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Fundamental Rights (fundamental + right)

Distribution by Scientific Domains

Law and Criminology	90%
2 Other Domains	10%

Selected Abstracts

The General Provisions of the Charter of Fundamental Rights of the European Union

EUROPEAN LAW JOURNAL, Issue 4 2002
R. Alonso García
The Charter of Fundamental Rights of the European Union provides the Union with a ,more evident' (as the European Council of Cologne asked for) framework of protection of the individuals before the public authorities within the European context, after more than thirty years (since the Stauder Case) of full confidence in the leading role played by the jurisprudence of the Court of Justice of the European Communities. This new normative catalogue of fundamental rights (included the so called ,aspirational fundamental rights') implies one more instrument of protection which has to find its own place with regard to the protection afforded by the national Constitutions and the international agreements on human rights, particularly the European Convention on Human Rights, which are already a privileged source of inspiration for Court of Justice of the European Communities. It is the main objective of the General Provisions of the Charter to clarify which is that place and the relationship with those other levels of protection as managed by their supreme interpreters (i.e., the Constitutional,or Supreme,Courts of the Member States of the Union and the European Court of Human Rights). [source]

The Law beneath Rights' Feet.

EUROPEAN LAW JOURNAL, Issue 4 2002
Preliminary Investigation for a Study of the Charter of Fundamental Rights of the European Union
This article is meant as a philosophical preface to the study of the European Charter of Fundamental Rights. In particular, attention is focused on a particular legal positivistic reading of legislation as a political moment which would not allow for transcendental rights. This view is rejected by pointing out how much the notion of citizenship and consequently of fundamental rights is central for the democratic, and in some case even for the legal positivistic, celebration of legislation. In the last section a few conclusions are drawn as far as the scope of the Charter is concerned. In particular, any interpretation of it in the framework of the so,called regulatory paradigm (which gives up the democratic connection between deliberation and representation) is considered incoherent and self,defeating. In addition the principle of indivisibility of rights is evoked in defence of the validity of social rights within the Charter. [source]

Constitutions, Constitutionalism, and the European Union

EUROPEAN LAW JOURNAL, Issue 2 2001
Paul Craig
The institutional reforms of the EU, coupled with the EU Charter of Fundamental Rights, have fuelled the debate about a European Constitution. This paper begins by examining the nature of constitutions and constitutionalism. The focus then turns to the EU itself. It is argued that the Community has indeed been transformed into a constitutional legal order, and that the arguments to the contrary are not convincing. This does not however mean that the EU has, or should have, a European Constitution cognisable as such which draws together the constitutional articles of the Treaties, together with the constitutional principles articulated by the European Court of Justice. The difficulties with this strategy are examined in detail, and the conclusion is that we should not at present pursue this course. It would be better to draw on the valuable work done by the European University Institute in its recent study in order to simplify and consolidate the Treaties. [source]

Union Citizenship,Metaphor or Source of Rights?

EUROPEAN LAW JOURNAL, Issue 1 2001
Norbert Reich
After nearly ten years of introducing Union Citizenship as a concept into Community law it seems time to draw a preliminary evaluation of its importance in reshaping the legal and social positions of citizens living in the EU, more precisely in its Member States. The balance sheet is however mixed: On the one hand, the prevalent position in legal doctrine seems to be that Union citizenship is merely a derived condition of nationality, while on the other side certain fundamental rights are based on criteria other than citizenship/nationality alone. The European Charter on Fundamental Rights will not overcome this dilemma. This can be shown in conflictual areas which are in the centre of discusion in the paper, namely the (limited!) use of the concept of citizenship to extend existing free movement rights in the new case law of the Court of Justice, the resistance towards granting ,quasi-citizenship' rights to third country nationals lawfully resident in the Union for a longer period of time, and the yet unsolved problem of imposing ,implied duties' based on a doctrine of ,abus de droit' upon citizens paralleling the rights granted to them. As a conclusion the author is of the opinion that the question asked for in the title can be answered in the positive only to a limited extent. Citizenship appears to be a sleeping fairy princess still be be kissed awake by the direct effect of Community law. [source]

Migrants as Minorities: Integration and Inclusion in the Enlarged European Union,

