ARENA Working Papers
WP 02/36


Why a Charter of Fundamental

Human Rights in the EU?


Erik Oddvar Eriksen


 Why a Charter of Fundamental Human Rights in the EU?


It has been argued that human rights politics is detrimental to social integration. But human rights are not merely abstract principles which, when positivated, secure negative freedom. When they are constitutionalised and turned into fundamental rights they contain a guarantee for equal freedom to all citizens. A charter of fundamental rights is a means to enhance the legal certainty of the citizens, reduce arbitrariness and moral imperialism and to institutionalise the right to justification. However, as the principle of popular sovereignty points to a particular society, and human rights point to an ideal republic, only with a cosmopolitan order can the problem of human rights politics be resolved.



Legal developments over the last century have been remarkable and one of their main thrusts has been to protect human rights. [1] They are no longer only present in international declarations and proclamations. Increasingly they are entrenched in power wielding systems of action and in actual policies pursued. We witness a significant development of rights and law enforcement beyond the nation state. Aggressors can now be tried for crimes against humanity, and offensive wars are criminalised. Naked power is tamed by law. Almost nobody can any longer be treated as a stranger devoid of rights. (Brunkhorst 1998: 7, Luhmann 1983: 573) This development is spurred by the global system of rights entrenched in the UN Convention and the European Convention of Human Rights (ECHR). That a new order is underway is perhaps most clearly revealed in the initiative taken to incorporate a Charter of Fundamental Rights of the European Union into the new Treaty of the EU. At the December 2000 Summit in Nice the Charter was solemnly proclaimed. The eventual incorporation into the Treaties is postponed until 2004 � to be decided by the next IGC. All articles on the rights of EU citizens in the Treaty of the Union have now been collected in one document of 54 articles, inspired by the ECHR  (without replacing it), the Social Charters adopted by the Council of Europe and by the Community and the case-law of the the European Court of Justice. (ECJ). The Charter adds to the fundamental rights of Union citizens by expressing the principles of humanism and democracy.


Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice (Official Journal of the European Communities, 2000/C 364/01).


The position of human rights is strengthened internationally but it is a development that is not without difficulties. Human rights are universal as they appeal to humanity as such, and with their expansion within international law they have also gained an authority that limits the state�s self-legislation (cf. Apel 1998: 833). There is a tension between democracy and human rights, because so far the principle of popular sovereignty has only been made applicable to the rule of particular societies; it is at this level that democracy is institutionalized, as a national community of fate that governs itself autonomously. Democracy is in other words limited to the nation-state, which is primarily geared to self-maintenance. This brings the nation state into a potential conflict relationship with other states. Human rights, for their part, no longer follow from democratic states� self-legislation only, as is the case with the declarations that were the result of the French and the American revolutions. They also follow from international legislation under the direction of, among others, the UN, and enforced by special human rights courts. From a normative point of view this development is most welcome:


If there is any room for coercion in cosmopolitan law, it is in the enforcement of human rights precisely against states that use their sovereignty to abuse human rights for particular political, religious, or nationalist goals (Bohman and Lutz-Bachmann, 1997: 18).


The question arises whether a Charter of Fundamental Rights at the regional level, and in particular in the EU, can close the gap between abstract human rights and the need for democratic legitimation. Is it a means to resolve the tension between popular sovereignty and human rights?  I will address these questions and present two sets of arguments in favour of a constitutionalised bill of rights in the EU. The first one has to do with reducing arbitrary norm enforcement, which is the resilient problem of human rights in international politics. The second has to do with the normative validity of human rights. How can they be defended and are they really a necessary ingredient of democratic rule?

One may object that we do not need the Charter while such rights are already protected by the established conventions and constitutions in Europe. Even if the Charter merely represents consolidation of existing law I maintain that it

1) enhances transparency and the legal certainty of the citizens of Europe, and

2) is a contribution to global democracy as it provides a more consistent basis for EU�s external policy, and can thus be seen as a step towards a democratic world order.


I proceed by first briefly addressing the content of the Charter. In part II, I discuss the tension between human rights and democracy. Is the Charter a means to solve the legitimacy gap of human rights politics? In part III the discussion moves to the normative foundation of human rights and the alleged tension between law and morality involved in constitutionalising human rights. Law may be seen as complementing morality, but is there really a right to human rights? I end the paper by discussing the right to justification as the basic human right which is a strong argument for further democratisation of the EU in order to handle the problem of a human rights politics properly.


I. The Charter of Fundamental Rights of the European Union

A) A modern charter

The decision to frame a Charter of Fundamental Rights was taken at the Cologne European Council (June 3-4 1999).  In October 1999, at the Tampere European Council, it was decided to establish a 62-member Convention (headed by the former German President Roman Herzog) to draft a Charter of Fundamental Rights of the European Union. [2] This is the first time that the EP was represented in the same manner as the Member State governments and the national parliaments in a process of a constitutional nature.


The Charter contains provisions on civil, political, social and economic rights. Put together, these are intended to ensure the dignity of the person, to safeguard essential freedoms, to provide a European citizenship, to ensure equality, to foster solidarity, and to provide for justice. The number and range of rights that are listed are comprehensive. In addition to provisions which most charters and bills of rights hold and which pertain to such clauses as the right to life, security, and dignity, there are numerous articles that seek to respond directly to contemporary issues and challenges. For instance, there are clauses on protection of personal data (Article 8), freedom of research (Article 13), protection of cultural diversity (Article 22), protection of children (Article 24), right to collective bargaining (Article 28), and protection of the environment (Article 37). The Charter also contains a right to good administration (Article 41). It contains several articles on non-discrimination and equality before the law. Article 21, section 1, states that �Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.� Section 2 contains a clause banning discrimination on grounds of nationality.


