The 10th anniversary of the Charter of Fundamental Rights is a reminder that the EU’s main priority is to ensure respect and protection of human dignity. writes Alice Neffe.
Alice Neffe is a legal counsel for ADF International in Brussels
Over the last few weeks, Europe has debated who should end up holding the top jobs in Brussels for the next five years. However, the real question is what in fact is the EU’s top job.
While shuffling candidate names, the European Union’s leaders adopted a Strategic Agenda for 2019-2024, which will guide the next President of the European Commission. This Strategic Agenda explicitly puts first the protection of citizens and freedoms: “[the] EU shall defend the fundamental rights and freedoms of its citizens, as recognized in the Treaties, and protect them against existing and emerging threats.” Consequently, the profile of the European Union Charter of Fundamental Rights (EU Charter), which is celebrating its 10th anniversary this year, has been elevated in the political agenda.
The EU Charter promised to be ‘the most modern, sophisticated and comprehensive legally binding fundamental rights instrument’. Its political potential was evident a decade before it became legally binding. When it was proclaimed in December 2000, the then President of the European Council, Jacques Chirac, said that this text had ‘major political importance [and] its full significance will become apparent in the future’. In a recent report, the European Commission described the EU Charter as ‘a key instrument to make fundamental rights a reality in people’s lives’, but also notes that it is ‘still not used to its full potential and awareness remains low’.
Building on the European Convention on Human Rights (ECHR), the constitutional traditions of the EU Member States, and other international conventions it also elevates and recognizes new rights, freedoms, and principles.
Significantly, in its first article, the EU Charter guarantees the right to human dignity, which ‘is inviolable [and] must be respected and protected’.
International law recognizes human dignity as the foundation of human rights and their universality. It receives attention, recognition, and protection in all prominent human rights agreements. However, the EU Charter is the first human rights instrument to guarantee the subjective right to human dignity in its operative part, allowing individuals to claim violations of their human dignity in court.
Within the constitutional orders of Member States, human dignity does not have this level of visibility. Recently, the European Union Agency for Fundamental Rights (FRA) assessed the added value of the EU Charter in the Member States and found that the constitutional frameworks of Cyprus, Denmark, Luxembourg, Malta, and the Netherlands, do not ‘fully mirror’ the right to human dignity as enshrined in the EU Charter.
As important as the letter of the law is, it must be applied. The Court of Justice of the European Union (CJEU) referred to the EU Charter 1318% times more in 2018 than in 2010, while national courts drew on the Charter 442% times more in the same period. However, a quick search displays only 27 cases where the CJEU explicitly refers to Article 1. Even when precluding the patentability of the human embryo by ‘respect for the fundamental principles safeguarding the dignity and integrity of the person’, the CJEU did not refer to the EU Charter in its judgment.
Most of CJEU cases relying on human dignity pertain to the rights of asylum seekers and people under international protection. In 2017, the Bulgarian Supreme Administrative Court referred to Article 1 of the EU Charter to uphold the rights of a child with disabilities.
However, in the upcoming years, the CJEU, as well as the European Commission, Parliament, and Council, will need to have a collective understanding of ‘human dignity’ and proactively protect the very essence of human dignity against ‘emerging threats’.
The July 5, 2019 marked the 23rd birthday of the late Sheep Dolly – the first living being born from a cloned embryo. The concern is that the cloning of human embryos might be just around the corner. Reality caught up with science fiction when, in November 2018, the world heard of the birth of the first gene-edited babies, so-called CRISPR babies, in China. This trespassing of well-defined ethical and safety requirements shocked the scientific world. In Europe, such procedures are in violation of not only Article 1 of the EU Charter protecting human dignity, but also, the prohibition of eugenic practices, commercialization of the human body, and reproductive cloning (prohibited under Article 3).
The concern about future challenges to human dignity brought by technology is shared by the High-Level Expert Group on Artificial Intelligence (AI). In June 2019, it published Ethics Guidelines which call for a ‘human-centric’ approach to AI. The High-Level Group notes that such an approach ‘anchoring in fundamental rights requires collective societal and constitutional foundations in which individual freedom and respect for human dignity is both practically possible and meaningful, rather than implying an unduly individualistic account of the human’.
The development of technology and the human desire to push the boundaries of what is feasible may soon fundamentally challenge what ‘human’ means. Therefore, regardless of who holds the EU’s top jobs, their duty will be to ensure respect and protection of human dignity.