At the opening ceremony of the Nice European Summit on 7 December 2000, the European Charter of Fundamental Rights was signed by Hubert Védrine (Minister of Foreign Affairs, President in office of the Council), Nicole Fontaine (President of the European Parliament), and Romano Prodi (President of the European Commission). This represents the adoption by the EU of the Charter.

The project to draft an EU Charter of Fundamental Rights was initiated to collate and publicise the rights and freedoms which should be enjoyed by all within the EU, and brings together individual, political, and social rights.

The Charter has not at the moment been incorporated into the Treaties, which would have the effect of making it legally binding and enforceable. However, a commitment has been made to reviewing its status at a future Inter-Governmental Conference to be held in 2004.

On the subject of its legal impact, Nicole Fontaine said at the ceremony "A signature represents a commitment, a rule which applies both in our citizens’ everyday lives and to the most formal official documents. [...] I hope that the European Council will succeed in giving the Charter, in the Treaty, the legal force which will guarantee its credibility and effectiveness. As far as the European Parliament is concerned, and because I am signing the Charter on its behalf, I trust that all citizens of the Union will understand that from now on, and even though it has not yet been fully incorporated into the Treaty in legal terms, the Charter will be the law guiding the actions of the Assembly they have elected by universal suffrage. From now on it will be the point of reference for all the Parliament acts which have a direct or indirect bearing on the lives of citizens throughout the Union, and from now on it will be binding on us. Our citizens can rely on the European Parliament to ensure that it is respected in every area of the life of the European Union."

It is expected that, since the EU member states have already committed themselves to "respect for human rights and fundamental freedoms" (Treaty on European Union, Article 6), the rights agreed in the Charter will influence the decisions of the European Court of Justice in Luxembourg. Many of the individual rights refer to existing legislation, and member states have all ratified the Treaty on European Union, article 6.2 of which upholds Human Rights and Fundamental Freedoms. They have also ratified the European Convention on Human Rights (ECHR) which comes from the Council of Europe in Strasbourg and not the EU. It could be said that the Charter simply clarifies which rights must be upheld.

The Charter applies to ALL people, regardless of legal status within the EU, and only where specified is it intended to cover a smaller section of society. The European Commission has said "in respect for the principle of universalism, the rights set forth in the draft are generally given to all persons, irrespective of their nationality or residence. The position is different for the rights that are most directly bound up with citizenship of the Union, which are given only to citizens (such as participation in elections to the European Parliament or in local elections), and for certain rights that are related to a particular status (rights of children, certain social rights of workers, for example)". (Communication from the Commission on the Legal Nature of the Charter of Fundamental Rights of the European Union, Brussels, 11.10.2000, COM(2000) 644 final).

This was confirmed to QCEA in a letter from Keith Vaz, UK Minister for Europe, who states that "the basic fundamental rights of those who are resident or working illegally in the EU are protected". He writes: "there are of course certain absolute rights, such as the right to life and the right not to be tortured, which should clearly apply to all persons within the boundaries of the EU or anywhere affected by EU policies".

It is not new for those illegally in Europe to have their rights recognised. The European Convention on Human Rights (ECHR), which comes from the Council of Europe in Strasbourg and not the EU, applies to "everyone within the jurisdiction" of the signatory states, including all the EU member states. It includes the prohibition of slavery and forced labour, to which undocumented migrants in particular are susceptible. But there are certain individual rights in the Charter which are new. The inviolable right to human dignity is the most significant of these, but trafficking in human beings is prohibited for the first time also, and the rights to education and to access to preventive health care also seem to apply to everyone regardless of legal status. The right to fair and just working conditions applies to "every worker".

However, this leaves a number of problems. In particular, while the actions of individual member states can be challenged in relation to human rights abuses, it is very difficult, and in some cases impossible, to challenge the actions of the EU itself. We have in mind particularly the Common Foreign and Security Policy and policy on Justice and Home Affairs. There is no external control on the EU, and since it has been decided that the Union can not itself sign up to agreements such as the ECHR, the mechanisms in place to uphold them can not be used. The EU's own European Court of Justice in Luxembourg can only deal with certain sectors of EU activity; access to this court is very restricted for individuals, and even then, the court’s interpretation of the ECHR may be divergent from that of the European Court of Human Rights in Strasbourg. The Charter will do nothing to improve any of these issues.

There is work still to be done. We must not let the EU accept the Charter, and then relax in the certainty of its own righteousness. We should continue to press for a Treaty that allows the EU to adhere to the ECHR. The ECHR itself is out of date in some respects. For example, it still allows the death penalty to be used in time of war. We understand that there are moves in the Council of Europe to amend it. The ECHR is for individual rights and individuals can appeal to the Strasbourg court if their government fails to provide redress. The court can order financial compensation. For social rights, all member states have ratified the Council of Europe’s Social Charter. But most of them have opted out of some of its provisions, and only six EU member states have ratified the Revised Social Charter of 1996. The only enforcement measure for the Social Charter is the ‘naming and shaming’ when shortcomings are reported. The public needs to know about the various human rights agreements and the ways of challenging infringement of rights. And for the Charter itself, it must not be forgotten that the process does not end here. The text should be regularly revised and improved: it is recognised that it is not complete, excluding for example the rights to housing or a guaranteed minimum income. In short, while the adoption of the Charter is a major step forward, we want a proactive Union, which does more than simply "recognise" rights and freedoms.

Rachel Bryers

Quaker Council for European Affairs

December 2000