In the preamble it is also stressed that �(...)[I]t is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments�� Its forward looking quality is perhaps most strikingly underscored in Article 3, which prohibits the cloning of human beings. The Charter, then, at the outset seems to be sensitive to the problems of modern globalized societies.


B) Legitimate governance

The founding treaties of the European Community contained no reference to fundamental rights. However, as integration deepened and as the Community came to have more far-reaching effects on the daily lives of citizens the need for explicit mention of fundamental was recognized. The European Court of Justice (ECJ) developed this idea [3] as the Community is not bound by the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in the same way as the subscribing Member States. EU is not itself a signatory to the Convention. It has been argued by many over the years that the power of the legislative and administrative bodies of the Community needs to be constrained by a set of fundamental rights, in the same way as constitutions and the ECHR constrain the authorities of the Member States. The problem was attended by the IGC leading to the Maastricht Treaty (TEU) and in what is now Article 6(2) of the Amsterdam Treay recognition of the concept of fundamental rights is enshrined. By this clause the EU is obliged to respect the rights guaranteed by the ECHR and deriving from the constitutional traditions of the Member States. However, this is rather weak and imprecise:


The rights regime of the European Union is inconsistent in terms of content as well as variable in terms of implementation and levels of enforcement between Member States (Duff, 2000: 4-5).


The principle of legal certainty is only secured in a limited sense at the Community level.  The citizen can not be sure what rights she really is entitled to. Not all the Member States, for example, have ratified all the Convention�s subsequent protocols and the ECJ has no clear and incontestable foundation on which to base its rulings. Another source of the initiative of making a charter of fundamental rights is the argument that the EU which is � �a staunch defender or human rights externally� �  �lacks a fully-fledged human rights policy.� [4] When basic institutions are lacking in the EU with regard to human rights, it is difficult to lead by example.  The ensuing document is intended to do something about this deficiency. The Charter substantiates the rights mentioned in Article 6(2) of the Treaty on European Union (TEU) by spelling out the specific obligations of the institutions.


The proposed Charter can be read as one of, if not the most, explicit statement on the EU�s commitment to direct legitimacy that has ever been produced in the EU. That is that the institutions and rights provided to the citizens by the EU should in themselves provide the necessary basis for legitimate governance. It speaks to the claim that the EU is a full-blown polity. However, the Charter is not without ambiguities and constraints. It only applies to the actions of the EU institutions and the Member States� authorities when implementing EU law, and it is not designed to replace other forms of fundamental rights protection. It is not binding, even it is written as if �it were a binding legal text� following a proposal made by member Cisneros and endorsed by president Herzog. [5] I am not going to address these problems here nor the problems of the status of rights, which are fundamental and which are merely ordinary rights, or the lack of conceptual stringency. Rather I focus on the need for a charter or a constitutionalised bill of rights which appears to be the most likely long term outcome of the chartering process. (Lennaerts and De Smitjer 2001: 273-300; Men�ndez 2001)


                                                            * * * * *



What is at stake is the sovereignty of the modern state as laid down in the Westphalian order.


[Yet] international law (jus gentium), since its origins at the beginning of modern times, has been characterised by a dualism of its normative focus: on the one hand, the concern for human rights, which was first grounded theologically and metaphysically on natural right; and on the other hand, especially since the end of the Thirty Years� War in 1648; the principle of inviolability of the sovereignty of the particular states, which was primarily oriented towards the preservation of peace. (Apel 2001: 32).


Prohibition of violence against sovereign states was prioritized over the protection of human rights, thus this order safeguarded the rulers� external sovereignty. The international order is founded on the principles of co-existence and non-interference among sovereign states. [6] The latter principle, however, can not prohibit genocide or other crimes against humanity and can not easily be sustained from a moral point of view.


 II. Human rights and popular sovereignty.

A) The tension between human rights and popular sovereignty.


The principle of state sovereignty which international law after the Treaty of Westphalia 1648 warranted, is a principle that has protected the most odious regimes � and it should be recalled that it was only when Hitler-Germany attacked Poland that World War II broke out, not when the persecution of Jews started. This also indicates the limitations of nationally founded and confined democracy. [7] While human rights are universal and appeal to humanity as such, democracy refers to a particular community of consociates who come together to make binding collective decisions. The validity of the laws is derived from the decision-making processes of a sovereign community. The propensity to adopt rights, then, depends on the quality of the political process in a particular community.     


When peoples� basic rights are violated, and especially when murder and ethnic cleansing (etnocide) are taking place something has to be done, our moral consciousness tells us. The UN and the accompanying growth in international law ever since its inception represent the transformation of this morality into political and legal measures. The purpose of these institutions was first to constrain the will of nation states in their external relations to other states. The politics of human rights by means of systematic legalisation of international relations implies the domestication of the existing state of nature between countries. In principle there are now institutions above the nation state that also constrain the will of the state, i.e., the power exerted over its citizens. [8] These are hindered by the limitations of the international law regime, as it is based on the principle of unanimity and as it lacks executive power. However, this is not the only problem with a human rights regime.


