rights—is the subject of this French-language compilation of seventeen essays by mostly francophone scholars. Written only a little over a year after the signing of the Charter in Nice, this book is a mostly academic discussion of the possible impact and scope of the Charter and assumes a working understanding of the EU.

One of the most interesting themes of the book is the ongoing tension between the member countries’ insistence that the treaty be non-binding and the hope that many of the authors place in the future legal value of the treaty. In their introductory essay, Jean-Yves Carlier and Olivier De Schutter present the purpose of the Charter, which is to crystallize and codify the various rights that all EU member countries can agree upon. As the participants in the drafting convention went through heroic efforts to hammer out a text that was to be comprehensive, comprehensible, and innovative, they did manage to convince some of the less enthusiastic members states to agree to a legally binding charter.

In another essay, Huges Dumont and Sébastien Van Droogenbroeck ask what constitutes the true nature of the Charter and whether the Charter will eventually contribute to the “constitutionalization” of the EU treaty, pulling the EU even further from its roots as an international treaty organization and pushing it towards the federal model. According to Dumont and Droogenbroeck, the key to such a development is the sovereignty (or lack thereof) of the European Union. Since the EU is such a strange hybrid between a supranational government and a treaty organization, the authors hesitate to compare the Charter with a true federal constitution. Nevertheless, they leave open the question as to whether the Charter can perhaps serve such a role in the future—by galvanizing European popular opinion around the idea of a “European identity” that may someday form the political momentum for a more powerful, legally binding, supranational governance.

In a contribution that will likely be of interest to human rights practitioners, Professor Paul Magnette reminds us not to underestimate the power of normative texts. He points to past instances in the history of the European Union where the pronouncement of purely political “declarations” has given elements of civil society the normative tools they have needed to push for concrete reforms. According to Magnette, the current Charter may potentially open the normative floodgates for Europeans wanting to expand existing civil and political rights and codify more precise social and cultural rights. One of the Charter’s most innovative features is that it incorporates social rights on an equal footing with civil and political rights, but, as Olivier De Schutter points out, there are many inconsistencies and vague definitions in the Charter’s attempt to define these social rights. According to Magnette, this is fertile ground for activism on the part of Europe’s civil society. Indeed, both a judge sitting in the European Court of Human Rights in Strasbourg (Françoise Tulkens) and a judge sitting in the Court of Justice of the European Communities in Luxembourg (Melchior Wathelet) agree that the likelihood of the European Court of Justice using the Charter to justify future decisions is very great indeed.

Another controversy that surfaces towards the end of the book is a debate over the effect that the Charter will have on the relationship between the European Union and the Council of Europe. These are two separate bodies with separate signatories, and traditionally their activities have had little

effect on one another. But by introducing a human rights declaration into the main texts of the European Union, the European Court of Justice may now potentially hand down decisions that would otherwise be handled by the European Court of Human Rights (an arm of the Council of Europe). Indeed, the Charter specifically refers to two separate provisions in the ECHR, thereby opening up the danger that the two courts will have different interpretations of the treaty. Françoise Tulkens critically explores the validity of thinking that human rights institutions are necessarily embedded in a hierarchical pyramid structure. Tulkens proposes instead the concept of a pool of resources, in which practitioners can choose from a variety of mutually cooperating and complementary sources of human rights law. She thereby transforms the debate over which institution should ultimately “win out” over the other into a debate over how the two institutions can best cooperate and complement one another’s activities.

This is a useful book for scholars interested in the debate over the development of a normative “European identity” associated with the EU and the role that human rights can play in this process. However, it is also a very scholarly book, and it is probably not very useful to readers who do not have a prior knowledge of the European Union and its institutional structure. Although the book mentions that one of the Charter’s primary purposes was to prepare the EU for expansion, the authors never discuss the potential impact of the Charter on the future member states, and they ignore the larger debates over a “European identity” brought up by the potential admission of Turkey. All in all this is a good book for readers seeking a detailed case study of the extraordinarily complex process of attempting to incorporate human rights norms into an international organization.

—Stephan Sonnenberg

Copyright © 2003 by the President and Fellows of Harvard College
Harvard Human Rights Journal / Vol. 16, Spring 2003