Definition and development of human rights and popular sovereignty in Europe Science and technique of democracy, No. 49 Venice Commission Council of Europe Publishing For a full list of other titles in this collection, see the back of the book. The opinions expressed in this work are the responsibility of the authors and do not necessarily reflect the official policy of the Council of Europe. All rights reserved. No part of this publication may be translated, reproduced or transmitted, in any form or by any means, electronic (CD-Rom, Internet, etc.) or mechanical, including photocopying, recording or any information storage or retrieval system, without the prior permission in writing from the Directorate of Communication (F-67075 Strasbourg Cedex or [email protected]). The translation of several papers into English was made thanks to the contribution of the Cluster of Excellence. Cover design and layout: Documents and Publications Production Department (SPDP), Council of Europe Council of Europe Publishing F-67075 Strasbourg Cedex http://book.coe.int ISBN 978-92-871-7134-4 © Council of Europe, December 2011 Printed at the Council of Europe Contents Foreword by Jan Helgesen ....................................................................................5 Introduction by Gret Haller .......................................................................................9 Basic issues From a gubernative to a deliberative human rights policy definition, and further development of human rights as an act of collective self-determination by Klaus Günther .................................................................................35 3 The human right to democracy – a moral defence with a legal nuance by Samantha Besson ............................................................................47 The democratic constitution by Richard Bellamy ..............................................................................77 “From above” or “from the bottom up”? The protection of human rights – between descending and ascending interpretations by Sergio Dellavalle .............................................................................91 Gloomy prospects – seven theories on the future of democracy within a world society by Hauke Brunkhorst ..........................................................................115 The Council of Europe Human rights between sovereign will and international standards: a comment by Jarna Petman ................................................................................131 Definition and development of human rights in the international context and popular sovereignty by Inge Lorange Backer ......................................................................137 Definition and development of human rights and popular sovereignty inEurope Human rights and popular sovereignty in the perspective of the Venice Commission by Jan Helgesen ................................................................................145 The European Union Human rights and transfers of sovereignty in the European Union: consequences for the definition and development of human rights by Catherine Schneider ......................................................................151 Commentary on Catherine Schneider’s report by Christoph Möllers ..........................................................................177 The European Union Fundamental Rights Agency within the European and international human rights architecture: the legal framework after the entry into force of the Treaty of Lisbon by Armin von Bogdandy and Jochen von Bernstorff................................181 The national level (examples) Combining abstract ex ante and concrete ex post review: the Finnish model by Kaarlo Tuori..................................................................................209 4 Processes of definition and development of human rights besides popular sovereignty: a comment by Richard Clayton ............................................................................217 Judicial review as a substitute for not yet constituted instances of popular sovereignty by Peter Paczolay ..............................................................................221 Commentary on Peter Paczolay’s report by Regina Kreide ...............................................................................227 Foreword by Jan Helgesen1 The “UniDem”– University for Democracy – programme was born with a specific aim: that of promoting and stimulating in-depth and mature reflection on issues of law and democracy. These issues are to be approached from several cultural, historical, and geographical angles, in an unbiased spirit of open-mindedness. The Venice Commission of the Council of Europe has strived to inject into these seminars the enriching and unique experience – both scientific and practical – which the Commission has accumulated through the years.1 UniDem seminars have covered a range of issues including “The transformation of the nation-state in Europe at the dawn of the 21st century”, “European and US constitutionalism”, “Local self-government, territorial integrity and protection of minorities”, “The protection of fundamental rights by the Constitutional Court”, and, more recently, “Cancellation of election results” and “Controlling electoral 5 processes”. None of these topics – neither the more technical ones, nor even the more philo- sophical ones – represent a sterile, abstract, academic discussion; they all trans- late into fresh, novel ideas which subsequently enrich the works of the Venice Commission, as well as – we like to believe – those of the scientists, the polit- icians, the judges, and the students who participate in or become familiar with the proceedings of the seminars. The topic of the UniDem seminar where the papers included in this publication were presented – the role of popular sovereignty in the definition of human rights – touches upon one of the main areas of work of the Venice Commis- sion. Broadly, the Commission has dealt with human rights in three respects, addressing: –the national foundations of human rights protection, such as constitutional entrenchment and legislation; –the national mechanisms of protection of rights guaranteed in the constitu- tion, such as constitutional courts and ordinary courts; 1. Professor, University of Oslo, former President of the Venice Commission, Member of the Venice Commission. Definition and development of human rights and popular sovereignty inEurope –the international protection of human rights, for example through the Council of Europe system of protection, the role of the European Union, and the identification and development of international standards. The international dimension of the protection of human rights indeed represents one of the core concerns of the Council of Europe (and of the Venice Commis- sion). It protects the universality of human rights, and transcends the notion of human rights which depend on individuals belonging to specific communities or political groups. Yet this international dimension now encounters increasing criticism. It is accused of lacking democratic legitimisation, and of imposing an abstract and authori- tative definition of human rights upon national authorities. The obligations as defined by the international bodies are of course “minimum” ones: states are free to go beyond this minimum and to provide original solutions to human rights issues provided that they do not go below this minimum. This core content is non-negotiable. This dimension is not the controversial dimension now, how- ever. It is the other way around. If one looks at the case law of the European Court of Human Rights, it is obvious that this core content has been progressively expanded and represents nowadays a sophisticated and very advanced set of human rights obligations. And some states, those which have joined the Council of Europe more recently, have not been part of the entire process of definition. 6 The Venice Commission, of course, has no position on these controversial issues. Neither does the President of the Venice Commission. The rationale behind the Venice Commission’s involvement is that we think these questions need to be discussed. The Venice Commission is based on two pillars, as the full title of the Commission suggests: the European Commission of Democracy through Law. The Venice Commission is on alert whenever and wherever these two basic values of democracy and law are challenged. As a prima facie observation, we see that this dilemma is perceived more acutely in the so-called old democracies in Europe. Then two questions present themselves. We hear claims that the root of the problem is that: –the process of defining human rights commitments now belongs toan enlarged Europe. The old democracies are not in control any longer; –the Court has, by extensive interpretation, created a sophisticated system of protection which goes far beyond the intention or acceptance of govern- ments and parliaments in present-day Europe. This dilemma, however, is not just a concern for the old democracies in Europe. It takes us outside the European continent. Actually this is, for the time being, a global dilemma. In January 2009, the Venice Commission organised, together with the Constitutional Court of South Africa, the first World Conference on Constitutional Justice, in Cape Town. On that occasion, I gave a press conference together with the Honourable Chief Justice Langa. The journalists challenged the Foreword Chief Justice. How