The problem with human rights as the sole basis for international politics, is due to their non-institutionalized form. Human rights exhibit a categorical structure - they have a strong moral content: �Human dignity shall be respected at all costs!� Borders of states or collectives do not make the same strong claim � �they do not feel pain�. In case of violations of basic human rights, our human reason is roused to indignation and urge for action, and when conceived abstractly they do not pay attention to the context � e.g. to the specific situation and ethical-cultural values - and may violate other equally valid norms and important concerns. As human rights do not respect borders or collectives, as they appeal to humanity as such, they may threaten local communities, deep-rooted loyalties and value-based relationships. When you know what is RIGHT, you are obliged to act whatever the consequences. This is among the problems of human rights politics. It stems from the cosmopolitan universalist idea of doing good regardless of borders which set the European nation states on missions defending and proclaiming human rights across the globe, a mission that the USA sought to take over in the late twentieth century. (Eder and Giesen 2001: 265)


Yet this cosmopolitan mission faces significant difficulties. The general problem comes down to the following: in concrete situations there will be collisions of human rights as more than one justified norm may be called upon. To choose the correct norm requires interpretation of situations and the balancing and weightening of rights. (cf. G�nther 1993, Alexy 1996) Another problem with the politics of human rights is its arbitrariness at this stage of institutionalisation. They are enforced at random. Some states are being punished for their violations of human rights while others are not. There are sanctions against Iran and Iraq, but not against Israel or China. Some violate international law with impunity. The politics of human rights is criticised for being based on the will-power of the US and its allies, not on universal principles applied equally to all. Human rights talk may very well only be window-dressing, covering up for the self-interested motives of big states. Recall the prominence of the rhetoric of �the free world� by the US in the Vietnam War; and of human rights in the Gulf war, where it was accused of intervening because of its interest in oil resources. All too often ideals are a sham � they are open to manipulation and interest-politics and renewed imperialism. Human rights politics is often power politics in disguise. Or as an opponent to all supranational law puts it:


When a state fights its political enemy in the name of humanity, it is not war for the sake of humanity, but a war wherein a particular state seeks to usurp a universal concept against its military opponent (Schmitt, 1996 54).


The solution to the twin problem of the politics of human rights � the problem of norm collissions and of arbitrariness � is positivisation or constitutionalisation, which confers upon everybody the same obligations and connects enactment to democratic procedures. [9] Increasingly, this is actually taking place as human rights are incorporated both in international law and in the constitutions of the nation states. The UN was primarily founded to prevent the recurrence of war. Democracy was not a condition for membership. Increasingly the UN has taken up human rights and democratic questions and has supported women�s and children�s rights, rights concerning the environment, development, participation etc. in many ways. [10] The UN helps facilitate transitions to constitutional democracy at the state level. As a consequence human rights are no longer merely moral categories but are positivated as legal rights and made binding through the sanctioning power of the administrative apparatus of the states. This has changed the very concept of sovereignty. Today for (at least some) states to be recognized as sovereign they have to respect basic civil and political rights. In principle, then, only a democratic state is a sovereign state and in such a state the majority can not (openly) suppress minorities.


Human rights are important because they directly point to a basic constitutional principle of modern states, whilst also constituting a critical reference point for their validation. The democratic Recthstaat is founded on the rights of the individual, her autonomy and dignity. It claims to derive legitimacy from the protection of the individual � her freedom and welfare. This is also seen in all liberation movements and claims for secession: they are first recognised by international society when they can show that basic rights are violated by the power-holders. There has been a remarkable shift in the discourse of how and when to intervene in the 1990�s. [11]


Interventions once aroused the condemnation of international moralists. Now failures to intervene or to intervene adequately in places such as Rwanda or Sierra Leone do (Doyle, 2001: 212).


The parameters of power politics thus have changed. However, the problem of arbitrariness in the enforcement of norms in the international order is not resolved. The urgent task is to domesticate the existing state of nature between countries by means of human rights, i.e., the transformation of international law into a law of global citizens. [12] Thus there is a need for political institutions that are capable of non-arbitrary and consistent norm enforcement, and in the advent of a democratizised and empowered UN, regional institutions like the EU are of the utmost significance. Does the Charter of Fundamental Rights contribute to an cosmopolitan order?


B) Chartering the EU

It should be repeated in order to avoid misunderstandings that the Charter is not as yet legally binding, but �In practice, (�) the legal effect of the solemn proclamation of the Charter of Fundamental Rights of the European Union will tend to be similar to that of its insertion into the Treaties on which the Union is founded.� (Lennaerts and De Smitjer 2001: 298-99). It is possible to analyze it on the hypothesis that it will become binding (Liisberg 2001: 6). Moreover, since it codifies existing positive law in one sense it may be seen as already binding. This provides the background for the ensuing assessment of the Charter. It may be a means to resolve the tension between sovereignty and human rights for the following reasons.


First, the Charter marks the EU as a polity with extended domains of competencies. It is not merely an instrument for solving the problems of the Member States or a common market. In many regards it is a political entity performing many of the functions of the nation state. Consequently, the rights of the citizens need safeguards. The  Commission, the EP and the ECJ form a new supranational power wielding regime with far reaching consequences for the ordinary man and woman in Europe. The Charter denotes the EU as an entity built upon the individual, her freedom and well-being, with rights that should not be overrun by collective welfare claims or national concerns. The citizens of Europe have now, in principle, achieved rights over and above their native states. The Charter �� is a legally enforceable text which underlines the importance of the rule of law in the EU and it is the ultimate proof of the focal role that EU citizens have come to play in the European integration process� (Lennaerts and De Smitjer 2001: 300).


