THE EUROPEAN CONSTITUTION FOR VALUES, HUMAN RIGHTS, AND GENDER EQUALITY

UNIVERSITY OF ATHENS

SCHOOL OF LAW, ECONOMICS, AND POLITICAL SCIENCES

DEPARTMENT OF POLITICAL SCIENCE AND PUBLIC ADMINISTRATION

Master’s Program: “European and International Studies”

COURSE: INSTITUTIONAL SYSTEM OF THE EU

PROFESSOR: P. Ioakeimidis

First Semester Assignment

THE EUROPEAN CONSTITUTION

FOR VALUES, HUMAN RIGHTS AND

GENDER EQUALITY

CRITICAL ANALYSIS

Anna Karamanou

07.01.2005

THE EUROPEAN CONSTITUTION

FOR VALUES, HUMAN RIGHTS, AND GENDER EQUALITY

Anna Karamanu

INTRODUCTION

The building of a European political union and the overcoming of Europe’s division began in recent years, after the end of the Cold War, with the key moment being the accession of ten new member states to the EU on May 1, 2004. For many analysts, the end of the ideological struggle between the East and the West signaled the promise of a new world order that would place human rights at the center of international politics. However, reality disproves this every day. The inability of the UN to fulfill its promises of human rights protection is the same today as it was during the Cold War (Tony Evans, 2001, University of Southampton, “The Politics of Human Rights-A Global Perspective”, Pluto Press, p.27).

Human rights occupy a central position in the European Constitution. This is demonstrated by the fact that they are included among the values upon which the Union is organized and operates, while among its main objectives are the fight against all forms of discrimination and the promotion of gender equality. The most important of all is that the Constitution “recognizes the rights, freedoms, and principles set out in the Charter of Fundamental Rights, which forms the second part of the Constitution.” Furthermore, “The Union seeks accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms.”

The brief analysis that follows will attempt to shed light on the issue of the protection of fundamental rights and the promotion of gender equality offered by the Constitution. It will assess whether the common values upon which the European framework is based translate into positions and specific policies of the EU and will identify omissions or weaknesses in the Constitution.

DIALOGUE ON THE VALUES OF THE EU

According to the European Constitution, the Union is based on values such as human dignity, freedom, democracy, equality, the rule of law, respect for human rights, and the rights of minorities. These values form the foundation and prerequisite for the existence of the EU, and are shared by its member states within a society of pluralism, tolerance, solidarity, justice, and the prohibition of discrimination. The fact that human rights and equality are included among the Union’s values is very important, as it both creates a strong legal basis for their effective protection and lays the groundwork for a common European identity. However, the demand for the inclusion of gender equality among the Union’s values was not met, despite fifty years of European policy and rhetoric in favor of gender equality.

The theorists of integration argue that the dialogue on values is very important in the process of European integration and does not concern only intellectuals, but people from different backgrounds who must find common ground. Despite the fact that there have been exchanges of views between intellectuals and political elites on the need to create a European supranational community since the end of the Second World War, the general public has been excluded from this dialogue. As a result, there is no acceptance or identification with a core set of common European values.

Etzioni argues that the semi-supranationality of the EU, particularly when high economic integration is combined with low political integration, cannot be sustainable because markets are not independent systems with their own distinct dynamics; they are closely interconnected with the politics and society of which they are an integral part. Markets cannot function without political institutions and without social values. In free societies, important decisions regarding economic policy seriously consider the value system and the consensuses that are created; otherwise, the sense of alienation increases, which could endanger the sustainability of the Union (Amitai Etzioni, 2001, “Political Unification-revisited,” p.xxxiii).

“By placing human rights at the highest position in the pyramid of values, Europe shows what the difference is between European culture and other cultures. This is the example that Europe can offer to the world.” (Mikulas Dzurinda, February 2002, University of Berlin, The Debate on the European Constitution).

“With the values it promotes and the model of cooperation/integration it embodies, the European Union appears in the international system as the exemplary model to be emulated and copied. It appears as a successful case of peaceful resolution of long-standing historical conflicts. The Union is therefore ‘the force that wins hearts globally,’ despite its internal problems and disagreements. Other powers may rely primarily on military strength. The Union primarily relies on values and example. History teaches that values and example ultimately prevail, not military force that ignores humanitarian values…” (P. Ioakeimidis, 28.02.2003, article, TA NEA, p. N06).

