The European Union and Human Rights: Towards A Post-National Human Rights Institution?

There is growing evidence that the European Union (EU) is becomingmore involved in human rights protection and has the capacityto turn into an unprecedented post-national human rights protectioninstitution. Based on that evidence, this article suggests differentarguments in favour of a further development in this direction.These arguments stem not only from a general global justiceapproach to post-national institutions’ responsibilities,but also from the concept of human rights itself and the specificneeds of human rights protection at the post-national level.The EU's institutional framework presents advantages that fitthe general criteria of institutional design in the human rightscontext. Of course, many doubts and critiques may be raisedagainst an entity which started primarily as a functional andeconomic institution, and important reforms, some of which areventured in the present article, are still needed to get theEU closer to this institutional ideal. More generally, the articleemphasises the unique example and precedent the EU may constitutefor normative institutional thinking about global justice atthe post-national level.     

The Log in Your Eye: Is Europe's External Promotion of Religious Freedom Consistent With its Internal Practice?

The commitment of the EU to the external promotion of the respect for human rights allegedly distinguishes its foreign policy from that of traditional powers. Yet there is the perception that EU's statements are not always consistent with internal practices. This article analyses one set of EU's inconsistencies that has not been sufficiently studied: the discrepancy between internal and external human rights standards. The article focuses on the promotion and protection of freedom of religion or belief, which has become a priority of the EU's foreign policy. It is submitted that the EU's external position generally reflects values common to the Member States, but is sometimes contradicted by the practice of domestic authorities. The human rights standards identified in the EU's foreign policy may arguably serve as a reference for legal reform and the interpretation of fundamental rights in Europe.     

Environmental Rights for the Future? Intergenerational Equity in the EU

Courts, commentators and legislators in Europe and around the world have now recognized that environmental degradation may constitute a violation of human rights. While the human rights model may be effective in addressing the environmental interests of existing human beings, there is a pressing need for a legal doctrine that effectively addresses the environmental rights of the future. Although the EU has actively embraced the sustainable development model and its recognition of the environmental needs of future generations, it has failed to embrace the correlative doctrine of intergenerational equity – a detailed, specific and pragmatic legal framework for global and domestic environmental governance. This article assesses EU environmental law and policy against the requirements of the doctrine of intergenerational equity and concludes that the EU's sustainable development model is inadequate from the perspective of future generations. The recommendation is made that the EU adopt intergenerational equity as a necessary corollary to sustainable development.     

Gender Equality, Citizenship, and the EU's Constitutional Future

Abstract:  While gender equality has been a matter of some concern for EU law and policy makers over the past half century, this concern has tended, at least historically, to focus upon equal treatment in employment and has not yet materialised into the delivery of a broader package of civil, political, and social rights for women. Taking the concept of EU citizenship as a framework within which to view the promotion of gender equality, this article assesses the debate on the constitutional future of the EU. This is with a view to examining the possible amelioration of women's social position through the exploitation of opportunities that the constitutionalisation of EU law presents. Looking at women's citizenship through the lens of political rights to participate in the debate on the EU's future, together with examining substantive aspects of the Constitutional Treaty for their gender equality content, the article suggests that a more comprehensive endeavour by all institutional actors to engage in gender mainstreaming is needed in order to give effect to a broader form of equality between women and men.     

Transformation or Dilution: Fundamental Rights in the EU Social Space

Abstract:  This article argues that in developing social rights to counterbalance economic freedoms, the EU has begun to reformulate traditional notions of rights. Instead of creating rights in their traditional individualised, negative, judicially enforceable, and fault-based form, a new proactive model is emerging, which aims at institutional change, based on the notion of the active citizen and the centrality of participation in both rule formation and enforcement. It is argued that while this model has important advantages, its weakness lies in its dependence on political will. The challenge is therefore to ensure that proactive strategies are firmly centred on fundamental rights rather than political discretion. Part I briefly sketches the development of social rights in the EU; Part II examines the applicability of Third Way ideology; Part III considers European employment strategy and gender mainstreaming, asking whether they represent a dynamic new manifestation of fundamental rights at work, or a betrayal. Part IV applies a similar evaluation to the EU Charter.     