Second, the Charter enhances the legal certainty of the individual citizens of Europe as everybody can claim protection for the same interests and concerns. A bill of rights secures consistent rights enforcement in the EU area. This is required as different conventions, treaties and constitutions are at work and court rulings in these cases often reflect national traditions and customs. A bill of rights even one that is not more than the codification of existing law decreases the room for discretion of the ECJ and national courts when dealing with EC law of fundamental rights. (Men�ndez, 2001: 22f) The need for legal certainty has also been accentuated by the recent development towards an actual common security policy in the EU � Justice and Home Affairs. It is in policy fields such as migration law, border control, police cooperation etc. that the rights of the citizens most often are threatened. [13] One may also add that the process of enlargement may gain from raising the standards with regard to protection of human rights as they temper the abiding temptation to stress merely compliance with the economic and administrative accession criteria on the side of the applicant states. Regarding this it should be remembered that the strengthening of human rights in the Communities at an earlier stage went hand in hand with the plans for enlargement towards Southern Europe � Spain and Portugal. [14] Indeed at every major turning point in the integration process � deepening or widening the Communities � there has been increased attention to rights.


Third, the Charter is a public document and it has been shaped, interpreted and enacted by political actors. The process is close to a constitutional one. This new regime moves the system of human rights beyond the present one which is dominated by the courts. The Charter is made by the representatives of the citizens of the Member States. It has been openly deliberated by representatives of national governments and national parliaments, the Commission and the EP and has also received inputs from NGOs. [15] To some extent it has also been subjected to public debate. [16] The Charter is politically decided and so implies a democratisation of human rights politics. This is important for legitimacy reasons, i.e., in order to curb the power of judge made law in the EU. Legitimacy is also the reason for the European Council�s decision in Cologne: �Protection of fundamental rights is a founding principle of the Union and an indispensable prerequisite for her legitimacy � There appears to be a need � to establish a Charter of fundamental rights in order to make their overriding importance and relevance more visible to the Union�s citizens�. [17] In general a charter containing a bill of rights increases transparency and comprehensibility for ordinary citizens and makes existing law liable to public scrutiny. It enhances the possibility of public reflection and democratic deliberation which are needed to avoid technocracy and paternalism in formulating and enforcing rights. Participation is also needed for other reasons. In situations where rights collide a correct interpretation of the situation is needed to choose the appropriate norm. This requires democratic participation because only hearing of all affected parties can provide and adequately informed basis for resolving hard questions. Human rights require democratic legitimation and public deliberation to be correctly implemented. (Brunkhorst 1999, Michelmann 1999).


Fourth, the Charter process represents a very important development in the constitutionalisation of the EU: �Europe could finish its federalizing process under the flag of human rights.� (Von Bogdandy 2000: 1337). From a cosmopolitan point of view such rights are important as they contribute to establish democratically controlled institutions at a regional level to cope with global problems. By this �international law� is pushed beyond the limitations of the Charter of the United Nations which on its behalf prohibits violence, and thus aggression against other states, but forbids the intervention in the internal affairs of a state (Article 2.7). The EU has clearly progressed beyond this initial stage of a purely voluntary association. It is an entity with strong supranational elements equipped with executive power. This is evidenced in the supranational character of the legal structure, which is supported and enhanced in particular by the European Court of Justice. In its rulings, it has long asserted the principles of supremacy and direct effect. National law gives way to Community law, and there is a need for safeguarding the rights of the citizens. Through its institutions, it forms a supranational regime with extended competencies and certain democratic qualities. Alongside these legal developments further democratisation is greatly needed to redeem the basic idea of human rights of free and self-governing citizens. A constitutionalised bill of rights provides the EU with the legal competence required to carry on being a firm promoter of human rights externally. It is difficult to be a champion of cosmopolitan law and urge other to institutionalise human rights when one is not prepared to do so oneself.


But what is the precise connection between rights and popular rule. Why is a bill of rights really needed for democracy to prevail?


III. The normative foundation of human rights

A) Why not a charter?

In controversies over human rights one frequently encounters not only the accusation that this is a means for western societies to maintain hegemony over the rest of the world, but also that human rights abstractly framed threaten value-based communities and primordial bonds of belonging. [18] Human rights are �foreign� and when not mediated by the facts and values of the context in which they are to be implemented they may have counter-productive effects. They in fact endanger the very values and subjects they are intended to protect. [19] Likewise, some communitarians and civic-republicans claim that legal rights entrenched in constitutions are not needed and/or that they have negative effects on social integration. The latter pertains to the fact that they constrain politics as they relieve the political agenda of certain questions and they enhance the propensity to act egoistically. Rights constrain democracy and undermine the ability to act collectively. They entitle the citizens to act against each other and against the polity as they no longer are bound to ground or justify their actions morally. They can act upon rights solely in order to safeguard their self-interests. (Sandel 1982) And, �the more rights the judges award the people as individuals, the less free the people are as a decision-making body.� (Walzer 1981: 391). I will first address the latter objection, i.e. the relationship between law and morality, and then the former by asking if there really is a right to human rights.


