Defendants in the dock at the Nuremberg Trials. US government/Still Picture Records LICON. Public domain
This is one of a series of articles we are publishing this summer from Eutopia Magazine – ideas for Europe. Eutopia sets out to create a place for European citizens to analyze the issues most relevant to their future by openly debating them with authoritative voices in each field. Here, a discussion of what has prevented progress on human rights in the EU?
The battle for the future of human rights will not only be fought within nation states, but also globally, where the relationship between the power of governments and the rights of individuals will be developed.
This is no small change. In the past two centuries western cultural and legal traditions have been founded on an unchallenged assumption – that of the validity of the nation state. The original building blocks of the first constitutions (universalism and natural law) had in fact been quickly abandoned, while during the nineteenth and twentieth centuries the quest to effectively safeguard the rights of those who had none became bound up with the consolidation of the modern states.
When a foreign power threatened a nation, that nation’s only defence was its right to self-determination. But there was no real way of asserting this right at supranational level except when a nation went to war, it was only national sovereignty that guaranteed rights.
Today the world is a different place: after the barbarity of the Holocaust and after Nuremburg it has become clear that the question of human rights cannot be left to the exclusive power of individual nations. Subsequently neo-nomadism, the fall of national borders, and globalisation have clarified that rights do not belong to states but to individuals and entities; they are attached to those who enjoy them and must be upheld in every corner of the globe. In a post-national society the world is the new dimension within which the democracy of rights can develop.
While clearly marked, the road ahead still appears very uneven. Just look at Europe, where the need to safeguard fundamental human rights beyond the state has flowed through its history like a subterranean river – from the end of the Second World War, and even before that, from the federalist Manifesto drafted in 1944 by Colorni, Rossi and Spinelli in the fascist internment camp on the island of Ventotene. Yet this need never succeeded in asserting itself and was consistently blocked by the dominant cultures, united in the belief that the rights of individuals must in any event be sacrificed to the economy, the markets, the unbridled development of sovereign states, and to established interests.
The European Court of Human Rights has been in operation since 1950, with the task of safeguarding the human rights inscribed in the Convention signed by the 47 states which make up the Council of Europe. But the limits of the protection afforded by the Court of Strasburg soon became apparent: states could be sentenced (Italy, for example, holds the record in relation to lack of procedural safeguards) but then no subsequent action was taken. The result – as Antonio Cassese put it – was that ‘ultimately, the more or less strict compliance with a sentence was left up to the good faith, diligence and “legal sensibility” of individual states.’
Throughout its long history the EU has presided over an expansion in the protection of human rights, especially in some of the rulings of the Court of Justice. In 1999 it embarked on its most ambitious project ever – the Charter of Fundamental Rights of the European Union. Developed from a Convention attended by some of the most enlightened jurists in Europe, the Charter was signed in 2000 in Nice by the EU member countries and, finally, recognised under the Lisbon Treaty as a primary source of EU law.
It contains an extensive list of fundamental rights; it recognises new rights (several of which are not even included in the national constitutions of the post-war era); it is founded on the essential values as they relate to human beings, no longer considered an abstract entity but rather, as we read in the Preamble, placed at the ‘heart’ of the entire Union’s action: ‘the Union … places the individual at the heart of its activities’. Equally explicit is the recognition of the values that substantiate the rights of individuals (freedom, equality, solidarity, citizenship, justice). Finally, and in particular, the Charter attributes to (‘inviolable’) human dignity a centrality that has never before been dealt with at such length (Chapter I of the Charter is entirely devoted to ‘Dignity’). Not even its strictly legal nature can be subject to any further doubt: the Treaty of Lisbon has eliminated every uncertainty on the issue by expressly acknowledging that the Charter has ‘the same legal value as the Treaties’ (Article 6.1 of the TUE). Besides, many of the rulings by European judges, at both community and national level, recall the Charter’s provisions.
So why, if we pause to consider the effectiveness of the safeguards and actual respect of the rights of individuals in Europe, can we not claim to have made much progress? After the approval of the Charter, the ‘Europe of rights’ has not gone from strength to strength. On the contrary, realistically we must admit that even in the short term the oscillation in recent rulings of the Court of Justice (I am referring to labour law in particular) leave little room for hope. Not only the judges but all the EU institutions are increasingly demonstrating their remoteness from the self-same rights they had recognised and inscribed in a text having constitutional value. Lately, too, the laws of the economy have appeared to trump every other kind of law with no regard to rights, social rights especially, by now abandoned and sacrificed on the altar of the economic crisis. How could this have happened, despite the Charter?
The basic reason is that to address the crucial issue of rights in a context that is no longer exclusively based on nation states, it is not enough to list them and subsequently consign them to a few announcements. It is necessary to consider what are the ‘material forces’ that support these rights. It is about seeing what instruments citizens actually have in order to make effective the rights recognised on paper.