The Human Rights Clause in the European Union's External Trade and Development Agreements

Abstract: Since 1992, the European Union (EU) has included in all its agreements with third countries a clause defining respect for human rights and democracy as an ‘essential element’ of its external relationship. A Council decision of May 1995 spells out the basic modalities of this clause, with the aim of ensuring consistency in the text used and its application. The human rights clause is unique to the EU's bilateral agreements, and now applies to over 120 countries. It represents a new model for EU external relations as well as for international cooperation. The EU plays a leading role in the WTO and international economic relations. The human rights clause will have implications for the development of international rules concerning trade‐related human rights policy.     

Between Human Rights and Sovereignty*—An Examination of EU–China Political Relations

This paper will study the differences between the EU and China on the understanding of human rights and national sovereignty and their impact on EU‐China political relations. The paper will be divided into the following parts. The first part will give a review of the concepts of both sovereignty and human rights and the rising concern of human rights in the contemporary world. The second part will study the EU's policy of human rights to see why the EU adheres to its values. The third part will look at China's policy on sovereignty and human rights. The fourth part will examine EU‐China political relations and analyse the difficulties in bilateral relations, due to differences in values between the EU and China. The fifth part will draw some tentative conclusion.     

Security,privacy and freedom and the EU legal and policy framework for biometrics

The adoption of the Treaty of Lisbon and the granting to the Charter of Fundamental Rights of the same legal force as the Treaty has lent a new impulse to the consideration of fundamental human rights by the European Union (EU). The question remains, however, as to how this legal discourse, centred upon human rights, is actually shaping the EU regulatory framework in specific policy domains. The aim of this paper is to critically appraise the ways that the fundamental rights of security, privacy and freedom guaranteed by the Charter are being construed in the context of EU law and policy on biometrics, an ethically and morally sensitive security technology whose development and use are being actively promoted by the EU. We conclude that the interpretation of the pertinent rights, as well as their balancing, owes a great deal to the goals of EU policies for research and development, and under the auspices of Freedom, Security and Justice, shaped largely by political and economic considerations. These considerations then tend to prevail over ethically or morally-based legal claims.     

Governing Cocaine Supply and Organized Crime from Latin America and the Caribbean: The Changing Security Logics in European Union External Policy

The logics of the European Union’s policy and practices against narcotic drugs in Latin America and the Caribbean (LAC) have undergone a substantial shift the past decade: from development to security. Based on an empirical mapping of the EU’s drug-related projects in LAC, this article argues that an ‘integrated and balanced’ approach to drugs policy is being replaced by a bifurcation between the broader domains of development policy and security policy. Questions are raised as to how the EU’s projects on development and security might counteract one another, and how the Union’s programme aimed at dismantling transnational organized crime along the cocaine trafficking routes to Europe might have unintended consequences. While keeping in mind the shifting tectonics of the international drug prohibition consensus, the article goes on to analyze the increasingly salient security rationale in EU external drugs policy against the backdrop of the EU’s emerging role as a global security actor. In doing so, it touches upon the intrinsic tensions between human rights and (supra) national security.     

Smuggling of Human Beings from a Human Rights Perspective: Obligations of Non-State and State Actors under International Human Rights Law

Although trafficking of human beings has been widely regardedas a human rights issue, little attention has been paid to humanrights aspects of smuggling as it is mainly characterised asfacilitation of illegal migration. The purpose of this articleis to demonstrate that smuggling of human beings equally raiseshuman rights concerns. The article begins by exploring the definitionsof trafficking and smuggling and their policy implications.It then highlights some human rights issues inherent in theact by examining its causes, process and consequences. It continueswith an analysis of human rights obligations imposed upon non-Stateand State actors. The fact that non-State actors are not helddirectly accountable under international human rights law pointsto an investigation of legal obligations imposed upon States,and this article examines an obligation to protect victims asan example.     