Jeremy Waldron claims that there is an inherent contradiction involved in the process of constitutionalisation of rights as they build upon the concept of individual autonomy - on the concept of a morally responsible person - while at the same time constitutionalize distrust of them as responsible political actors. (Waldron 1993). Rights relieve the actors of the virtues and responsibility that rights, so to speak, presuppose. �However, there is no inconsistency in saying that human beings are able to think and to act morally on the one hand, and that they quite often commit appalling acts on the other.� (Fabre 2000: 91) Even political anarchists need the law to co-ordinate their common affairs. The articulation of virtues, institutions of civil society and public deliberation are important to bring about the civility, trust and solidarity required for democratic participation, but modern law based on individual rights entitlements in the form of legal statutes is equally important. Law is a medium for stabilising behavioural expectations. It constrains defection and free riding, because it connects non-compliance with sanctions. (Habermas 1996a: 129f) It is a way to solve the problem of collective action. There may be reasons to oppose even a rational agreement, and nobody is obliged to comply with collective norms unless all others also comply. Pure virtues and unsanctioned social norms are too weak to govern behaviour in larger collectivities, and are too weak instruments to harness individual behaviour. They need to be supplemented with legal statutes that connect breaches and defection with sanctions. Agreements have to be institutionalised and terminated in formal contracts. This is why the role of the law is such a conspicuous feature of governance in modern societies. It makes agreements into rights, laws or contracts, which make them binding on all the members in the same way. Law is not merely a symbolic system, it is also an action system that confers upon all the same obligations (ibid: 107). The constitutional state sanctions norm violations and bans the use of violence, and therefore encourages parties to act morally and in a communicatively rational manner. (Apel 1998: 755) Law complements morality and enhances the moral role of legal systems. Instead of threatening morality and virtuous action, rights and obligatory enforcement of action norms make such behavior possible. This applies to legal rights in general.


Human rights, for their part,  are moral claims, and as such can be justified with regard to the duties that bind the free will of autonomous persons. In other words with regard to the autonomy, or the integrity and dignity, of the individual. Moral rights protect the interests or autonomy of the self-legislating individual and can be seen as having intrinsic validity. However, human rights are not merely moral entities, they are also entrenched in positive legal norms as judicial rights. From this angle one achieves another perspective on the relationship between democracy and human rights.


B) Private and Public Autonomy

The most important difference between basic rights and human rights is that the latter concerns humans as such, while the former - basic rights - are given to individuals in so far as they are citizens, i.e., members of a state. (H�ffe1996: 51) Human rights have a moral content that is not absolvable in positive law, and thus have prepositive validity: they exist, so to speak, prior to political communities and they constitute the reference point for criticising positive rights.

Even if human rights can be realized only within the framework of the legal order of a nation state, they are justified in this sphere of validity as rights for all persons and not merely for citizens. (Habermas1997a:138).

Human rights can thus be morally justified, but they are also embedded in positive, legal norms as judicially enforceable rights. (Habermas1996a: 40). When enacted or positivized they are turned into fundamental or basic rights. They become legally binding on all right-holders and confer upon all the legal duty to respect the law and thus to mutually grant all consociates the same rights. Kant made use of the term �the system of rights� to characterize the modern form of liberal, civil law, namely that it contains a guarantee of equal right to freedom to all citizens. The state is a union of people under laws, and the constitutions and laws adhere to the principle of political right:


A constitution allowing the greatest possible human freedom in accordance with laws which ensure that the freedom of each can coexist with the freedom of all the others. (Kant 1991: 23).


This guarantee legitimates positive law in general by the principle that what is not prohibited is allowed. This is the principle that makes it possible to combine each individual�s free choice with anybody else�s free choice. Individual rights guarantee the actors� liberty to do as they please � negative freedom. They allow selfishness and irrationality because they exempt the individuals from the burden of justification. The citizens are given rights that protect their private autonomy, that is, the right to pursue their goals as long as they are within the confines of the law. This is because freedom in modern societies not only has a moral character, i.e., securing autonomy, but also a juridical one, i.e., securing a legal domain of non-interference.


Kant�s point is that citizens who recognise each other as free and equal, must give each other the same and the greatest possible degree of freedom if they want to regulate their co-existence by means of the law. In Habermas� opinion this follows when the discourse principle is applied to the form of the law. [20] Only laws that can be accepted by everyone in an open debate can be considered legitimate, and only laws that guarantee as much as possible and equal freedom to everyone will be able to pass such a test. The citizens can only regulate their co-existence legitimately by means of the law in so far as they are also given the opportunity of participating in the legislative process. Thus we see that the rights can not only guarantee citizens� private autonomy, but they must also demand and presuppose their public autonomy.


This has the additional implication that the citizens are free to take their own particular stand towards the law. They must be free not only to choose whether they wish to comply with the law or not, but also whether they want to take a stand at all. They can be forced neither to approve nor to participate if the law is to claim legitimacy (Habermas, 1996a: 121). Everyone must have the opportunity to choose exit or to not have an opinion at all. The discourse principle warrants this at it gives the citizens the right to submit only to the laws that they approve of in a rational discourse. With this the citizens are not only free to say yes or no to a legal norm, they are also free to decide if they want to say yes or no at all. It is the law, that is, the existence of judicial rights, that realizes freedom. Negative freedom is made possible by the law. The liberal legal principle stating that what is not prohibited is allowed, guarantees the citizens of a democratic constitutional state individual freedom to act (without allowing them to opt out of law).