JCMS: JOURNAL OF COMMON MARKET STUDIES, Issue 4 2005
RYSZARD CHOLEWINSKI
The developing migration and asylum law and policy of the European Union aim to construct a common normative framework to address the admission and residence of diverse categories of third-country nationals in EU territory. The principles of minority protection, however, are absent from EU law, with the exception of some references in the new Constitutional Treaty and the incorporated Charter of Fundamental Rights, although they have been employed, to a certain degree, in a prescriptive and pragmatic way in the context of the accession of new Member States. However, increased EU attention to the concept of integration in recent Council policy pronouncements and newly adopted legal measures, aimed almost exclusively at lawfully resident third-country nationals, provides a space where migration policy and minority protection principles may engage more directly. This article undertakes a preliminary assessment of the points of convergence and divergence in these two sets of principles, and argues that greater convergence would result in a more coherent EU policy on integration. [source]

The role of civil society in European integration

JOURNAL OF PUBLIC AFFAIRS, Issue 1 2001
Beatrice Rangoni Machiavelli
Abstract This paper explores the concept of ,civic society' in Western political thought, charting the changing understanding of this concept through history and its manifestation in contemporary political and social life. The paper draws out the inferences for our understanding of the role of government, particularly with the European Union and its relationship with citizens and other representative community-based and non-governmental organisations. The paper argues that the fundamental values that are central to civic society underpin the proposed EU Charter on Fundamental Rights and maintains that effective European integration requires responsible participation by Europe's citizens. Copyright © 2001 Henry Stewart Publications [source]

Fundamental Rights: Between Morals and Politics

RATIO JURIS, Issue 1 2001
Gregorio Peces-Barba Martínez
Starting from the impossibility of understanding fundamental rights from the standpoint of natural law doctrine or positivism, the author tackles the issue of rights from a realistic point of view, that is to say from the perspective of law and politics on the one hand, and from the perspective of public morality, on the other. Thus the foundation of fundamental rights is the meeting point of conceptions of social morality that are current in the modern world and the political aspect of the conception of pluralist democracy. Moreover, fundamental rights are considered an instrument to enable the social and moral development of human beings. [source]

The State of Gender Equality Law in the European Union

EUROPEAN LAW JOURNAL, Issue 2 2007
Annick Masselot
As a fundamental right, the principle of gender equality is to apply in all areas of EU law. Its scope has been extended to the access to and supply of goods and services and, according to the European Court of Justice, to the Third Pillar. Despite efforts to render the principle visible and accessible, a number of provisions remain unclear and contradictory. The contribution of external actors in this field is set to help safeguarding and enhancing the Community gender equality acquis. [source]

Ironies in Human Rights Protection in the EU: Pre-Accession Conditionality and Post-Accession Conundrums

EUROPEAN LAW JOURNAL, Issue 1 2009
Anneli Albi
In the wake of the extensive scrutiny of the human rights credentials of the new Member States under the EU pre-accession conditionality, which itself was riddled with paradoxes, this article considers a rather unexpected irony thrown up by the accession of these countries. It is that the post-communist constitutional courts, which have been applauded for vigorous protection of fundamental rights after the fall of the Communist regime that was marked by nihilism to rights, have come rather close to having to downgrade the protection standards after accession, due to the new constraints of supremacy of EC law. The article will consider the sugar market cases of the Hungarian and Czech Constitutional Courts and of the Estonian Supreme Court, which appear to add weight to the concerns that have been voiced in some older Member States about the fundamental rights protection in the EU. Indeed such concerns were recently also addressed in the concurring opinions to the Bosphorus judgment of the European Court of Human Rights. [source]

Citizenship of the European Union,A Legal Analysis

EUROPEAN LAW JOURNAL, Issue 5 2007
Francis G. Jacobs
This concept was considered by some to be embryonic in the original Community Treaties, but was first expressly incorporated into the Treaties by the Treaty on European Union, signed at Maastricht on 7 February 1992. In the case-law of the European Court of Justice, which has given citizenship a content going beyond the express Treaty provisions, the concept is closely related to other basic concepts, including free movement of persons, the prohibition of discrimination on grounds of nationality and the protection of fundamental rights. This article seeks to review the case-law, to disentangle citizenship from other related concepts, and to determine what added value citizenship has brought to the Treaties and what the potential and the proper limits of the concept might be. [source]

The General Provisions of the Charter of Fundamental Rights of the European Union

The Law beneath Rights' Feet.

