Gráinne de Búrca

The worlds of european constitutionalism

Contributors: Grainne de Burca, J. H. H. Weiler, Bruno De Witte, Neil Walker, Daniel Halberstam, Nico Krisch

After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?

This article examines the engagement by the Court of Justice of the European Union (CJEU) with the EU Charter of Fundamental Rights over the period since the Charter was made formally binding by the Lisbon Treaty in 2009. A survey of the output of the Court during that time reveals a sharp rise in the number of cases in which a provision of the Charter was cited or argued before the Court. Further, the Court has engaged substantively with and given prominence to the Charter argument in a growing number of these cases. In other words, the incidence of human rights adjudication before the CJEU has been significantly augmented by the adoption of the Charter as a binding legal instrument. The article considers the implications for the Court of Justice of the growing demand for it to function in certain cases as a human rights adjudicator. More particularly, it questions whether the long-standing judicial style and approach of the Court – its self-referential, formulaic and often minimalist style of reasoning – is appropriate to this expanded role. The article argues that the nature and context of the increasing number of human rights claims being made before the Court call for greater openness on the part of the CJEU to the use of international and comparative law and to the possibility of third party interventions. Further, and particularly given the evident unwillingness of the CJEU to countenance the practice of separate concurring or dissenting opinions, the Court should, particularly in cases involving human rights claims, rethink its increasingly frequent practice of dispensing with the opinion of an Advocate General.This article examines the engagement by the Court of Justice of the European Union (CJEU) with the EU Charter of Fundamental Rights over the period since the Charter was made formally binding by the Lisbon Treaty in 2009. A survey of the output of the Court during that time reveals a sharp rise in the number of cases in which a provision of the Charter was cited or argued before the Court. Further, the Court has engaged substantively with and given prominence to the Charter argument in a growing number of these cases. In other words, the incidence of human rights adjudication before the CJEU has been significantly augmented by the adoption of the Charter as a binding legal instrument. The article considers the implications for the Court of Justice of the growing demand for it to function in certain cases as a human rights adjudicator. More particularly, it questions whether the long-standing judicial style and approach of the Court – its self-referential, formulaic and often minimalist style of reasoning – is appropriate to this expanded role. The article argues that the nature and context of the increasing number of human rights claims being made before the Court call for greater openness on the part of the CJEU to the use of international and comparative law and to the possibility of third party interventions. Further, and particularly given the evident unwillingness of the CJEU to countenance the practice of separate concurring or dissenting opinions, the Court should, particularly in cases involving human rights claims, rethink its increasingly frequent practice of dispensing with the Opinion of an Advocate General.

The road not taken: the European Union as a Global Human Rights actor

For many, the enactment of the European Union’s Treaty of Lisbon, with its range of significant human rights provisions, marks the EU’s coming of age as a human rights actor. The Lisbon Treaty inaugurated the legally binding character of the EU Charter of Fundamental Rights (EU Charter), enshrined a commitment to accede to the European Convention on Human Rights (ECHR), and, in Article 2 of the Treaty on European Union (TEU), identified human rights as a foundational value. These changes have already drawn comment as developments that “will change the face of the Union fundamentally,” that take the protection of rights in the EU “to a new level,” and that indicate that “the arguments for improving the status of human rights in EU law… have finally been heard. There is general agreement, in other words, that the EU has reached the high point of its engagement with human rights.

