The EU Charter of Fundamental Rights and the Subsisting Commitments of EU Member States under the European Convention on Human Rights: More Variable Geometry

Abstract

The product of discrete sources and strands, the protection of fundamental rights in Europe has now begun to knit together. The difficulties spring less from widely varying views of what fundamental rights ought to be than from their being played out upon different planes and to different purpose: pan-Europe by virtue of the European Convention on Human Rights, and pan-European Union with its economic (Community) emphasis and partially common law approach combined now with a codified Charter of Fundamental Rights. Perhaps more contentious is the institutional mechanisms by which rights are to be judicially protected, the relatively coherent Convention system and the quasi-appellate jurisdiction of the Court of Human Rights through the right of individual petition, and the Community/Union system which exists in a different dimension yet embraces (or purports to embrace), but is not (yet) formally married to, the Convention – but to which, it is important to remember, the member states are signatory and still subject. The two courts at the heart of this protection, the Court of Human Rights in Strasbourg and the Court of Justice in Luxembourg, have moved slowly into a closer embrace, but each remains subject still to the peculiarities of its jurisdiction, conscious of the practical limits to its authority and wary of the risks of over-confidence and extending itself too far. Recent developments in their case law, brought about especially by the growth of Union activities which escape Luxembourg scrutiny, have brought issues to a head and produced both robustness and deference from Strasbourg. At the same time events are moving on as life is breathed back into the Constitution for Europe, which had proposed one solution, by the draft Reform Treaty, which proposes another. It also goes down the road of yet more variable geometry, a device all too easy as a means of earning agreement in the political arena but often leaving legal chaos in its wake.