The form of the law provides relief from the burden of justification. But the democratic constitutional state by implication depends on a population and citizens that to no great extent make use of their right to non-justification and non-participation, for example by not taking part in elections. It requires a certain dosage of civic virtue and a population that values freedom and emotionally and �patriotically� embraces constitutional rights. The liberal constitutional state is not self-sufficient, and on this the discourse theorists and the communitarians agree.


What is more, rights should not be thought of as possessions or as innate protections of private interests, rather as what compatriots grant each other mutually when they are to govern their co-existence by law. �Rights are relationships, not things; they are institutionally defined rules specifying what people can do in relation to one another.� (Young 1990: 25). Thus, rights are inter-subjective entities which entail recognition of reciprocity and depend on successful socialization [S1]  and individuation processes to work adequately. Persons capable of respecting others� rights and of using their own rights in a responsible way are required for rights to function as protectors of interests.


Individual rights are both a result of and prerequisite to democratic legislation. Fundamental rights are not only an instrument for the collective will-formation, but have an absolute status. They have a value in themselves. They precede and limit collective will-formation, at the same time as they must be justifiable in an open discussion. Individual rights must therefore not be regarded as limitations on the actors� private autonomy or on the autonomy of the legislator, as is frequently the case in the way liberals see them (cf. Berlin1969). There is a dialectic here: a qualified common will can only be formed when the individuals are free, but it is only by means of the collectivity, i.e., the community and its resources, that the conditions for free opinion-formation can be established. In Habermas terms democracy and the constitutional state are equally basic and co-original. Individual freedom, which human rights guarantee, is both a condition for and a result of the legislative process. (G�nther1994: 471, Maus1996: 838). When the laws are made by the legislative authority in which everyone participate they cannot be unjust, because in such an endeavour people are treated as an end in themselves; they cannot do injustice to themselves, according to Kant.


However, in practical terms there is a tension between human rights and democracy since the latter only exists at the level of the nation-state, i.e., in particular states with very different political cultures, while human rights are ensured by non-democratic bodies such as courts and tribunals or, what is more often the case, enforced by the US and its allies. But how can human rights be defended in their own right, and not only as an �instrument� for democracy? An answer is required as our moral intuition tells us human rights need protection regardless of their contribution to democracy. Here I follow a proposal made by Rainer Forst. [21]


C) Is there a right to human rights?

One may ask if the conceptual strategy discussed above fully grasps the normative dimension of human rights. Habermas� conception of �private autonomy� is, with the danger of oversimplification, framed on the right not to communicate. Legal rights relieve the actors of the obligation to provide justifications - there is a right to be left alone (Cohen, 1994). As we have seen Habermas conceive of the core content as being moral, but there is no justification of the intrinsic value of human rights. Why do we need human rights and to what extent can we claim to be protected by them? A wider justification is needed, because positive laws can be unfair and because meta-legal perspectives are called upon to change and rectify legal orders and make new laws. It is also required because we need to know more specifically why human rights are necessary. A normative foundation is required in order to refute the accusation that human rights are particularistic and �Western� values. There is need for a culturally neutral but at the same time culturally sensitive defence of human rights.


Demands for human rights are moral demands as they are put forward to secure vital interests. They are always concretely justified with regard to someone�s frustrated need or unsatisfied interest and they are articulated when people are maltreated or humiliated. Human rights do not merely exist or not exist, they are not given by God(s) and they are not merely discovered. Rather they are created and recognised by people in certain situations and are enacted by political and judicial decision making bodies. (K�hler 1999) They arise in difficult and severe situations and are responses to normatively demanding hardships. [22] Experiences of injustice which are common to all human beings give rise to demands for change and rectification - reiteration - and beneath claims to particular undertakings, to social and political remedial actions, there is a need for understanding and explanation. Why is this happening to me, and why do I have to obey rules and norms detrimental to my own interest? Actors may have no abstract or philosophical idea of what it means to be a �human being,� but in protesting they believe that there is at least one fundamental human-moral demand which no culture or society may reject: the unconditional claim to be respected as someone who deserves to be given justifying reasons for her actions, rules, or structures to which he or she is subject (Forst1999b: 40).


At the heart of human rights demands is the need of every human being for meaning and reasons - as a universal feature of human kind. [23] Religions may be seen as a response to this need as they are representations of meaning: they explain man�s place in the world and provide justification of evil or injustice. This need is also, so to speak, built into the very operational structure of human language. In every society, in every social relationship, the demand for justification and explanation is present; and every human being expresses this demand from the earliest years.


In modern societies the demand for meaning also takes the secular form of reason giving in the first person singular and translates into the justification of political authority. According to this way of reasoning, every social order must be prepared to give reasons for their existence if they are to be recognised by their members. It is from this basis, recognising the right to justification, that other rights may be justified. Thus the basic principle of democracy: Only norms and statutes that are justified to those affected and that are accepted by all in a free debate can claim to be truly legitimate. [24]


D) Towards post-national citizenship?

