DeBurca_BeyondTheCharter

DeBurca_BeyondTheCharter - Beyond the Charter How...

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Unformatted text preview: Beyond the Charter: How Enlargement has enlarged the Human Rights Policy of the EU Gráinne de Búrca * 1. Introduction In recent years a number of significant legal changes in the landscape of human rights protection in the European Union has taken place. Since 2000, the great majority of commentators has focused on the significance of the Charter of Fundamental Rights which was drafted and proclaimed in that year, 1 on its subsequent reception by the EU legal and political community, 2 and more recently still on the debate which took place within the Convention on the Future of Europe 3 about its proper role within a new European constitutional settlement. 4 However, the potential of the Charter as a robust instrument of human rights protection has been undermined in part by the provisions inserted as a result of the intense political focus upon certain of its key provisions both at the drafting stage and again during the proceedings of the so-called constitutional Convention. The twin political concerns with limiting the potential of the Charter to expand or alter the powers of the EU on the one hand, and limiting the justiciability of certain of its provisions on the other hand, have sapped its vitality as a legal instrument in various ways. The contention of this article, however, is that a number of other developments have taken place which - in mostly unanticipated ways – may contribute more to strengthening the scope and shape of EU human rights policy than the Charter alone. In particular, two developments have combined in recent years to open the way for a more general and comprehensive human rights policy which, while less concerned with the contentious ‘competence’ and ‘justiciability’ debates generated by the Charter of Fundamental Rights, is already beginning to manifest itself in interesting ways. The first of these developments was the shaping of a more principled and graduated ‘crisis- response’ procedure for the suspension of the rights of Member States in response to Department of Law, European University Institute. Thanks are due to Berdi Berdiyev and Larissa Ogertschnig for their research assistance. 1 Official Journal of the EC [2000] C 364/1. For accounts of the process, see T. Goldsmith “A Charter of Rights, Freedoms and Principles” (2001) 38 CMLRev 1201 and G. de Búrca “The Drafting of the EU Charter of Fundamental Rights” (2001) 26 E.L.Rev. 126. 2 See e.g. J. Morijn, “Judicial Reference to the EU Fundamental Rights Charter” http://europa.eu.int/futurum/documents/other/oth000602_en.pdf , and more generally P. Craig and G. de Búrca, EU Law (3 rd edn). p 362. 3 This Convention took place between February 2002 and July 2003, and most of the official documents relating to the proceedings of the Convention and its working groups are to be found on a dedicated website, http://european-convention.eu.int/ ....
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This note was uploaded on 02/05/2012 for the course 790 395 taught by Professor Tillery during the Fall '09 term at Rutgers.

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DeBurca_BeyondTheCharter - Beyond the Charter How...

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