The Transposition of EU Law: ‘Post‐Decisional Politics’ and Institutional Autonomy

The transposition of European Union (EU) law into national law is a significant part of the EU policy process. However, political scientists have not devoted to it the attention that it deserves. Here, transposition is construed as part of the wider process of policy implementation. Drawing on implementation theory from the field of public policy, the article outlines three sets of factors (institutional, political, and substantive) that affect transposition. Second, the article examines the manner in which eight member states transpose EU legislation, and identifies a European style of transposition. An institutionalist approach is employed to argue that this style is not the result of a process of convergence. Rather, it stems from the capacity of institutions to adapt to novel situations by means of their own standard operating procedures and institutional repertoires. It concludes by highlighting (a) the partial nature of efforts at EU level to improve transposition, themselves impaired by the politics of the policy process and (b) some ideas regarding future research.     

EU citizenship and (fundamental) rights: Empirical,normative, and conceptual problems

There is a close connection between EU citizenship and rights, both in the law and literature. This article claims that EU lawyers' understanding of EU citizenship and rights suffers from empirical, normative, and conceptual shortcomings. I will point out that there has been insufficient awareness for the boundedness of EU citizenship, the political structure of the EU and the constraints this (realistically) imposes on the ‘meaningfulness’ of EU citizenship. EU citizenship must not be understood as requiring an elaborate set of equal rights for all Union citizens throuzghout the EU, but valued for its ability to allow its status holders to enjoy (almost) full membership in the Member States of which they do not possess nationality.     

The Way We Do Europe: Subsidiarity and the Substantive Democratic Deficit

The new institutional framework of subsidiarity is expected to lower the EU democratic deficit. In contrast to this optimistic scenario, I argue that the success of subsidiarity depends on its capacity to unravel the EU's ‘substantive’ democratic deficit. Linked to the Union's functionalist institutional design, this dimension of the democratic deficit has developed due to two limitations of EU‐level politics. First, the EU functionalist design has narrowed the range of topics open to democratic debate (horizontal substantive democratic deficit). Second, the proportion of the debate which we could genuinely describe as being political is declining as a result of the de‐politicisation of EU goals, underpinned by a massive accumulation of allegedly apolitical expert knowledge (vertical substantive democratic deficit). Against this background, I contend that by involving actors relatively alien to the EU functionalist thinking, subsidiarity could offer an opportune ground for the re‐politicisation of democratic ‘blind spots’ in EU policy making.     

Competing for the Highly Skilled Migrants: Implications for the EU Common Approach on Temporary Economic Migration

Abstract:  Globalisation has increased the mobility of people while rapid development of the knowledge economy places human capital at the centre of economic progress. Both result in competition for highly skilled labour among states, particularly the more-developed states. The EU has a particular role in this global competition for the highly skilled. It is faced with the ageing of its population. Furthermore, the quest to revitalise the EU's economy by implementing the ambitious Lisbon Strategy requires an additional 700,000 research positions. Lastly, the EU is trying to design a common European policy for economic migration, starting with the Green Paper in 2005. This article aims to contribute to a common policy design in the area of highly skilled temporary migration. It compares the UK and German schemes for highly skilled immigrants (the only two in the EU) with the successful US scheme, still seen as the benchmark for the EU. The findings are twofold. First, there is a set of obligatory characteristics that should be introduced to the schemes to make them more attractive. Second, as the programmes are not the only factors that determine the attractiveness of a respective country, the article argues that an EU common policy for highly skilled migrants would make the EU area more attractive as a whole and therefore increase its competitiveness in the global economy.     

The reluctant activist: the Italian parliament and the scrutiny of EU affairs between institutional opportunities and political legacies

ABSTRACT

The article analyses the participation of the Italian Parliament in the scrutiny of EU affairs after the entry into force of the Treaty of Lisbon and its implementation through the national Law 234/2012. The empirical analysis highlights that notwithstanding the presence of favourable institutional and political conditions, the involvement of the Italian Parliament in EU affairs moderately increased. The Treaty of Lisbon and Italian legislation improved Parliament’s rights to participate in the ascending phase but without altering significantly the balance of powers between the European Commission and NPs, and between the Italian Parliament and the Government. Moreover, MPs perceive the EWS and the PD as not impactful on decision-making at the EU and the national level.     