European identity and the “demos”

As the Eurobarometer often shows, only a very small percentage of Europeans identify with Europe. Most people emphasize only their national identity, and their relationship with Europe is linked solely to the benefits their country gains from EU membership. The argument that the EU does not have a “demos,” but many “demos,” means for many that the “people” are connected only by national ties—a position that contains strongly racist elements. Furthermore, this stance could undermine the increasingly multicultural democracies. According to Richard Bellamy, the lack of a “demos” is primarily due to the absence of a common language, the media’s political agenda, and the differing ways in which various regions of the EU perceive values and human rights. (R. Bellamy, Paper for the CIDEL Workshop, “Constitution-making and Democratic Legitimacy in the EU,” London, 12-13 Nov. 2004)

The idea of creating a common identity based on human rights and democratic principles seems to be gaining ground. The supranationality of the EU requires a different approach to identity, without this meaning that the integration processes are fundamentally different from those that created national identities. This is partly why particular emphasis is placed on human rights, in order to create a transnational identity based on specific values. “European identity may mean nothing more than unity within national diversity,” argues Habermas (Maria Koblanck, June 2003, KU Leuven).

The essence of European integration is linked to the creation of a Europe with which people can identify. This need was very vividly expressed by Jacques Delors when he said the famous phrase, “No one can fall in love with the Common Market,” while Chris Patten has argued that “our actions in the field of human rights are the epitome of the transformation of the EU from an economic to a political Union” (C. Patten, 2000, Complementarity in the Human Rights Arena, Human Rights Journal, vol.21, p.311).

HUMAN RIGHTS IN THE EU

The initial treaties of the EU made no reference to human rights. For the first time, a direct reference was made in the Amsterdam Treaty. This absence caused many problems and was considered part of the democratic deficit of the Community. Eventually, since many Community acts concerned human rights, the issue of human rights protection at the Community level was raised, but also for another reason: Even when rights were protected by the European Convention, the European Court could not accept appeals against European institutions, since the Community had not acceded to the Convention. In these cases, in order to address the issues and in the absence of any relevant provision in the Treaties, the European Court provided alternative solutions. (Dolores Morondo, 2003, “Europe and Human Rights” University of Urbino, p.92)

Until today, the protection of human rights in the Union is primarily based on the case law of the European Court of Justice, which has elevated the protection of human rights to a part of the general principles of action of the Union and Community law. In order to defend these rights, the European Court ruled that it could rely on the constitutional traditions of the member states and the international treaties that the member states have signed. However, this interpretation often created problems,

The decisions of the European Court of Justice reflect both the limitations of European supranationalism and the lack of a substantive dialogue on values. The Court often engages in judicial activism and even exercises social policy in cases where there is no Community legislation. (Amitai Etzioni, 2001, *Political Unification-revisited*, p. xxxiv).

For all these reasons, at the European Council in Cologne in June 1999, the need for a list of fundamental rights was strongly emphasized. The Summit entrusted this task to the Constitutional Assembly, a representative body of 62 members. The very composition of the Assembly was, in every respect, a remarkable innovation. It should be noted that for the first time, during the drafting of a foundational text of the Union, conditions of full publicity and transparency prevailed. (Giorgos Papadimitriou, 2002, *The Constitutionalization of the European Union*, Papazisis Publications, p.63).

THE CHARTER OF FUNDAMENTAL RIGHTS

The incorporation of the Charter of Fundamental Rights into the main body of the Constitution fulfilled the demand for strengthening the protection of fundamental rights in the Union through their constitutional enshrinement. It is very important that the Charter acquires legal force, moving beyond the level of a mere political declaration. The Charter constitutes a unified and coherent list of fundamental rights, which are summarized in the following areas:

1. Dignity

2. Freedoms

3. Equality

4. Solidarity

5. Citizens’ Rights

6. Justice

The content of the Charter is broader than that of the ECHR, which is limited to civil and political rights, while the Charter also includes other areas, such as social rights of workers and the protection of personal data.

CRITICAL EVALUATION OF THE CHARTER

Undoubtedly, the Charter is a very important document, but not without its weaknesses. The reactions from citizens and organizations were varied: Federalists initially feared that the European Council’s intention was to approve the Charter in order to avoid the Constitution. Eurosceptics argued that human rights did not require institutionalization. Others thought that emphasis should be placed on the fact that citizenship also entails obligations, beyond rights. Meanwhile, many legal experts expressed the view that there would be confusion of competences between the European Court of Justice and the European Court of Human Rights.

Supporters of the Charter emphasize that the ignorance of citizens about their rights arising from the Treaties is largely responsible for their opposition to European integration, and therefore they see the Charter as the foundation of European citizenship and a common European identity. Critics, on the other hand, argue that the Charter supports controversial values, such as the abolition of the death penalty, the priority it gives to industrial strategies over human life in embryo research, as well as the legal recognition of different forms of marriage and family.

