Vice President of the 'Ligue des Droits del'Homme', France
"Citizenship and Human Rights - About the European Union's Charter of Fundamental Rights"
Lecture in the Cicero Foundation Great Debate seminar "The French Presidency and the Treaty of Nice - EU Reforms or European Vanguard?, PARIS, 16-17 November 2000
Our idea of the struggle for a Charter that would guarantee fundamental rights in Europe indissolubly links the exercise of these fundamental rights to that of citizenship, in this case of European citizenship. That is the reason why, in the following remarks, I will concentrate first upon citizenship, then upon the rights deemed fundamental, and finally upon the Charter as it is being formulated. All of this will be considered in the context of the current conditions of human rights protection in Europe.
We will take as a starting point the axiom that European democracy, as with
any concrete historical experiment of democracy, cannot be built top-down, but
only from the bottom-up. This means
(1) with and through the intervention of the civil societies of the European Union member States (and especially in regard to the Non-Governmental Organizations which animate these societies) and
(2) through the full exercise of a genuine citizenship.
And we know, citizenship is never granted: it can only be won by civic and militant action. It is practiced by the exercise of that which we take to be one of the most essential among fundamental rights, i.e. a real natural right to citizenship. I say 'natural right' for it is connected with our conception of human nature that has been characterized by Aristotle's famous expression: 'Man' (that is, of course, meaning any human being) 'is a political animal.'
Consequently, the first point is that every human being has a right to the acknowledgement of his/her citizenship where he/she is in a position to practice it; the second point, and the one that more specifically concerns our issue, is to paraphrase another famous expression, 'European citizenship will be the task of Europeans themselves.'
What Are the Roots of Citizenship?
The first assertion requires some clarification. What are, according to us, the foundations, the roots of citizenship? Are they basically due to nationality or, on the contrary, due to residence as the place of the social contract? In the first case, this is what until now has been the prevailing practice, citizenship is granted by a State to its nationals and only to them; it is not a natural right, but an attribute of the nationals, a mere faculty conferred by the sovereign power of each State. One can easily see the contradiction between the original subjection of the citizen to the State (which alone can confer this capacity) and the theory of democracy and, more precisely, of popular sovereignty, according to which every power (of the State and in the State) comes from the people, i.e. from every individual making up this people.
Characterizing this contradiction is to state simply that democracy ends where state sovereignty lies: in the international legal order (although today even it is weakened there). Yet, as the State is not just single, but double faceted (which means that it has two faces, external in international legal order and internal in domestic legal order, the two profiles of the same Janus), the subjection that weighs most heavily upon the individual because of the linkage between citizenship and nationality is not limited to the international legal order; such subjection also mutilates the nature of internal democracy by expelling from it residents deemed 'foreigners.'
In the second case: if one acknowledges a natural right to citizenship, the natural character of this right means that it can be set against every State, against every power, and that every human being, only because he/she belongs to mankind, must be able to practice it where he/she resides, i.e. where he/she settles on a long-term basis. Obviously tourism is not residence, and a conventional definition of residence from a threshold of duration would not set an insuperable problem. In other words, in our conception, every State is under an obligation to place any resident on its territory in a position to practice his/her fundamental right to citizenship. The choice between these two conceptions is essential in the present world, which has been marked for several decades by significant population migrations and also by an increasing mobility, which is increasing but highly unequal: capital, goods, services, information have become more and more mobile. As for human beings, it all depends upon their place in the worldwide economic and cultural hierarchy; it represents a mixing of their level of income, of their training and of their access to culture, but it also refers to their insertion in geopolitics (meaning their nationality and the nature of the political regime they have to live under). We know perfectly well that the majority of mankind has been put either under house arrest or sentenced to exile and to wandering, sometimes by dictatorship, sometimes by poverty, and very often, by both together.
