Below is the speech which I gave on Thursday 5th February 2015 at The Hague Summit on International Law & Human Rights, entitled “Towards a Hierarchy of Human Rights Norms Internationally – the Experience of European Integration”.
I wish to thank the organisers for having been invited to this event and for the chance to speak to you all on the subject of human rights globally, and more concretely in Europe. I am Mary Honeyball, a Member of the European Parliament, and I have been involved in the promotion of human rights, in particular women’s rights, both in my home country, the UK, and in the European institutions.
I wanted to speak today on the subject of an international hierarchy of human norms, because it has been our experience that overlapping systems of norms can lead to fragmentation, and with it the worry that the human rights we take for granted in Europe are not enjoyed to the same extent, or are not treated in the same way, in other countries. My proposition is that in order to render human rights effective, we must go beyond the traditional state-international organisation dichotomy, and instead use the phenomenon of regional integration as a way to filter what can sometimes be quite abstract notions, and apply them practically in various regions. This can be done in a variety of ways, but I would like to focus on the application of international and supranational norms by supranational courts, as evidenced by European integration.
International law already has a heavily entrenched system of human rights protection. A whole panoply of multilateral treaties, not least the UN Charter, has created a whole series of obligations on signatory states. Enforcement is a constant problem, as is the watering down of provisions or acceptance of reservations in order to ensure maximum participation of state parties. This means that countries are subject to a dizzying array of obligations, not always standardised, and the same rights are not always interpreted coherently by human rights bodies and courts.
The main problem with international human rights law as I see it is the lack of a single court providing a definitive ruling. The International Court of Justice is clearly incapable, due to its very nature as a forum inter-state dispute. What is needed is a dedicated human rights court, before which the individual can claim the infringement of his or her human rights.
The logical response therefore is the crux of my argument – the only existing actors capable of rendering international norms effective are established supranational courts. This is so because of subsidiarity – a very popular word in EU circles – as such courts exist at an intermediate layer between the national and the international, and therefore can both take inspiration from international norms while rendering them applicable and consistent in the states under their jurisdiction. This does not mean that I think this is an ideal solution – far from it, as different levels of integration and the balance between countries may well skew interpretation – but that it is the most effective choice at this moment.
Regional integration law generally
This is key to any understanding of human rights law internationally, but I want to talk about the specifics of regional integration law, something with which the human rights community must come to grips if it is to ensure compliance across countries.
Increasingly, regional integration is confronted with fundamental rights as its goals of economic integration begin to be realised. In the EU, for example, we have had years of case-law defining citizens, workers, spouses and family members, moving away from the initial view of an individual as a homo economicus to something far more substantial, even though it has received criticism for a concept of “market-based citizenship”.
In an ideal world, we would find a paradigm via which the international norms agreed upon are respected, but which doesn’t negatively affect the institutional arrangements agreed upon by the Member States, but is this possible?
In integrating, nation states, the classical subjects of international law, are searching for a new paradigm, one in which sovereignty is pooled, limited, divided, any number of new words. This means that some specific areas they cede competence to a supranational institution, tasked with making decisions binding upon the Member States. This requires constitutional change, and also a supranational court to police the division between the competences of the supranational authority and those of the state.
In this way, notions of the relationship between the state and the international community are anachronistic and inadequate, failing to take into account the increasing number of layers separating the citizen from the law governing him or her. The raison d’être of human rights is their universality, and we should worry that the application of these rights falls short of this consistency.
I wish now to speak more specifically about the regional integration experience of Europe. I use the term Europe not simply to refer to the European Union, but the human rights integration which has gone on under the aegis of the Council of Europe. Like other regions in the world, Europe is subject to a series of regional integration measures, and so the application of human rights norms must be enacted not simply by a national court, but by supranational courts too, leading to a confusion of jurisprudence on the subject of human rights. This problem is particularly acute in the Member States of the European Union, which are all parties to the European Convention, and so now have to take into account the jurisprudence of two final courts of appeal.
The European Convention of Human Rights
The Convention on Human Rights is still the most extensive safeguard of European rights, and is still the only human rights agreement providing the individual with a wide-ranging recourse against his or her own state.
Procedurally, the complainant must exhaust all domestic remedies before application is made to the Court in Strasbourg, but the wide ranging protection afforded to the complainant under the Convention still means a complainant’s rights have a good chance of being upheld categorically.
The European Union human rights acquis
Since the entry into force of the Treaty of Lisbon, three essential changes have taken place in terms of human rights law, all contained within Article 6 of the Treaty on European Union. First, the Charter of Fundamental rights has been made legally binding, with the same status as the treaties themselves. Secondly, the EU is required to accede to the European Convention, with the caveat that this cannot extend the Union’s competences. Finally, the jurisprudence of the Court of Justice on the ECHR and the constitutional traditions common to the Member States constitute general principles of EU law, is codified into a Treaty provision.
The ECJ has pushed a human rights agenda over a series of cases since the 1960s, but has rooted the obligations inside its own legal order, and not in relation to external treaty obligations, the ECHR being a notable exception. It did so not under its own steam, but pressured by a series of judgments from Constitutional Courts in Germany and Italy, which threatened disobedience unless the protection afforded by the EU matched that of the Member States. A messy compromise took place, by which the EU accepted itself bound by constitutional traditions common to the Member States, and the Convention on Human Rights, in spite of not being a party to the ECHR, and therefore not bound directly by that Court’s decisions.