NGOs emphasize that a comparison with existing rights highlights the significant gaps in the Charter, and despite the pressure they exerted, they were unable to expand the rights. For example, the European Parliament’s Women’s Rights Committee, as well as the European Women’s Lobby, fought hard to include gender equality in areas beyond the workplace (Article 23). One of the weaknesses of the Charter is that it makes a distinction between “rights” and “principles.” This unfortunate development will result in the categorization of fundamental rights into more and less important ones, with serious consequences for the interpretation and application of the provisions. (Human Rights and Democracy NGO Network, Nov. 2004).

It is, however, very positive that the Charter addresses modern issues arising from the use of new technologies and genetic engineering, recognizing rights related to the protection of personal data and rights linked to bioethics (such as the prohibition of eugenic practices and reproductive cloning, as well as the conversion of the human body into a source of profit). It also responds to legitimate demands for transparency and objectivity in the functioning of the EU administration, recognizing citizens’ right to access Community institutions and documents.

Another very positive aspect of the Constitution is the opportunity it provides for ordinary citizens to appeal to the European Court of Justice for acts of the EU.

Political Rights

The way the Charter addresses political rights is somewhat problematic. The articles that include freedom of opinion, expression, religion, and assembly are specific and clear. However, the right to vote mysteriously is not mentioned. Of course, one could argue that since only democratic regimes are accepted as EU members, the right to vote is self-evident. (John Perry, 01/03/2001, article, Federal Union, UK)

Also, both the first part of the Constitution and the Charter recognize the right of any European citizen residing in a member state of which they are not a national, to participate in local elections and European Parliament elections. This somewhat limited, rather than fundamental, right reflects the embryonic state of European citizenship. However, the Union needs European citizenship and a common identity that will stem from the political community, not ethnicity (unity in diversity).

The scope of the Charter is also very limited. Article 51 clarifies that its provisions are addressed to the Union’s institutions, bodies, and agencies, in accordance with the principle of subsidiarity, and to member states only when they are implementing Union law. However, several articles clearly apply both at the Community and national levels, such as those concerning social security and healthcare protection (Articles 34 and 35). Experts’ opinions converge on the binding nature and legal effects that the Charter can produce, despite the limitations imposed by Article 51.

The right to life (Article 2) has already sparked intense debates among those who are against abortion and in favor of the “rights of the unborn child.” An issue also arises with compulsory military service, as Article 5 prohibits forced or compulsory labor. Social rights have also come under fire from critics of the Constitution. They argue that the powers of the European Court will be further expanded to shape social policy and that the Court will have the final say on what is in accordance with “human dignity,” “the integrity of the person,” “freedom and security,” “respect for private life,” “the right to marry,” and many other areas covered by European legislation.

“The truth is that the incorporation of the Charter of Fundamental Rights into the European Constitution is more about power than rights” (Antony Coughlan, 2003, TEAM-the European alliance of euro-critical movements, Working Paper No 10). He argues that there are enormous differences between the member states that make a commonly accepted system of rights impossible and cites euthanasia and drugs, which are legal in the Netherlands but not in other EU countries, as an example.

Social rights

The European Trade Union Confederation states that the agreement on the Constitution was made at the lowest common denominator and criticizes the British government for attempting to exclude the Charter from the Constitution. “They were concerned about social provisions, such as the right to strike, the right to safe and decent working conditions, and the right to social assistance. And while they could not exclude it, they eventually agreed when it was explained that it would have limited application… The fact that the Charter will have legal force in the European Court means that cases brought by unions to court will have a stronger legal basis” (ETUC, 2004).

Professor of Labour Law Brian Bercusson from King’s College London, in a study he prepared for the British trade union organization Trades Union Congress (TUC), argues that the most important feature of the Charter is that it opens new paths, including not only traditional political and individual rights but also a long list of social and economic rights. Therefore, the Constitution includes provisions, among them fundamental trade union rights, which are at the heart of labour law in Europe. (Trade Unions Congress: International web, 06/09/2004). TUC President Brendan Barber expresses his satisfaction with the particular and specific role the Constitution gives to social dialogue and social partners. “Trade unions are granted permanent access to decision-making – something different from the nightmarish experience of Thatcherism.” (TUC Press release, 08/07/2004).

Migration and Asylum

For the approximately 15 million foreign nationals living and working in various Member States, Article 21 of the Charter is very important for the elimination of discrimination and the promotion of equal treatment. However, the restrictions on the right to vote do not facilitate the smooth social integration of migrants. For this reason, a mechanism is needed that would allow foreigners to apply for European citizenship based on permanent residence rather than nationality. The European Parliament, through its annual human rights reports, has repeatedly called for the full recognition of political, economic, and social rights for nationals of third countries who legally reside in the EU.