From this normative point of view there are also reasons for institutions beyond a particular state in which individuals have obtained membership and which protect the basic rights of the citizen. A state can fail to respect a �correct� understanding of human rights and can also fail to respect individuals with no membership rights, and, indeed, other states� legitimate interests. [25] For the rights of the world citizen � kosmou polit�s - to be respected human rights need to be institutionalized in bodies above the nation states that actually bind individual governments and international actors. Such bodies must have the use of resources which make threats credible. This is needed for consistent and impartial norm-enforcement.


However, the problem of democratic legitimation lingers as long as those affected by the norms do not have a say in the legislative process. Technocracy and paternalistic practices of norm-enforcement represent barriers to an adequate human rights politics and contradict the core principle of human rights, i.e., that the individual has a right to justification � and the principle of democracy understood as government by the people.


Constitutionalizing the Charter of fundamental rights in the EU is an important step in the right direction, not least because of the democratic aspect of the Union. The system of representation and accountability in the EU gives the citizens at least a minimal input in the process of framing and concretising the rights to be enacted. What is required then are rights which are specified with regard to the explicit duties of power-wielding bodies - i.e., bodies with executive power. The Charter observes this right not only in securing a right to vote and to political accountability but also in stating, as mentioned, the right to good administration which includes, �the obligation of the administration to give reasons for its decisions.� (Article 41, section 2). [26] At the same time, the shortcomings of the Charter direct us to the deficiencies of the EU as a political order.


The EU is in need of a more fundamental democratic reform. It seems that this have to include abolishing the pillar structure (because pillars II and III are intergovernmental and essentially outside the realm of Community law), redistributing and delimiting the competences of the decision-making bodies, empowering the EP, making the Council into a second chamber, the Commission into a government headed by an (EP) elected president, etc. Hence there is need for Treaty amendments and constitutional reform for the Charter to play an elevating part in enhancing the proper role of the citizen, i.e., as a Staatsb�rger. What is required then is very much on the agenda of the present preparations  for the next Treaty amending conference in 2004. A Convention has been established to propose constitutional reforms of the Union. Inclusion of the Charter in the EU Traties is one of the tasks.


Yet the principle of popular sovereignty points to a particular society that autonomously govern itself, while human rights point to an ideal republic, and only with a cosmopolitan order � democracy at a supranational world level � can this opposition finally find its solution. The UN needs to be democratised and made into a polity with sanction-based means of law-enforcement. Law should be made equally binding on each of the Member States, otherwise human rights politics can easily degenerate into empty universalist rhetoric or a new imperialism. States may continue to violate human rights with impunity. Regarding democratisation, one option is to supplement the existing order with territorial representation � one person, one vote - either as a second assembly or by reforming the General Assembly. [27] However, the institutionalisation of rights and decision-making bodies on lower levels is required by the cosmopolitan model. Intermediate institutions in a global democratic world order � regional bodies capable of collective action between the UN and the nation state � are needed to be able to establish democratically controlled institutions to cope with global problems. That is why regional unions such as the EU are normatively attractive.


IV. Beyond the nation state

There is a tension between international law�s recognition of sovereign states and the regulative idea of equal rights and freedom for all which is reflected in various practical oppositions between democracy and law, and between domestic and foreign policy. The growth of international law limits the principle of popular sovereignty (Apel, 1998: 834). However, legal orders are orders of peace; and one might say that the principle of popular sovereignty is being undermined by international human rights politics as well. The principle of popular sovereignty, according to the cosmopolitan agenda, is in the process of being transformed into a law for the citizens of the world. In this process the Charter of Fundamental Human Rights is an important step in institutionalisation of a framework of a cosmopolitan order where violations of human rights can be persecuted as criminal offences according to legal procedures.


The Charter promises to make the EU�s external policy on human rights consistent with internal practice. It provides the legal basis for such undertakings and sets the same standards for internal affairs as for external affairs. For a long time the EU has urged other countries to comply with the standards of human rights and to subject international offences to the workings of courts and international law. However, to be a strong and authentic actor on human rights, which are claimed to be universally valid - and thus to be a champion of global cosmopolitanism - first and foremost requires that one is prepared to use the same standards on oneself. In enacting and standing by the Charter the EU no longer can be accused of applying double standards, and so promises to enhance both its internal legitimacy and the effectives of its contribution to a global cosmopolitan project.


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[1] Paper first resented at the workshop on �The Charter of Rights as a Constitution-Making Vehicle�, at Arena, Oslo, 8-9 June 2001. Thanks to the participants for comments and especially to John Erik Fossum, Andreas F�llesdal, Agustin Men�ndez, Anders Molander.

2 The Convention consisted of (a) representatives of the Head of State or Government of the Member States, (b) one representative of the President of the European Commission, (c) sixteen members of the EP, and (d) thirty members of the Member State Parliaments (two from each of the Member States). It was led by a Presidium of five.

[3] The leading Case is Internationale, 11/70, [1970] ECR 1125

[4] And further "� the Union can only achieve the leadership role to which it aspires through the example it sets" (Alston and Weiler 1999: 4-5).

[5] See CHARTE 4105/00. See aslo Eckhout, 2000: 98.

[6] [6] However, see Walzer 1977: 89: �(...) [O]f course not every independent state is free, but the recognition of sovereignty is the only way we have of establishing an arena within which freedom can be fought for and (sometimes) won. It is this arena and the activities that go on within it that we want to protect, and we protect them, much as we protect individual integrity, by marking out boundaries that cannot be crossed, rights that cannot be violated. As with individuals, so with sovereign states: there are things that we cannot do to them, even for their own ostensible good�.

