Analytical Introduction

• Author: Coghlan, Niall; Steiert, Marc
• Pages: 12-28

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ANALYTICAL INTRODUCTION

Analytical Introduction

This introduction consists of two parts. Part I gives an overview of the collection: the

existing literature on the Charter’s drafting, the collection’s purpose and the possibility

of future updates. Part II enters into the process of drafting the Charter. It provides an

overview of the Charter Convention itself and a guide to the content of and editorial

choices made in the collection. Together with the chronology in the following section,

these aim to give the reader a way into this large collection.

For the busy practitioner, the overview of the Convention (in Part II) and the

chronology of drafts (p.49) will likely provide the quickest way to begin tracing the

development of a particular provision.

PART I: Overview

Introduction

A rich literature on the EU’s legal history is at last burgeoning.1 One particularly

promising bud seeks to historicise the development of fundamental rights in the EU.2

          

   



and based on the actions of individuals and institutions.3 It is moreover a language with



1 Rasmussen, ‘The Legal History of the European Union: Building a European Constitution’ in Oxford Research

Encyclopedia, Politics (July 2019); more broadly Patel, ‘Widening and deepening? Recent advances in European

Integration History’ (2019) 63 Neue Polit. Lit. 327

2 For recent steps towards historicised understandings, see de Búrca, ‘The Road Not Taken: The European

Union As A Global Human Rights Actor’ (2011) 105(4) American Journal of International Law 649; Davies,

‘Internationale Handelsgesellschaft and the Miscalculation at the Inception of the ECJ’s Human Rights Jurisprudence’

in Nicola and Davies (eds), EU Law Stories (CUP 2017), p.163; and Phelan, ‘The Role of the German and Italian

Constitutional Courts in the Rise of EU Human Rights Jurisprudence: A Response to Delledonne & Fabbrini’

TRiSS Working Paper Series, TRiSS-WPS-02-2020.

3 Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150-1625 (Michigan

William B. Eerdmans, 2001), p.6 (referring to human rights and their predecessor, natural rights). Whilst

fundamental and human rights are strictly distinct, the two are intimately linked (Peers et al., The EU Charter of

Fundamental Rights: A Commentary       

Ibid., pp.VII-VIII). For our purposes, fundamental rights can be treated as the institutionalisation of human rights

(Monereo Atienza and Monereo Pérez (eds), La Europa de los Derechos: Estudio Sistemático de la Carta de los Derechos

Fundamentales de la Unión Europea (Editorial Comares 2012), pp.XV and XVII).

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ANALYTICAL INTRODUCTION

the result of historical processes, contingencies and choices.4 Carefully cultivated, this

bud promises to demystify these developments, in turn permitting a sharper, more clear-

eyed understanding of the history, nature and role of EU fundamental rights.

A crucial chapter in that history was the proposal, drafting and elevation to primary-

law status of the Charter of Fundamental Rights of the European Union (‘the Charter’,

‘CFR’). While the Charter professes simply to make existing rights ‘more visible’, it has

sparked a transformation – still in its early days – in the role and status of fundamental

rights within the Union.5 The Charter was, moreover, not drafted in the dark corridors

of diplomatic negotiation (like most human rights treaties) or in a long-passed

revolutionary moment (like the American and French bills of rights): it was drafted

in a public Convention between 1999 and 2000 (‘the Charter Convention’), with all

documents published online, extensive public discussion by the participants, and an

open exchange with several dozen NGOs. 46 of the 62 Members were national or EU

Parliamentarians. One political scientist judged it ‘the best attempt yet to provide for an

open and deliberative exchange’.6

Yet, where the drafting of other rights instruments has been studied extensively by

both lawyers and (increasingly) historians7, the same is not true of the Charter. The

detailed analyses of the Convention that do exist tend to focus on its overall mechanism

and dynamics from a political science or constitutional perspective.8 This perhaps partly

arises from the context: the Convention’s innovative composition and working methods

were widely acclaimed and replicated in the 2002-2003 Future of Europe Convention

that drafted the Constitutional Treaty. In this ‘Convention moment’9, then, the Charter

Convention’s process garnered more attention for its own sake – and for its potential

10 – than for what it revealed about the resulting, at that point

4 Koskenniemi, ‘Rights, History, Critique’, and Moyn, ‘Human Rights in Heaven’ in Etinson, Human Rights: Moral

or Political (Oxford, OUP 2018). Even proponents of the ‘orthodox’ view of human rights – which see them as

moral rights possessed by all humans in virtue of their humanity, to be determined primarily by moral reasoning –

accept (and indeed argue) that the particular rights provided in individual legal regimes are the result of contingent

historical processes. This is precisely how they are able to criticise legal human rights which do not align with (their

articulation of) moral human rights. See e.g. Tasioulas, ‘Saving Human Rights from Human Rights Law’ (2019) 52

V and J Transnat’l L 1167, 1172-3.

5 See the Preambles to the Charter and Protocol 30 to the Treaties; see also Cologne Conclusions, p.19. For

two assessments of the Charter’s impact, see Frantziou, ‘The Binding Charter Ten Years on: More than a “Mere

Entreaty”?’ (2019) 38 Yearbook of European Law 73 and de Vries, ‘The Charter of Fundamental Rights and the

EU’s “creeping” competences: does the Charter have a centrifugal effect for fundamental rights in the EU?’ in

Douglas-Scott and Hatzis (eds), Research Handbook on EU Law and Human Rights (Edward Elgar Publishing, 2017).

6 Schönlau, ‘New Values for Europe? Deliberation, Compromise, and Coercion in Drafting the Preamble to the

EU Charter of Fundamental Rights’ in Eriksen et al., The Chartering of Europe: The European Charter of Fundamental

Rights and its Constitutional Implications (Nomos Verlagsgesellschaft 2003), p.132. Cf. Liisberg ‘Does the EU Charter

of Fundamental Rights threaten the supremacy of Community Law?’ (2001) 38 CMLRev 1171, p.1182.

7 E.g. Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (University of Pennsylvania

Press 1999); Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (OUP

2004).

8 See particularly Schönlau, Drafting the EU Charter: rights, legitimacy and process (Palgrave 2005); de Búrca, ‘The

drafting of the European Union Charter of Fundamental Rights’ [2001] ELRev 126; and Deloche-Gaudez, ‘The

Convention on a Charter of Fundamental Rights: A Method for the Future?’ (Notre Europe Research and Policy

Paper 15, November 2001. More recently, Bellamy, From Maastricht to Brexit (Rowman 2019), chapter 6.

9 Castiglione et al., Constitutional Politics in the European Union: The Convention Moment and its Aftermath (Palgrave

2007).

10 Maduro, ‘The Double Life of the Charter of Fundamental Rights’ in Eriksen et al. (fn6) and Eeckhout, ‘The

EU Charter of Fundamental Rights and the Federal Question’ (2002) 39 CMLRev 945.