Amnesty International, from a different perspective, criticizes the EU for prioritizing “security” and the fight against terrorism over the protection of human rights. The expressed satisfaction, it argues, with the inclusion of the Charter in the European Constitution is not accompanied by determination for its implementation, as human rights are daily violated within the EU’s borders. (Amnesty International Assessment of EU Human Rights Policy – Recommendations to the Irish Presidency, January 2004).

Amnesty International argues that the EU, with the legal personality it gains through the Constitution, should ratify the 1990 Convention on Migrant Workers and criticizes the fact that asylum seekers, refugees, and migrants often become targets of racist attacks. In recent years, there has been a tragic rise in human trafficking and the exploitation of women and children, and when these phenomena are reported, the police authorities treat them as an issue of “illegal migrants.” (Amnesty International, 03/11/2004).

The Green Party of Ireland emphasizes the need to ensure that the common asylum policy does not undermine the protection of asylum seekers and refugees in certain member states. Clarifications are also needed regarding the protection of personal data and Europol. (John Gormley, T.D., 2003, Green Party Chairman)

The external dimension of human rights

While the overall assessment of the Constitution regarding human rights within the EU is rather positive, the findings concerning their incorporation into the Union’s external relations are disappointing. The Constitution limits the jurisdiction of the European Court outside the Union’s borders to the review of the legality of restrictive measures against individuals or legal entities. Clearly, these measures are correct, but one might wonder why restrictive measures against states are excluded from the Court’s jurisdiction (Mielle Bulterman, 2003, Leiden University, Newsletter, issue 4).

However, Europe today – even before the process of a truly developed institutional presence has begun – is a force that, on central issues of international life, promotes its own demands, its own ideas for the architecture of the international space, such as the priority of human rights, the peaceful resolution of conflicts, the rule of law, the value of human life expressed by the abolition of the death penalty… (Chr. Rozakis, 2001, EKEM Publication, p.64)

GENDER EQUALITY

Without a doubt, the provisions of the constitution strengthen the rights they refer to. The obligation imposed by the European Constitution to respect fundamental rights is particularly important for women, who have a clear interest in the recognition of these rights. The Committee on Women’s Rights of the European Parliament, together with non-governmental organizations, fought hard for the constitutional recognition of women’s rights throughout the work of both Assemblies – the Charter and the Constitution. Both assemblies, when assessed in terms of gender balance in their composition, would not be evaluated positively, nor indeed from the application of the gender mainstreaming strategy in shaping the agenda. This strategy, which was launched in 1995 and created great expectations, proved in practice to be “everyone’s responsibility and no one’s job” within the patriarchal socio-political framework of the Assembly (15 women out of 105 members).

Gender equality is included in Article 2, the first part of the Constitution, among the values of the Union, but as a principle, not as a value, as the European Parliament and all women’s organizations had persistently demanded. Unfortunately, this request was not accepted, despite the fact that provisions on gender equality are included in all national constitutions. The promotion of equality remains one of the Union’s objectives, as it was in the previous treaties.

Equality with limitations

In the Charter, the ambiguity of Article 23 raises serious doubts about the true purposes regarding gender equality. The first paragraph states: “Equality between men and women must be ensured in all areas, including employment, work, and pay.” The extension of equality to all areas certainly represents progress compared to the European acquis, which is limited to equality in work. However, the second phrase “including employment, work, and pay” redirects the application of equality to the well-known areas.

At best, the interpretation of Article 23 will apply gender equality not only in employment but also in family, politics, culture, sexuality, and all areas where discrimination against women occurs. This would represent real progress towards a broader concept of equality and a more serious approach to gender mainstreaming. However, the most likely outcome is that the principle of equality will only be applied to the areas explicitly mentioned in the Charter (employment, work, pay), rather than “all areas,” since they are not specifically referred to. The ambiguity and generality of the provision do not yet allow for predictions about the impact it will have on the progress of equality in the European context. In Article 141 of the EC Treaty, the provision on work and equal pay was more clearly worded and had an immediate effect, while Article 23 is more of a general statement of intention. As for the positive measures mentioned in Article 23, they are inferior to Articles 2 and 3.2 of the EC Treaty (Emanuela Lombardo, Paper for the ECPR Conference, Marbourg, 18-21/09/2003).