The Trajectories of European and American Antidiscrimination Law

There is an apparently sharp contrast in the respective state of antidiscrimination law in Europe and the United States at present. In Europe, antidiscrimination norms are proliferating, within both the European Union and the Council of Europe systems, and elaborate networks and programs of implementation are being established and funded. The grounds of discrimination are widening, the norms are being strengthened and the new laws are being actively litigated. In the United States, by comparison, decades of social and political backlash have significantly weakened the corpus of antidiscrimination law that emerged from the civil rights movement, and the courts have become an arena for ideological battle. Yet, even if certain juridico-cultural differences in conceptions of equality and discrimination between the two jurisdictions are evident, none of the likely explanations for such a stark contrast between the state of antidiscrimination law and policy in each seems fully convincing. On a closer analysis, it seems that the future of antidiscrimination law and policy in Europe faces equally daunting challenges, even if the body of law in question is decades younger and less tested than its U.S. counterpart. One of the themes emerging from this collection of essays, however, is that there are similarities in the way problems of entrenched inequality are being addressed and in some of the solutions being tested both in the United States and in Europe. In particular, there has been a shift away from traditional judicial remedies and towards renewed administrative as well as other more innovative approaches in both jurisdictions. In the United States, this seems to be prompted in part by disillusionment with the current legal stalemate, while in Europe some of the novel approaches - including the spread of equality bodies, parity democracy, and proactive public duties - are being promoted by international and European institutions.

Human Rights Experimentalism

Abstract Human rights in general and the international human rights system in particular have come under increasing attack in recent years. Quite apart from the domestic and global political events since 2016, including an apparent retreat from international institutions, the human rights system has in recent times come in for severe criticism from academic scholars. Amongst the various criticisms levelled have been: (1) the ineffectiveness and lack of impact of international human rights regimes, (2) the ambiguity and lack of specificity of human rights standards, (3) the weakness of international human rights enforcement mechanisms, and (4) the claim to universalism of human rights standards coupled with the hegemonic imposition of these standards on diverse parts of the world. This article responds to several of those criticisms by introducing the idea of experimentalist governance, interpreting key aspects of the functioning of certain international human rights treaties from the perspective of experimentalist governance theory, and surveying a body of recent scholarship on the effectiveness of such treaties. Contrary to the depiction of international human rights regimes as both ineffective and top-down, the article argues that they function at their best as dynamic, participatory, and iterative systems. Experimentalist governance offers a theory of the causal effectiveness of human rights treaties, brings to light a set of features and interactions that are routinely overlooked in many accounts, and suggests possible avenues for reform of other human rights treaty regimes with a view to making them more effective in practice.

Introduction to Symposium on Jeffrey L. Dunoff and Mark A. Pollack, “The Judicial Trilemma”

Jeffrey Dunoff and Mark Pollack open their analysis of three interrelated design features of international courts and tribunals by reflecting on the controversy generated by the U.S. decision in 2016 to veto the reappointment of a member of the World Trade Organization’s (WTO’s) Appellate Body.1 The decision to block Sueng Wha Chang’s reappointment is presented by the authors as one that secured the accountability of an individual tribunal member, while at the same time compromising his independence. Building on this apparent tension between judicial independence and individual judicial accountability, Dunoff and Pollack develop the concept of the Judicial Trilemma, which they present as a dilemma facing those who design international tribunals or participate therein as decision-makers. The dilemma is that in pursuit of what the authors present as the three major values or design features of international tribunals—independence, accountability, and transparency—the designers and participants necessarily must prioritize any two at the expense of the third. Dunoff and Pollack illustrate their claim by examining the operation of four tribunals: the WTO Appellate Body, the Court of Justice of the European Union (ECJ), the European Court of Human Rights, and the International Court of Justice (ICJ), each of which is described as prioritizing or maximizing two of these “dynamically interacting” values at the expense of the third. This symposium contains five responses by leading authors to this thought-provoking article, each focusing on a different aspect or institutional application of the apparent Judicial Trilemma. Helen Keller and Severin Maier begin by challenging the conception of independence elaborated in the article as being too wide in some respects and too narrow in others.2 They suggest that judicial independence should mean simply that judges are free to decide disputes without improper outside influence, and not that they must be free from all outside influence, or that they must decide without reference to their own ideological preferences. They also suggest that the notion of judicial independence should be appraised not only by reference to whether judicial terms are nonrenewable, which is the approach adopted by Dunoff and Pollack, but also by reference to the existence and scope of judicial immunity. Gleider Hernández questions the American-centric, decontextualized, and selective nature of the Trilemma.3 He suggests that the Trilemma should in fact be a quadrangle, with collective institutional authority, and the