[7] See Morgenthau 1993: 12: "The individual may say for himself: 'Fiat justitia, pererat mundus' (Let justice be done, even if the world perish), but the state has no right to say so in the name of those who are in its care". Cf. Kant, 1996: 345. However, to secure the global state of peace can itself be seen to be "a human right of prime importance", according to Apel, 2001: 33. For Hobbes the right to life was the prime natural right, but as civil wars make clear the case of freedom of religion contradicts this: freedom of belief is valued over ones own life. See also H�ffe, 1999: 62.

[8] The last years witnessed a significant development of rights and law enforcement beyond the nation state; e.g., the Gulf war 1991 and in Kosovo 2000. The rights are institutionalised in international courts, in tribunals and increasingly also in politico-judicial bodies over and above the nation state that control resources for enforcing norm compliance. Examples are the International penal tribunal for Rwanda and the former Yugoslavia, the forthcoming International Penal Court, the UN and the EU. In addition, nation states through-out Europe are in the process of incorporating the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) into their domestic legal systems.

[9] Unless the danger prevails that agents and "leading beneficiaries of globalisation will construct notions of world order and transnational citizenship which allow them to pursue their interests without much accountability to wider constituencies". Falk 1994. See also Linklater, 1998.

[10] The UN has been innovative and rather controversial. See Falk 1998.

[11] On the reasons for and against intervention see e.g., Beitz 1979: 69 ff.; Beitz 1985; Mill 1974; Walzer 1977 and 1985; Brunkhorst 1998.

[12]   On this see e.g. Apel, 1997; Habermas 1996b; Habermas 1999a: 46-59; Habermas 1999b: 263-272, cf. Brunkhorst, K�hler and Lutz-Bachmann, 1999.

[13] The EU-Committee of the House of Lords in England urged for a legal binding charter based on the ECJ as the legal authority, because: "Within the framework established by the Maastricht and Amsterdam Treaties, there is greater scope than before for EU actions and policies to impinge on individual rights and freedoms.� In its first report on human rights, the Committee emphasised that 'the Community has no criminal jurisdiction, no police, no criminal courts, no prisons' and that a number of ECHR provisions would thus be largely inapplicable within the Community. While it remains the case that the Community has no explicit powers in these areas, important changes have taken place: ��There is provision under Title VI of the TEU, for closer operational co-operation between police and customs officials, also involving Europol, in the prevention and combating of crime. While such co-operation remains essentially inter-governmental there is greater involvement of Community institutions and a greater choice of legally binding instruments". (House of Lords European Union Committee Session 1999-2000, Eight Report: The EU Charter of Fundamental Rights, 2000).

[14] Joint Declaration of 5 April 1977 by the European Parliament, Council and Commission on the protection of fundamental rights (OJ C 103, of 27.04.1977, p 1.)

[15] The process is unique in the EU. There are reports of processes of a �genuine� dialogue within the Convention which led to change of positions over time. See Sch�nlau, 2001: 26.

[16] The drafting of the Charter took place in an open manner, in contrast to the IGC-2000 process, which was mainly conducted behind closed doors. The Convention consulted with other organisations and conducted open hearings to representatives from civil society. Hundreds of NGOs submitted briefs to the Convention on different aspects of the Charter. It received more than 1000 documents from more than 200 different sources. These briefs can be accessed on the Internet.  (


[18] For a discussion on this see Honneth, 1997.

[19] These concerns are often informed by Hegel�s criticism of Kant�s idea of a cosmopolitan right, see Kant 1797/1996. However Hegel�s critique was not of cosmopolitanism as such but of the propensity of turning it into a fixed order: "It is defective only when it is crystallized, e.g. as a cosmopolitanism in opposition to the concrete life of the state", Hegel, 1821/1967: 134, �209.

[20] Which reads: "Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses" (Habermas 1996a: 107).

[21] Forst, 1999a and b. For this see also the articles in Brunkhorst, K�hler and Lutz-Bachmann, 1999; Brunkhorst and Niesen, 1999; Brunkhorst, 1998).

[22] "The conception of natural rights, sacred and inherent in man, was written into the constitutions of the eighteenth, nineteenth, and twentieth centuries, not because men had agreed on a philosophy, but because they had agreed, despite philosophic differences, on the formulation of a solution to a series of moral and political problems", McKeon 1948: 181.

[23] Cf. Alexy 1996: 209-35, on the place of reason-giving: raising claims to correctness is the most universal human experience.

[24] For this see, Habermas 1996a: 339. For less strict claims see Gutmann and Thompson 1996: 101; Rawls 1993: 253; see further Bohman 1996.

[25] "Since human beings are both moral persons and citizens of a state, they have certain duties in an international context. As a moral person, a member of the community of all human beings, one is a 'world citizen' insofar as one has not only the duty to respect the human rights of others, but also a duty to help them when their rights are violated, as when the basic rights of human beings are systematically disregarded in another state," (Forst, 1999a eller b: 53).

[26] However, the grant of a �Right to vote and stand as a candidate at election to the European Parliament� (Article 39) is of limited value while the EP is not the supreme legislative body in the Union.

[27] In addition one may include compulsory jurisdiction before the International Court, new agencies of economic co-ordination and the establishment of an effective accountable, international military force in the short-term objectives of cosmopolitan democracy. See Held, 1995: 279.