Women + 16 minorities

The second part of article 23 allows positive measures, stating that “the principle of equality should not prevent the maintenance or adoption of measures providing specific advantages for the underrepresented gender.” This wording uses so-called positive measures more as an exception to the principle of non-discrimination and less as a “necessary measure to achieve substantive gender equality” (Article 141 of the TFEU).

Article 21 of the Charter repeats provisions against discrimination, including gender, along with all other minorities (a total of 16). The request for a separate article in the Constitution for combating gender-based discrimination and promoting gender equality, with direct legal effects, which was supported by Parliament, experts, and women’s organizations, remained unanswered.

The provision for the reconciliation of professional and family life (Article 33.2) is more limited than the existing legislation and case law of the European Court of Justice. When read in conjunction with Article 34, it could be interpreted as an obstacle to paid parental leave. It is therefore clear that the Charter does not merely repeat existing EU provisions, but also attempts to limit them.

In the Third Part (functional) of the Treaty concerning the “policies and functioning of the Union,” the goal of integrating the principle of gender equality (gender mainstreaming) into all policies is included, as described in Article 2, with the known weaknesses previously mentioned. The principle of non-discrimination in Article 8 would be more effective (including a possible reference to the issue of violence against women) if the proposal by Vice-President of the Assembly Mr. Amato to replace unanimity with a qualified majority had been accepted. Regarding Article 108 of the third section, it is a faithful reproduction of Article 141 of the Treaty on the Functioning of the European Union (TFEU), which addresses equal pay and equal treatment in the workplace.

In conclusion, the Constitution did not particularly honor gender equality. From a legal perspective, however, the true test of the value of the provisions will come when the time comes for them to be interpreted by the European Court of Justice.

CONCLUSION

The European Constitution represents the greatest milestone in the process of European integration and the creation of a genuine European political space based on democracy, freedom, justice, and respect for human rights. The final text, despite its weaknesses, represents significant progress when compared to the Treaty of Nice. As Johannes Voggenhuber, a member of the Assembly, stated the day after the Constitution was adopted by the European Council (17.6.2004), the compromise reached is simultaneously a loud defeat and a quiet revolution.

The ratification of the Constitution, either through parliaments or referenda, constitutes the greatest political obligation and challenge for the member states in the coming months, until November 1, 2006, when it will enter into force. The European state is still under construction. Building a common future and a common identity requires, beyond the ratification of the Constitution, the continuation and improvement of the unifying process which, for more than half a century, has ensured for the peoples of Europe a period of peace, cooperation, development, prosperity, and respect for fundamental rights.

BIBLIOGRAPHY

1. Evans, Tony, 2001, University of Southampton, «The Politics of Human Rights-A Global Perspective» , Pluto Press,p.27

2. Etzioni, Amitai, 2001, “Political Unification-revisited”
3. Mikulas Dzurinda, February 2002, University of Berlin, The Debate on the European Constitution
4. Ioakeimidis, P., 28.02.2003, article, TA NEA, p. N06
5. Belammy, R., Paper for the CIDEL Workshop, “Constitution-making and Democratic Legitimacy in the EU”, London, 12-13-November 2004
6. Koblanck, Maria, June 2003, KU Leuven
7. Patten, C., 2000, Complementarity in the Human Rights Arena, “Human Rights Journal”, vol.21, p.311
8. Morondo, Dolores, 2003, “Europe and Human Rights” University of Urbino, p.92
9. Papadimitriou, Giorgos 2002, “The Constitutionality of the European Union,” Papazisis Publications, p. 63.
10. Human Rights and Democracy NGO Network, Nov. 2004
11. Perry, John, 01/03/2001, article, Federal Union,UK
12. Coughlan, Antony, 2003, TEAM-the European alliance of euro-critical movements, Working Paper No 10
13. ETUC, June 2004.
14. Bercusson, Brian, 2004, Kings College, Paper for the Trades Union Congress (TUC)
15. Trade Unions Congress: International web, 06/09/2004.
16. Brendan Barber, General Secretary of TUC, Press release, 08/07/2004
17. Amnesty International Assessment of EU Human Rights Policy, January 2004, Recommendations to the Irish Presidency
18. Amnesty International, 03/11/2004
19. Gormley, John, T.D., 2003, Green Party Chairman
20. Bulterman, Mielle, 2003, Leiden University, Newsletter, issue 4
21. Rozakis, Chr., 2001, EKEM Edition, p. 64.
22. Lombardo, Emanuela, Paper for the ECPR Conference, Marbourg, 18-21/09/2003).

23. Draft Treaty establishing the European Constitution, 18/06/2003.

Anna Karamanou

[email protected]

07.01.2005

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