Government(ality) by Experts: Human Rights as Governance

The suggestion that the general economy of power in our societies is becoming a domain of security was made by Michel Foucault in the late 1970s. This paper takes inspiration from Foucault’s work to interpret human rights as technologies of governmentality, which make possible the safe and secure society. I examine, by way of illustration, the site of the European Union and its use of new modes of governance to regulate rights discourse—in particular via the emergence of a new Fundamental Rights Agency. ‘Governance’ in the EU is constructed in an apolitical way, as a departure from traditional legal and juridical methods of governing. I argue, however, that the features of governance represent technologies of government(ality), a new form of both being governed through rights and of governing rights. The governance feature that this article is most interested in is experts. The article aims to show, first and foremost, how rights operate as technologies of governmentality via a new relation to expertise. Second, it considers the significant implications that this reading of rights has for rights as a regulatory and normalising discourse. Finally, it highlights how the overlap between rights and governance discourses can be problematic because (as the EU model illustrates) governance conceals the power relations of governmentality, allowing, for instance, the unproblematic representation of the EU as an international human rights actor.     

Levelling the EU participatory playing field: A legal and policy analysis of the Commission's public consultations in light of the principle of political equality

The EU Commission has a long tradition of consulting interested parties when formulating its policies. While the rationale, format and legal basis relied upon by the Commission when holding public consultations have changed over time, its systematic inability to make those consultations equally accessible to all affected parties has remained constant. This article discusses the extent to which such a consultation practice conflicts with the principle of political equality, as enshrined in Article 9 TEU. Given the Commission's unrestrained discretion regarding who, how and when to consult and the absence of corresponding participatory rights, it argues that the EU can no longer presume that all stakeholders—especially citizens and civil society groups—enjoy equal access to EU institutions. Rather, under a proposed substantive reading of the principle of political equality, it contends that EU institutions are procedurally required to ensure that everyone will effectively be given equal opportunities of access to the policy process. Only a series of structural, power‐shifting reforms—some of which are proposed in this article—may enable participation to become an autonomous form of legitimation of the Union.     

The contribution of EU public procurement law to corporate social responsibility

This article argues that while EU public procurement law increasingly allows public authorities to take environmental and social considerations into account in public purchasing decisions, it does impose limits on the possibility for authorities to incentivise corporate social responsibility (CSR) policies through public procurement. These specific limits are the result of the EU legislator's choice to endorse the Court of Justice's ordoliberal approach to public procurement law. This approach is in tension with EU CSR policy, and more broadly, the EU's non‐economic goals such as environmental protection, the fight against climate change, human rights and social policy. It reflects a normative preference for the right of undertakings to compete for a tender over the freedom of government authorities to choose a supplier on public interest grounds even if these choices are based exclusively on a legitimate public interest and should be reconsidered.     

公益诉讼社会功能论

公益诉讼的社会功能，决定了它能否成功实现制度的变迁、达致制度良好运作的总体成效。相较于以调整个人之间利害冲突为基本对象的传统民事诉讼，公益诉讼不仅具有纠纷解决、实体权利保护、不当行为纠正等基本的诉讼功能，而且基于其特有的目标、结构和运行机制，还具有形成社会公共政策、创设或扩展权利、制约公权以及促进社会变革这四大特殊功能。     

The European Parliament in Treaty Reform: Predefining IGCs through Interinstitutional Agreements

Abstract:  Despite the fact that Interinstitutional Agreements (IIAs) are an established part of the mass of informal and formal rules structuring EU decision-making and interinstitutional relations, there is as yet no common understanding of their role and functions in the institutional and legal system of the EU—neither in political science nor legal studies. Tracking the evolution of the European Parliament's competencies in three areas where IIAs figure prominently—comitology, legislative planning, and the establishment of procedures to hold the Commission accountable—this article seeks to show that the European Parliament strategically uses IIAs as instruments to wrest competencies from the Council and the Commission. Having no formal say in treaty reform, the European Parliament 'creates facts' through informal but politically binding IIAs hoping that, once established, it can achieve a later codification of its new rights at IGCs. Viewed this way, the analysis of the role of IIAs in Treaty Reform could help to explain a still under-researched puzzle in European integration theory, namely the incremental parliamentarisation of the institutional system of the EU over the last two decades.