It seems to me that up to now Europe has relied exclusively on the strength of its judges and on the instrument of jurisdiction. A short-run strategy, as it turns out. The fundamental error is to have thought that the judicial path for affirming rights in the European, if not global, context was not only necessary but also sufficient. The error lies in not having considered that, left to their own devices, the judges would ultimately be overcome by the material forces and zeitgeist that put the interests of the markets before the rights of individuals. There has accordingly been an overestimation of very value of the Charter of Rights, which cannot be thought of as being per se capable of magically transforming the Europe of traders and finance into a Europe of rights. Putting a Charter in the hands of judges is insufficient to achieve a constitutionalism of the material needs of real people. So what else is missing?
It strikes me that what is missing are the real historical entities that give material strength to rights. Or rather that today’s existing entities are not – some no longer, others not yet – capable of giving a stable political form to their demands by asserting the rights of all.
It is true that here and there in the world it is possible to glimpse collective entities which, in a number of circumstances, have led the struggle for rights. In some instances their presence was decisive, succeeding in producing both a political mobilisation and valuable institutional action for the safeguarding of individuals’ needs. These were collective practices that helped build an idea of citizenship which has real people and their dignity at its heart. There has been strong resistance on occasion against authoritarian and inhuman powers, against tyrants including the one whose face is hidden and who imposes his will through the market.
The examples are many and varied: from the NGOs that are concerned with safeguarding human rights, such as Amnesty International and Emergency, to the social movements that act to affirm specific political strategies or that mobilise in defence of the environment. More generally, there are the popular demonstrations that have identified in new technology, the internet especially, the means for organising political participation and action. With parties in crisis, and with all the traditional forms of social representation in difficulty, the internet has made a new form of organisation possible, one that is less structured, but not for this any less effective. The most important example is certainly the tide of protests that resulted in the Arab Spring, whose participants succeeded even in the biggest challenge of them all: to free themselves from tyrants and to completely overturn the established political orders.
All of these experiences – so profoundly innovative, sometimes revolutionary – do not, however, appear capable of defining a consolidated and stable strategy of rights that is in step with the times. Even when successful, they have often later been betrayed. Just think, in the first place, of the demise of the North African regimes which was not followed by a linear affirmation of rights, but instead by a highly controversial power struggle, with the clear risk of these countries’ returning to square one.
The experiences recalled earlier serve as examples, but they have not succeeded in being generalised, in becoming ‘established’. They all appear condemned to a fragile future. But why is this so?
Because ‘afterwards’ (after the condemnation, the movement, the rebellion, the victory) come the institutions, the established powers, the legal systems, which resume the governance of rights, the definition of their hierarchy, responsibility for the question of whether the prevalent legal system should be that based on the market or on the rights of individuals instead. These are all political decisions that have a strictly constitutional value, for the definition of which large movements or social entities are insufficient. Not even the judges are enough, or even just the Charters themselves. What is required is that rights take on a stable political form.
And this is why dialogue with power, and power politics, is essential, something that today still appears to elude us. Too often we content ourselves with merely being a ‘counterweight’. This is one way of guaranteeing our own individual and collective autonomy, of avoiding the potentially traumatic transition from protests to proposals, from the streets to the institutions, and from spontaneous forms of organisation to those that have always been an expression of a form of representation that is not just social but also explicitly political. Unfortunately, however, we cannot hide from the facts: no future strategy on rights can fail to address the dramatic dilemma of how to look at the demonical face of power without being paralysed or enslaved. At its core, modern constitutionalism had precisely this aspiration of establishing and limiting power in order to safeguard the rights of individuals.
In this era of globalisation to unravel the tangled plot of rights is a complex operation, made more difficult by the fragility of the entities that carry within them demands for democracy that run counter to the absolutism of the market god. But as Stefano Rodotà writes in his recent book, ‘The code of this enterprise has a name, and its name is politics. Rights are enfeebled when they become prey to uncontrolled powers, which take them over, void them of meaning and, even as they claim to respect them, in reality desire to relegate them to a melancholy past. Rights, therefore, are enfeebled because they are abandoned by politics. In this way politics loses its own soul, because in difficult times such as these, its salvation also lies in its adoption of a convincing politics of rights, of all the rights.’
Just what the potential political strategies for affirming the fundamental rights of individuals in the era of globalisation might be, I couldn’t say. Furthermore, it is certainly not up to the jurists to suggest them. The only thing that a jurist can assert is that there is need for a broad culture of rights, but also of organised forces for their protection. There is need of a strong rights narrative, but also of a specific constitutional policy, which today appears entirely absent.
This article was first published on Eutopia on July 14, 2014.