Rights and Their Limits: the Constitution for Europe in International and Comparative Legal Perspective

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Berkeley Journal of International Law


In the 2004 Treaty Establishing a Constitution for Europe,' the European Union (EU) took a bold step toward integrating the Continent. A key component of this enterprise is Part II of the Treaty, the Charter of Fundamental Rights. It establishes for the first time a detailed system of legal defense shields for citizens of the Union against the exercise of Union power. Whether the European Constitution is seen as just a "tidying-up exercise" or a "blueprint for a European super-state," it has been a thorny issue to tackle. It intensifies the process of integration while, at the same time, extending it through the accession of new members in May 2004. Before EU members agreed upon a final text, constitution-making for Europe encountered serious difficulties over the issue of representation of certain Member States in decision-making processes. On June 18, 2004, Mr. Bertie Ahem, the Irish Prime Minister and the President of the European Council of the EU at that time, announced the finalization of the Constitution, commenting that "you'll get a few generations out of it." This article will focus on the concept of rights under the new Constitution, especially its innovative part, the Charter of Fundamental Rights, and explore the approach taken to limit these rights. This article also places this discussion within the context of fundamental rights in general, starting with the assumption that the legal effect of a right cannot be assessed properly by only ascertaining the definition of its substantive scope. The limitations on a right are as important as its scope in determining its legal content, as virtually no right is absolute in light of the need to balance individual interests and the requirements of community life. Since the very first formulations of human and civil rights instruments, jurists have had to interpret the limits on those rights. For example, can domestic constitutional rights, which can be limited "by law," be made legally meaningless by a domestic legislature? Can international guarantees be outmaneuvered by domestic measures in the case of a right guaranteed only through, or within the confines of, national legislation? Thus, the doctrine of limitations on rights arose within the context of the general doctrine of fundamental rights. Particular guarantees of rights are tethered to the context and text of the specific document embodying both rights and limits. Still, the various national, regional, and universal guarantees have cross-fertilized each other. In the context of the EU, limits to Union power, in the absence of a Union rights catalog, were drawn up in close approximation to national rights catalogs and the regional human rights instrument-the European Convention on Human Rights (ECHR). So were the limits to those limits. Section 36 of Article 52 of the Charter of Fundamental Rights of the European Union, now Article 11-112 of the Constitution, reflects this heritage by attempting to harmonize the interpretation of Charter rights with the jurisprudence of rights under the ECHR and common domestic constitutional traditions. Section 1 of this general provision on the Charter's limitation of rights, refers to categories of limitations derived from both domestic constitutions and the ECHR and other rights catalogs, such as the United Nations' International Covenant on Civil and Political Rights (ICCPR). It is apposite, therefore, to present first the nature of this new Europe, as envisioned and defined by the new Constitution. This article will then delimit the rights under the Constitution by reference to (1) the history of rights, (2) important domestic traditions-in particular, the U.S. Bill of Rights and the German Basic Law, and (3) international guarantees and their limits, such as those established universally under the ICCPR and regionally under the ECHR. Finally, this article will evaluate the limits drawn in the Charter of Fundamental Rights. In addition to analyzing the contents of the Charter, this comparative and international legal analysis will allow us to answer the question: Does the Charter do justice to the critical issue of how to properly limit rights?

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