Analytical Introduction

AuthorCoghlan, Niall; Steiert, Marc
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
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).
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
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
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.

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