How Human Rights Protection Offers a New Motive of European Integration
By Tom Pavone, University of Chicago
A recent Time magazine article titled “The End of Europe” paints a bleak picture for the future of the continent.
With the Greek financial crisis and both Italy and Spain flirting with a similar fate, the economic health of European states is as weak as it has ever been in the post-war era. Further, the presence of a European Monetary Union has arguably made things worse; countries like Italy that used to devalue their currency to fight recessions no longer have access to monetary policy options. And fears of a contagion effect throughout Europe have only been exacerbated by the fact that Greece, Italy and Spain use the same currency: the Euro.
Does this mean Europe is burning to the ground?
I’m not convinced. The Time piece reeks of its now infamous 1966 cover story titled “Is God Dead?” which has been mercilessly disproven by the resurgence of religion in recent decades. We all know that the media thrives on disaster and while the economic troubles of Europe are far from minor, my sense is that Europe will survive and hopefully learn from its mistakes.
But what I can speculate on is the future narrative for European integration, as the economic malaise that followed the 2008 financial crisis has massively delegitimized a key argument in favor of European integration: the promotion of economic liberalization.
This raison d’être for the European Union (EU) made its debut in the 1987 Single European Act (SEA), which sought to facilitate the completion of a single European market. 37 years after French Foreign Minister Robert Schuman helped spark the process of European integration by arguing that it would prevent future French-German conflict, the SEA shifted the focus from security to economic prosperity. And this economic-liberalizing focus was only strengthened by the eradication of the communist threat resulting from the collapse of the Soviet Union.
But just like the 1987 SEA signaled the end of security-driven justifications for the EU’s existence, the 2008 financial crisis may have put the nails on the coffin of those advocating for the EU as a driver of economic liberalization.
The fundamental question now becomes: what will be the new narrative of European integration? In my view, the answer is the expansion of human rights.
Over 20 years have passed since Louis Henkin, then-professor at Columbia University, first argued that we had entered “the age of rights,” a post Cold War era when the mainstay narrative of international relations would not be dominated by security concerns and great power struggles, but rather by the expansion of basic human rights across the globe. To many, the process has been tantalizingly slow, so much so that some have disregarded Henkin’s theory.
But even if Henkin was wrong then, it is worth resuscitating his argument now.
All too often, we focus on the human rights abuses that still plague EU member states. We see France passing national legislation banning headscarves in public schools in 2004, Switzerland banning the construction of minarets in a 2009 referendum, and Italy failing to approve, in 2008 and 2011, national legislation that would protect the LGBTQ community from hate crimes. This “friction” has been driven by the increasing diversification of Europe, namely rising immigration rates, cross-national movement and a newfound drive within minority groups to come out of the shadows. And it is these transformations that are laying the foundations for the expansion of human rights protection.
How is this possible? How can human rights abuses possibly signal a new era of human rights expansion?
To answer the question, we must first consider the structure of European law. EU law is characterized by two fundamental principles: supremacy and direct effect. The principle of supremacy means that when domestic law conflicts with EU law, EU law trumps domestic law. The principle of direct effect means that if a EU citizen believes a state is in violation of EU law, he/she can challenge the state in a domestic court (which is required to uphold EU law) or in the European Court of Justice (ECJ), which is charged with interpreting the various treaties of the EU.
Similarly, almost all European nations have signed the European Convention on Human Rights (ECHR)—the principal European human rights document—thus assuming the responsibility of transposing the provisions of the ECHR into their own domestic constitutions. If an individual believes a member state has violated his/her rights as specified within the ECHR, that individual can refer the issue to the European Court of Human Rights (ECtHR), the ECHR’s primary enforcer.
In short, the “friction” I previously described offers several opportunities for individual citizens to force EU institutions to clarify and expand upon the rights protected under European law and to force violating states to be in compliance.
And when a case is referred to these supranational courts, EU member states have reason to be nervous. Alec Stone Sweet of Yale University has found that the ECJ is much more likely to rule that a state violated EU law than to side with the state, particularly when the European Commission (the quasi-executive branch of the EU) publicly sides against the member state (in which case, the state loses over 90% of cases). What’s more, there is little the violating state can do about it: in most matters of any significance, member states can only overturn a ECJ ruling through unanimous vote. Unsurprisingly, this has never happened.
Similarly, when the ECtHR finds that a state is in violation of a human rights provision included in the ECHR, the ruling is final and binding. The state must comply with the court’s decision, or it risks being brought to court for noncompliance again..
What’s more, both the ECJ and the ECtHR have recently shown a distinct willingness to take up controversial human rights issues and, more often than not, to side against member states. This is made possible because both courts are trustee courts, that is to say that they not only get to interpret the law, but they also get to define which matters lie within their zone of discretion. In other words, both courts can determine how expansive their jurisdiction will be.
A recent example of how these supranational courts are expanding their zones of discretion into the human rights realm is the case of same-sex partnership recognition and the ECJ.
Traditionally, the ECJ has mostly dealt with issues of economic law within Europe, but in 2000, a new directive was passed by the European Council (the heads of all EU member states) protecting EU citizens from sexual orientation discrimination in employment. The ECJ interpreted the directive to mean that states like Italy, which offer no recognition to same-sex couples, must allow a gay citizen moving to Italy for work-related purposes to bring along his/her partner. In the past, the partner would have been denied access unless he/she too was also moving to get a job, because only heterosexual partners could claim economic interdependence.
By including same-sex couples within the scope of the EU’s free movement law, the ECJ essentially forced Italy to recognize same sex partnerships, at least when it comes to their ability to move to Italy together. This is a small step to be sure, but it is also an ingenious way to pressure the Italian state to recognize same-sex partnerships.
In short, so long as human right abuses are increasingly referred to supranational bodies like the ECJ and the ECtHR, chances are good that human rights protection throughout Europe will expand, along with the influence of supranational institutions. It is the very presence of a rising number of documented human rights grievances that offers the greatest hope for a new “age of rights.” And it is this focus on the rights of individuals, rather than the economic interest of corporations or the security of nation-states, which is most likely to be the future driver of European integration.
A transition? Yes. The end of Europe? Far from it.