The European Charter of Fundamental Rights: From a Nation-State Europe to a Citizens’ Europe

8 Colum. J. Eur. L. 37 (2002)

Giorgio Sacerdoti. Professor of International and European Law at Università Commerciale Luigi Bocconi, Milan, Italy.


Fifty years have gone by since the twelve Member States of the Council of Europe signed the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The signatures were affixed in Rome on November 4, 1950. For the first time in history, having learned from the saddening experience of dictatorship and war, a group of states subscribed to a detailed catalogue of basic human rights, which was legally binding. In contrast to the United Nation’s 1948 Universal Declaration, the ECHR was more than a mere declaration, no matter how solemn. It established a procedure allowing citizens to file complaints against the State before specially created international institutions, the European Commission and Court of Human Rights, to obtain justice if one of the rights had been violated.

Great strides have been made since then. Initially, a host of restrictions limited the individual right of application. An individual application could only be submitted to the Commission, not to the Court, and only if the state in question had expressly consented to submit to this international procedure. Italy, for example, did not accept the individual right until 1973.

When the Berlin Wall fell and the Communist regimes in Eastern Europe collapsed, European human rights took on a novel shape. The Council of Europe, initially comprising the vanguard of Western European nations, now has 43 members, all of which also belong to the ECHR. Being admitted to the Council of Europe has become a sine qua non for ascertaining and checking the democratic nature of the former Communist countries, a prerequisite for all subsequent assistance and co-operation. The procedure has also been simplified and strengthened: since 1998 the Commission’s filter is no longer in place, and the European Court of Human Rights, housed in the modem Palais des Droits de I’Homme on the banks of the Rhine in Strasbourg, exercises its jurisdiction directly from the Atlantic to the Urals. The ECHR, a modem “Magna Carta” of human rights and democracy in  Europe, is important for new democracies, where laws are still inadequate and violations of individual rights are more frequent. However, a glance through the Court’s monthly bulletins quickly shows that even the oldest members are often brought to trial in Strasbourg, and frequently States are found guilty on a number of grounds.

The rights guaranteed by the ECHR must be respected in all circumstances within the Member States, and citizens must be able to invoke them before the judiciary, regardless what the national law or constitution might say. A significant development took place recently, when on October 3, 2000, the Human Rights Act came into effect in Great Britain. Westminster thereby made the rights listed in the ECHR part of British law. British judges will have to apply the ECHR directly, prior to any other domestic laws. The latter will have to be interpreted in conformity with the jurisprudence of the Court of Strasbourg.

The concomitance of this event and the introduction of the European Charter of Fundamental Rights – the substantially updated catalogue of the ECHR valid for the European Union – is particularly significant. It contradicts the reservations raised, chiefly by Britain, concerning the Charter. It, thereby, shows that the objections are more political, spurred by the Charter’s potential impact upon the EU’s constitutional structure, than deep-felt opposition toward the contents. Britain’s decision to make the ECHR binding in its own domestic legal system testifies to the acknowledged importance of the judicial protection of internationally recognized fundamental human rights even in those nations where the tradition of liberty is of long standing.