Convergence and Divergence in European Public Law: The Case for Human Rights
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Description
Given that the theme of this book is one which seeks to explore convergences and divergences in European public law, an obvious way of situating the subject of human rights within that framework would be to consider whether the legal and political conceptions of human rights protection within and across member states of the EU are converging under the influence of the European Convention on Human Rights, the evolving human rights jurisprudence of the European Court of Justice, and more recently and speculatively, the EU Charter of Fundamental Rights. The inquiry of this chapter, however, is situated at a prior stage, in considering the extent to which a human rights “system” is in fact emerging at the European level. Its focus is primarily on the EU, rather than on the ECHR or on the relationship between those systems. As far as the Convention on Human Rights is concerned, it is certainly possible to point to a degree of formal convergence, most obviously manifested in its eventual incorporation by all of the EU member states including recently the UK and Ireland. But to consider seriously the impact of the Convention norms and of the jurisprudence of the Strasbourg Court on EU member states would entail a more complex inquiry, examining not only the extent to which national laws and practices have been adapted in order to achieve a degree of conformity with those norms, but also the extent to which such implementation, transposition or absorption of norms might be occurring in ways which are quite distinctive and specific to the various national legal systems. The focus of this chapter instead is on the EU dimension of the subject. In the field of human rights, the question whether some degree of convergence of national law is taking place under the influence of EU law presupposes that there are relevant norms at EU level which could cause national legal systems to converge in this respect. Yet, in the field of human rights (even taking into account how vague the contours of that subject may be) the role and relevance of the European Union remains contested and confused. Unlike some other fields of administrative and constitutional law, the legal foundations of the EU’s competence to adopt human rights norms and its position as an actor in that field are uncertain. From one perspective, it could be said that the EU’s influence on the nature and content of human rights norms within member states is at best a derived and indirect one, since the human rights principles recognised within EU law are actually drawn from the ECHR and from the national legal systems in the first place. However, the position is more complex than this. While there is clearly—as there is in various other fields of administrative law—some kind of reciprocal relationship between the development of legal principles within the EU legal system and within member states’ legal systems, the EU is arguably developing what might be called an autonomous, rather than a parasitic or purely derivative human rights competence. How the norms and principles which are articulated by the EU will be shaped, and whether and how they are likely to influence the national legal systems remains to be seen. But my current focus is on examining the emerging basis for and nature of a distinctive European Union human rights policy, rather than tracing the subsequent question of its influence on national systems.
Source Publication
Convergence and Divergence in European Public Law
Source Editors/Authors
Paul Beaumont, Carole Lyons, Neil Walker
Publication Date
2002
Recommended Citation
de Búrca, Gráinne, "Convergence and Divergence in European Public Law: The Case for Human Rights" (2002). Faculty Chapters. 331.
https://gretchen.law.nyu.edu/fac-chapt/331