Europe in Search of its Civil Society

EUROPEAN LAW JOURNAL, Issue 2 2002
Olivier De Schutter
Building upon the experience of the Convention for the elaboration of the Charter of fundamental rights and upon the suggestions of the White Paper on European Governance, this article puts forward proposals for a better involvement of the ,civil society' in the system of the European Union. It offers a general diagnosis of the misunderstandings surrounding the notion of ,civil society' and the relationship of representative democracy to participatory democracy. It then draws some lessons from the experiment in deliberative democracy which led to the drafting of the Charter of fundamental rights. Finally, it focuses on the contribution the organisations of the civil society can make to good governance in the European Union. Altogether, the proposals presented tend to encourage a better structuration of the actors of the civil society. Such a structuration, the article concludes, although it is usually considered with suspicion even by those whom it would most benefit, must be seen instead as a condition for the effective exercise of whichever participatory rights might be granted to the organisations of the civil society. [source]

The European Charter of Fundamental Rights A Changed Political Opportunity Structure and its Normative Consequences

EUROPEAN LAW JOURNAL, Issue 2 2001
Christoph Engel
The European Community is about to enlarge its de facto constitution by a fundamental rights charter. It is intended to become legally binding, at least in the long run. If it is, it will profoundly change the political opportunity structure between the Community and its Member States, among the Member States, among the organs of the Community and in relation to outside political actors. When assessing the new opportunities, one has to keep in mind the weak democratic legitimation of European policy making and its multi-level character. The article sketches the foreseeable effects and draws consequences from these insights for the dogmatics of the new fundamental rights, their relation to (other) primary Community law and to other fundamental rights codes. It ends with a view to open flanks that cannot be closed by the dogmatics of the freedoms themselves, but call for an appropriate design of the institutional framework. [source]

Union Citizenship,Metaphor or Source of Rights?

Parliamentary sovereignty and the new constitutional order: legislative freedom, political reality and convention

LEGAL STUDIES, Issue 3 2002
Mark Elliott
Although the constitutional reform programme undertaken by the Blair administration is formally consistent with the doctrine of parliamentary sovereignty, it is clear that the human rights and devolution legislation, in particular, significantly alter the political and constitutional environment within which Parliament's legislative powers are exercised. This paper considers whether it is meaningfiul, within this new constitutional setting, to adhere to the traditional notion of sovereignty. It is argued that the disparity between a Parliament whose powers are formally unlimited yet increasingly constrained, in political terms, by norms based on fundamental rights and devolved governance may be accommodated, in the short term, by means of constitutional conventions which trace the constitutionally acceptable limits of legislative action by Parliament. However, following examination of the nature of convention and its relationship with law and constitutional principle, it is argued that the possibility arises, in the long term, that conventional limits upon legislative freedom may ultimately evolve into legal limiis, thus ensuring that the fundamental values embraced by the legal order are acknowledged not merely in pragmatic or conventional terms, but as a matter of constitutional law. [source]

Why a Charter of Fundamental Human Rights in the EU?

RATIO JURIS, Issue 3 2003
Erik Oddvar Eriksen
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. [source]

Fundamental Rights: Between Morals and Politics

The Anonymous Matrix: Human Rights Violations by ,Private' Transnational Actors

THE MODERN LAW REVIEW, Issue 3 2006
Article first published online: 27 APR 200, Gunther Teubner
Do fundamental rights obligate not only States, but also private transnational actors? Since violations of fundamental rights stem from the totalising tendencies of partial rationalities, there is no longer any point in seeing the horizontal effect as if rights of private actors have to be weighed up against each other. On one side of the human rights relation is no longer a private actor as the fundamental-rights violator, but the anonymous matrix of an autonomised communicative medium. On the other side, the fundamental rights are divided into three dimensions: first, institutional rights protecting the autonomy of social discourses , art, science, religion - against their subjugation by the totalising tendencies of the communicative matrix; secondly, personal rights protecting the autonomy of communication, attributed not to institutions, but to the social artefacts called ,persons'; and thirdly, human rights as negative bounds on societal communication, where the integrity of individuals' body and mind is endangered. [source]