Promoting Human Rights within the Union: The Role of European Private International Law

• Author: Veerle Van Den Eeckhout
• Published date: 01 January 2008
• Date: 01 January 2008
• DOI: http://doi.org/10.1111/j.1468-0386.2007.00404.x

Promoting Human Rights within the

Union: The Role of European Private

International Law

Veerle Van Den Eeckhout*

Abstract: This article aims to contribute both to the ‘Refgov’ project, which is focused on

the ambition to find ways of promoting human rights within the EU, but also, more in

general and apart from the project, to an improved understanding of the crucial place

conflict of law rules occupy in the building of a common Europe—a highly political

question behind apparently technical issues. In the study the author deals with the para-

meters, points of interest, etc in relation to private international law which should be

heeded if European Member States ‘look at’ each other’s laws, and—in the context of the

‘Refgov’ project—if the idea is to exchange ‘best practices’ or harmonise substantive law,

or to harmonise private international law, etc further through a type of open method of

coordination. The contribution also shows that private international law issues are decisive

in respect of every evaluation of the impact of European integration on human rights, both

if this integration process takes place through ‘negative’ harmonisation (for example by

falling back on the principle of mutual recognition) and through ‘positive’ harmonisation.

I Introduction

A The Position of PIL: An Exotic Wallflower or a Well-Integrated Participant

in Various Companies?

For a long time, the discipline of private international law (PIL) appealed to a limited

number of lawyers only. Essentially, this may also still be the case, even though the tide

has been turning for some years now.

In recent years, this field has been given a new impetus mainly by Europe, and PIL

is now in full swing. On closer inspection, it turns out that the tide is turning in two

ways: on the one hand, PIL itself is undergoing an internal metamorphosis, both

formally and substantively, but, on the other hand, the relationship between PIL and

other fields is changing fundamentally as well. Due to this repositioning of PIL, it is

conceivable that PIL issues will appeal to an increasing number of lawyers. In a recent

* Prof Dr Veerle Van Den Eeckhout, University of Antwerp, Belgium, and University of Leiden, the

Netherlands. This publication has been prepared with the support of the European Commission, Sixth

Framework Programme, Reflexive Governance in the Public Interest Project, coordinated by the CPDR-

UCL. See for more information on this project: http://refgov.cpdr.ucl.ac.be.

European Law Journal, Vol. 14, No. 1, January 2008, pp. 105–127.

© 2008 The Author

Journal compilation © 2008 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

contribution,1I described recent developments in PIL, specifically European PIL, as a

‘metamorphosis from an exotic wallflower into a well-integrated participant in a variety

of companies’. For example, PIL has seen an increasing focus on European integration

considerations.

B Point of Departure of the Analysis: The Importance of PIL for a Project

which is Focused on the Ambition to find ways of Promoting Human Rights within

the Union

Since PIL now keeps company with specialists in the fields of human rights, non-

discrimination law, European law, comparative law and the like, working together in

the project concerning the open method of coordination (OMC)2in the field of human

rights, constituted within the ‘Reflexive Governance Research Project’ (the Refgov

project), the question arises as to what the position of PIL in this kind of company

should be. Can PIL be ignored in this kind of company and in this kind of project, or

should the discipline be integrated into the debates and questions, and could it even

play a prominent role in this kind of company? This contribution seeks to answer this

very question.

C The Limitations and Scope of the Article

It should be emphasised that this search for an answer will be of only an explorative

nature for the time being. This is merely an explorative study. Another limitation of this

article lies in the selective nature of the analysis. Aspects that could be quite

interesting—for example in relation to ownerships rights, the law of evidence, criminal-

law aspects, etc—will not be explicitly included in the analysis for the time being.

Nevertheless, the scope of this contribution may be wider than its title suggests in

some areas. For example, the following issues will be addressed: classical PIL questions

(questions relating to jurisdiction, applicable law, recognition and enforcement), and

the doctrine of the ‘internationally mandatory rules’ (also known as the ‘règles

d’application immédiate’); both family law and non-family-law aspects of PIL; both

pure PIL issues and PIL issues connected with developments outside the strict PIL

domain—such as developments relating to unification and harmonisation of substan-

tive law; migration law developments; PIL issues related to aspects of ‘positive’ and

‘negative’ integration.

1V. Van Den Eeckhout, ‘Tien jaar Europees internationaal privaatrecht. Een verrassende metamorfose van

exotisch muurbloempje tot goed geïntegreerde deelnemer in diverse gezelschappen’ [’Ten Years of Euro-

pean Private International Law. A Surprising Metamorphosis from an Exotic Wallflower into a Well-

Integrated Participant in a Variety of Companies’], [2005] Nederlands Tijdschrift voor Europees Recht 289.

2OMC can be briefly defined as follows (see, e.g., O. De Schutter and S. Deakin, ‘Introduction: Reflexive

Governance and the Dilemmas of Social Regulation’, in O. De Schutter and S. Deakin (eds), Social Rights

and Market Forces. Is the Open Coordination of Employment and Social Policies the Future of Social

Europe? (Bruylant, 2005), 1): ‘The open method of coordination is one of a number of new governance

mechanisms which, from a theoretical point of view, are understood as performing a range of functions.

These include fostering mutual learning between the Member States and avoiding or limiting the phe-

nomenon of competitive deregulation in the internal market, while at the same time respecting the diversity

of national practices and the existing division of powers between the European Community and the

Member States’.

European Law Journal Volume 14

© 2008 The Author

106 Journal compilation © 2008 Blackwell Publishing Ltd.