More importantly, while the Charter of Fundamental Rights contains less extensive and slightly different rights, access to the Court is much easier. While the criteria for a direct action by an individual to the Court of Justice still remain restrictive, a national court may send a preliminary ruling to the Court of Justice, an option which becomes a requirement when it is considered by the highest court in the land. This allows the Court of Justice to render a final, definitive decision on a question of interpretation of European law which is then applicable in its Member States.
On the other hand, the nature of the Charter is, as stated in Article 52, that it applies only where the Member States implement EU law. This evidently leaves a glaring omission in that European fundamental rights seemingly lose all relevance where a situation is deemed purely internal, even though the Court of Justice has begun to chip away slowly but surely at that concept.
Relationship between the two
Some have characterised the relationship between the two courts as multilevel constitutionalism, with each court having an influence on the case-law of the other. We must remember that courts are not static institutions, but instead are comprised of people who seek to find solutions. In this way, much emphasis has been placed on the importance of inter-jurisdictional dialogue, to find widely applicable solutions. Additionally, having seen the nature of how an individual applies to the different courts, we can clearly see that when an individual falls outside of the criteria required for access to the Court of Justice, the complainant still has the option of the Court of Human Rights to fill that gap, the two systems mutually reinforcing each other.
Very rarely has the question actually been directly addressed by the courts, each normally deferring to the other in the ambit of their respective competences. However, the Court of Human Rights has shown that it is the Member States of the EU who are to be punished for implementing EU law in a way that contravenes human rights. This situation could be avoided if the European legislator were able to make specific reference to ECHR case-law, for example. This form of ex-ante, instead of just ex-post, control of human rights in legislation would mean many fewer cases before the courts, and also stronger protections already built into legislation.
Witness the recent attempted accession of the EU to the ECHR. Once more, the European Court of Justice was desirous of protecting the autonomy of the Union legal system. Previously, in 1996, the court had decided that as EC law stood at the time, the Community had no competence to accede to an international human rights treaty, even though the ECJ had been quietly building its own human rights jurisprudence and even making explicit referrals to the case-law of the Court of Human Rights.
Importantly, and in line with its other jurisprudence on the primacy of EU law and effet utile, the Court has also set itself up as the arbitrator of the extent of its own competence, the kompetenz-kompetenz, or compétence de la compétence. This has meant not only that an external court may not rule on issues of EU law, but in fact an external court cannot even suggest the outer limits of EU law, no matter how self-evident these may be.
While some maintain this would have provided more certainty, let us for a moment examine the proposition. Essentially, a court with a much narrower competence is being asked to pass judgment on a whole other, foreign legal system. This is one of the reasons the accession was unacceptable to the Court of Justice. If we instead change the focus of the rights, and our courts apply international norms alongside their norms of their legal systems, we will much sooner reach an equilibrium in rights protection.
Much of what I have said is very Euro-centric, but I see no reason why this is not generalisable. The EU is the most integrated regional organisation in the world, and as such many of the problems will likely affect other regions as they integrate further, not just in the field of human rights, but in other areas too. Interestingly, the Eurasian Customs Union has tried to skip the initial steps undertaken by the Court of Justice in the early days of European integration, putting in place a system of hierarchical court authority and specialised institutions.
The logical standpoint is therefore, short of subsuming models of regional integration into one hierarchical structure, at the head of which stands one international body with a court, presumably the UN and the ICJ, to construe the law of worldwide organisations in line with their common human rights obligations. While, as I have mentioned, there are some disparities between what each country has accepted, all members of the UN have accepted at least the principle, and have done so on a long term basis. Why not then use this as our starting point, and put forward the proposition that international and supranational courts of all hues must interpret the obligations incumbent on states through the prism of human rights? This solution is the most viable, considering the sheer numbers of international jurisdictions which are being called upon increasingly to construe the obligations of their Member States in line with human rights obligations.
This could be the real benefit of constitutional pluralism. All judges enjoy some level of freedom in the application of the rules of their legal system. It assumes that judges retain sufficient freedom to interpret their legal systems in accordance with other external norms. Instead, while there may be an underlying acceptance of common international human rights norms, national and regional judges also have to justify their responses in relation to the legal system they are taxed with defending.
To return to the question above, is it possible to respect both international human rights norms and the specificity of regional integration mechanisms? It certainly seems doubtful, given the need for these regional entities to ensure the effectiveness of their own laws and with increasingly multi-polarity in international and regional legal systems, is this sustainable? Many more actors with divergent views will need to be consulted on their interpretations of human rights, risking even more fragmentation. However, as I have also pointed out, can we really render international norms effective without recourse to these supranational institutions? At least in the short term, it seems the answer is no.
In the longer term, international organisations will need to try to make regional systems converge on the subject of human rights, so that these rights can be equally enjoyed, as was the original intention. Without this commitment, I fear that human rights will yet remain too abstract from the very people they try to protect.