Three Political Responses to Globalization
Three political responses to globalization can therefore be conceived:
The first consists of opposing globalization in the name of a sovereignty that clings to the past (and, to a certain extent, fantasized) omnipotence of States. This option is hopeless and useless, as worthy as the values that this strategy purportedly intends to promote.
The second one consists in enduring globalization without reacting; one accepts that it is this version that prevails at the moment, which is dogmatically free market oriented, as it inescapably destroys social regulations, cultural diversity, political balances, in the name of a total global market. This response would be to give up all that makes humanity, especially the fundamental dialectic between unity (of the human race) and diversity (of cultures and of societies), a dialectic that refuses to distinguish, and which even brings into conflict, universalism and mechanical globalization.
The third response consists in using globalization to the extent to which it is positive for mankind (and we could ask it, for example, to Nelson Mandela) but, at the same time, refuse to surrender to the total market, which simultaneously raises the questions in regard to the globalization of rights and the globalization of citizenship. In order for globalization to be in Man's service, it is obviously necessary that every human being should be in a position to be an actor, and no longer an object, within that globalization process, therefore to be able to practice citizenship at the scale in which History is to be written from now on.
Citizenship and Nationality: A Necessary Link?
The first response leads to the attempt to maintain the link between citizenship and nationality, and thus to expel more and more numerous migrants from citizenship (even though floods of migration can neither be stopped nor be reversed by anybody), but without being able to restore the effectiveness of the authority of the State which has been sapped from every direction (from above by globalization and by European integration; from below by the significant increasing of self-government, if not federalism; laterally, could one say, by the recession of public economic interventionism, by privatizations, etc.). Therefore the preservation of the traditional conception of citizenship is a dead-end.
The second response means lack of interest for the practice of rights: individuals are nearly only taken as abstract economic actors, so that citizenship itself lacks substance.
The third response, because it calls for a profound renewal of the conception of citizenship itself, is the only democratic (if not the only humanistic) answer to the reality of the present world, considering the possibility that utopian views of today may become realities of tomorrow.
Toward New Forms of Citizenship: Europe a Field of Innovation?
But this road will be long and difficult: a worldwide State is neither conceivable as far as we can see nor even probably desirable (as Kant asserted two centuries ago, rejecting the view of a State of States). Now of what can a citizen be - if not of a State? And what, except a State, can acknowledge and guarantee fundamental rights? Obviously the road has not really opened up: we have to think in larger terms, like the nineteenth century revolutionaries heaving up citizenship from the reduced scale of the antique city to the much greater one of the national State, new forms, new spaces and a new structuring of citizenship.
Here Europe has now become a precious field of experimentation and innovation: not only because that which is partly premature on a world scale is more easily conceivable on a regional scale, but also because, by its democratic traditions, by its economic, social and cultural potentialities, and by the political integration level it already reached, Europe is the most favorable place for the starting of this new qualitative stage in the history of citizenship.
But Europe must accordingly choose, as it confronts the forces of globalization, the third political response, and thus be faithful to the best part of its past.
First, this presupposes at least the inclusion of the European social model in the necessary prerequisites for the emergence of a true European citizenship (we, the French League for human rights are particularly involved in promoting the concept of social citizenship, i.e. roughly meaning the necessity of being in full possession of economic, social, and cultural rights in order to really be a citizen).
Second, the choice of an approach to European citizenship that is disconnected from the original nationalities, not only to no longer organize European political life around national rivalries but around common stakes, and also to ensure equal rights to foreigners, residents in the European Union: nationals of non-EU member States. Only then can Europe contribute to building a world in which mobility would not mean uprooting, and in which politics (that is integration into the city) would not be systematically sacrificed to economics (insertion into the market).
Therefore, because we consider that practicing citizenship is the first guarantee of fundamental rights, we want European citizenship to be acknowledged for every political animal settled on a long-term basis on the territory of the Union, whatever his/her origin and, in particular, his/her (original) nationality. This citizenship of residence must at least permit integration into a local civic game (normally including the right to vote for local elections) for any person who is in a relatively stable connection with the territory. But it should also, if one comes to a consistent point of view of this model, the acknowledgement of a right to practice citizenship fully, including the participation in the whole of democratic life.
