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Chapter 10 The European Union Michael Newman The founding treaty of the European Economic Community, signed by the original six member states in Rome in 1957, did not mention human rights. Forty years later, a new treaty agreed to by the current fifteen member states in Amsterdam, included specific clauses on the subject as conditions of membership for the European Union. And in Cologne in June 1999 they decided that it was time to establish a Charter of Fundamental Rights. The task of elaborating this charter was then entrusted to a convention, and the European Council at Nice adopted a final draft in December 2000. The objectives of this chapter are to explain why this evolution in the EU's human rights agenda has taken place, to assess the contemporary situation , and to evaluate the prospects for change.1 But before turning to the substantive issues, it must be noted that the European Union is not the primary European legal framework in which human rights issues have been codified and enforced. This has been the task of the European Convention on Human Rights (ECHR), the parent body ofwhich is the Council ofEurope. These institutions not only predate the European Union and its predecessors, but also remain quite separate from them. All the member states of the European Union are also members of the Council of Europe and have ratified the ECHR, but the European Union itself is not a member of the Council ofEurope or a signatory of the ECHR. Nevertheless, the Council ofEurope is a gatekeeper for the European Union in the sense that applicants for the latter are now expected to secure prior membership of the former. It is therefore crucial to consider the ECHR if human rights within the European Union are to be understood. Following a briefoutline of the ECHR, the chapter explores the evolution of the EU agenda in relation to human rights, considers some of the key issues in greater depth, and finally examines the possibilities for reform, with particular reference to the Charter of Fundamental Rights. The European Union 183 The European Convention on Human Rights At the time ofits foundation in 1949, the Council ofEurope was a purelyWest European institution, which was largely immune from the direct influence ofthe Soviet bloc and the polemics between East and West thatwere to characterize debates over human rights in the United Nations. Signed in Rome in November 1950 (and coming into force in September 1953), the Convention for the Protection of Human Rights and Fundamental Freedoms (the formal title ofthe ECHR) was therefore primarily liberal in its orientation.2 There are several weaknesses in the practical application of the ECHR. Individuals have experienced considerable difficulties when seeking redress against their governments in terms of long delays and expenditure. The Convention's standards are sometimes minimal, so that, for example, the alleged need for security still enables Britain and France to restrict the flow ofinformation in a way that would be unthinkable in Sweden or the United States. There are also cases where political factors have clearly influenced decisions. For example, in 1978 the European Court of Human Rights was not prepared to condemn British treatment of suspected members of the IRA as "torture" under Article 3. This may have avoided the risk of noncompliance by a signatory state, but it was almost certainly a political rather than a legal decision (Bagshaw 1994, 24) Furthermore, the "war against terrorism " in the aftermath of the attack in New York on September 11, 2001 has led to an erosion of traditional rights, with the British government seeking a derogation of Article 5 of the Convention (guaranteeing the right to no imprisonmentwithout trial) for suspected terrorists. Yet despite its lapses and structural weaknesses, the ECHR is normally regarded as the most successful ofany international regime in the world in relation to civil rights (Donnelly 1996, 213-15}, and governments have complied with the judgments and changed their own laws where necessary. However, there is an important distinction in terms oflegitimacy and power between the role of the ECHR in relation to its long-term and more recent members. West European liberal democracies devised a convention that substantially reflected existing domestic norms and legal codes. They have therefore tended to conform to ECHRjudgments because they have attached importance to their reputations in relation to human rights and because the European Court of Human Rights generally provides reinforcement for conceptions that are already regarded as legitimate. This is not necessarily so...

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