Thus any human being has, in our eyes, authority to bring by himself/herself all over the world his/her right to citizenship, although he/she cannot bring his/her homeland the same way. This internationalist vision, for now conceivable at the level of European union, draws civic and realistic consequences from the extent of present and predictable floods of migration (particularly due to demographic differentials) and from the significant development of communication means of all sorts. At least and in any case, the mere implementation of the principle of equality requires the European Union to guarantee an equally free movement on its territory and an equal enjoyment of fundamental civil, economic, social and cultural rights to nationals of its member States and to the resident nationals of non-member States. Failing to keep this obligation would not only be to refuse to these residents access to the bases of social citizenship, but would also jeopardize the cohesion of the European civil society as it is being worked out.
About Fundamental Rights
This more classical ground will allow me to concentrate briefly upon the basic points. This, in our eyes, means firstly the effective implementation of fundamental rights. From this point of view, if the Charter of Fundamental Rights of the European Union should, as it seems that it will, represent only a cosmetic declaration, a media gesticulation, it would mean eyewash for European citizens who are already suspicious about the present running of the Union. It is, on the opposite, necessary, if this Charter is supposed to have any sense, that it guarantees the fundamental rights to any person residing on the territory of the Union, which means that it has full legal force (which implies, of course, that it has to be inserted into the treaties, whatever one may think of the idea of a future European Constitution).
And it is as much necessary that any person entitled to these rights may demand the respect or restoration of those rights before a European Court (which means an enlarged access to the Court of Luxemburg). For we have known since 1789, thanks to article 16 of the French Declaration of the Rights of Man and of the Citizen, that any society in which the guarantee of the rights is not ensured has no Constitution and therefore no democratic character.
Effectiveness must be emphasized, but also the indivisibility of fundamental rights. Economic, social, and cultural rights must be acknowledged and guaranteed as strongly as civil and political rights, firstly because such are the principles carried on a world scale by the United Nations, as showed by Universal Declaration of Human Rights in 1948, by the two UN Pacts in 1966, and also by the numerous treaties adopted within International Labor Organization (ILO) and United Nations Education, Science and Culture Organization (UNESCO). Secondly, it is because the European Union was, in actual fact, created for economic and social purposes, that it has grown up and that it remains today so powerful. Thirdly, and mainly because the principle of judicial review is at the moment ensured by the European Human Rights Court only for civil rights, but not for economic, social and cultural rights. Now the implementation of the rule of law at the level of the Union requires the extension of judicial review to all fundamental rights. The argument that economic, social and cultural rights would only be considered programmatic rights, and thus could not be guaranteed by judicial review, cannot be accepted. Any fundamental right (for instance, the right to a fair and effective trial) actually needs a systematic effort on the part of public authorities and the implementation of a public policy. Therefore, nothing can be opposed to the requirement of indivisibility, which is the only guarantee of the social effectiveness of such a Declaration or Charter.
In addition to effectiveness and indivisibility, the universality of fundamental rights cannot be ignored. It is not only a matter of the equality of rights, already mentioned, between nationals of the member States and residents who are nationals of non-member States. The guarantee of fundamental rights is a just demand because they are the fundamental concern at the heart of European construction, and of the Charter which has to be a type of manifesto in support of EU values for the next century. For these reasons, neither reservations of one State, nor escape clauses or opting out clauses, which would sanction a kind of civic and social dumping, a territorial inequality that is positively unbearable in a so-called united space, can be accepted. In the case of candidate States to membership of the EU, differentiated rhythms are of course conceivable, but even then these special regulations must be limited, objectively justified and strictly temporary, the permanent goal being upwards harmonization.
The European Charter of Fundamental Rights Remains Unsatisfactory
More generally speaking, it is vital that Europe at last means progress and not regression. The Charter must therefore combine a pawl effect (no way back anywhere) and a lever effect (upwards harmonization). Any other choice would remove all the interest of the exercise, if not arise fears of regression (especially as for social rights).In regard to all these basic principles, the draft Charter, which is likely to be adopted without any change by the European summit in Nice in a few weeks, is still unsatisfactory.
Neither the right to vote (even restricted to local elections) nor even the free movement within the Union and the equal enjoyment of all the civil, economic, social and cultural rights, have been acknowledged to residents that are nationals of non-member States, whereas everybody knows that, for demographic reasons, Europe will need more and more of nationals of non-member states to ensure its prosperity. Moreover, economic, social and cultural rights are still too often treated as second-class rights: their definition is itself almost systematically referred to in terms of national legal systems, which legitimate territorial inequality; a significant amount of social rights have not been taken into account (the right to work, the right to a minimum income, the right to a retirement pension, a real right to housing, etc.). Nothing has been decided about a wider access to the European Court of Luxembourg, and the Charter is actually planned to be only a political declaration without any legal effect.
Some think that European judges will be inspired by it, but as a matter of fact, in most of the fields it covers, the courts can already find much more complete and efficient sources of inspiration. Unfortunately, I must still add that certain articles concerning civil and political rights deserve significant criticism. For instance, the right to asylum is not clearly guaranteed between member States; and the freedom for birth control has not been listed probably to avoid an Irish veto. So, in such conditions, the Charter draft appears to represent a missed opportunity that could convince European citizens that the making of Europe could really be their own business and result in a substantially better protection of their rights.
The Charter Can Be A Genuine Progress
Nevertheless, the principle of a Charter undoubtedly represents progress for Europe. The European Convention of Human Rights is 50 years old; it does not protect economic, social and cultural rights and the concerns of a wider, and more and more heterogeneous, Europe.
But the Charter will represent genuine progress only if it ensures the justiciability of all the fundamental rights, thus guaranteeing their indivisibility, and an equal treatment for residents of non-EU member origins. Only under these conditions would it really contribute to a readjustment of the European building process in a democratic and humanistic way, providing at last a concrete meaning to the proclamation of European citizenship, until now a rather hollow expression.
The framing of the draft, however, did not go that way. The conditions in which the document was worked out can probably account for that. The constitution of a Convention formulated by the representatives of the Executive and Legislative branches of the EU and of the member States, which worked in essentially open public conditions (open meetings, information rather quickly available on the Net), clearly represents progress in regard to transparency, especially if one compares it with the usual intergovernmental conferences. But not only the dialogue with civil society (and especially the NGOs) remained summary, not to say merely formal, but the Convention worked in a diplomatic fashion, systematically avoiding voting and by seeking consensus between the representatives of the big countries, so that the intergovernmental habits were ultimately preserved.
As noted recently by the French Minister for European Affairs, this is a transparent but non-democratic process. Now, as far as fundamental rights of all the Europeans are concerned, it seems difficult to be satisfied with an agreement between a few experts finally approved only by the meeting of the fifteen chiefs of the Executive branches of the member States. Obviously, the unsatisfactory points in the draft are widely due to that proceeding (especially because of the British reluctance to admit social rights); and the continent that pretends to have invented democracy could now widely improve its way of acknowledging the fundamental rights of its citizens, no longer as a treaty but as a genuine Declaration of Rights.
It is therefore necessary to carry on with this issue even after the Nice summit, choosing more democratic proceedings. The mandate of the Convention should be extended; European and national Parliaments should be given time to discuss and improve the present draft; and civil society should be more substantially associated with these debates, in order to contribute to the development of a European collective consciousness. A genuine European citizenship can only arise that way, not top-down from a summit of fifteen heads of government, but through debate and the summoning of the whole of European civil society, bottom-up, because democracy can only be built democratically.