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Center for European
Integration Strategies



Working Paper Series
No 5 / 2007


Overcoming Euroskepticism:
European Integration through
the Protection of Human Rights,
peoples and Minority Rights




24 August 2007









Center for European Integration Strategies

Working paper Series No 5 / 2007
Geneva
Sarajevo
Vi enna







































Abstract


Present discussions on the EU
integration process show that
the citizens of the Member
States and their Governments
have become euroskeptic. The
strengthening of the protection
of human rights within the EU
and the creation of an
independent European
citizenship which is based on
European values may help
overcome this scepticism.
European concepts of the
protection of peoples and
minority rights will also help
Bosnia and Herzegovina to
further implement constitutional
guidelines to protect groups
who have become minorities in
their respective home towns and
villages upon their return,
following genocide, ethnic
cleansing and massive
violations of human rights and
humanitarian law.




Peter Neussl

24 August 2007


Overcoming Euroskepticism:
European Integration
through the protection of
human rights, peoples and
minority rights



e-mail: neussl@un.org
CEIS working papers cover the extended discussion on European integration themes as they relate to the entire region of
South-East Europe, including country-specific as well as cross-cutting issues. Any reproduction, publication and reprint in
the form of a different publication, whether printed or produced electronically, in whole or in part, is permitted only with
the explicit written authorization of the CEIS or the author(s). The views expressed in this paper do not necessarily reflect
those of the CEIS. This paper can be downloaded without charge from www.ceis-eu.org.

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Working Paper Series No 5
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August 2007


Introduction

We find ourselves presently at a crossroads from where the European integration process may
proceed and reach a constitutional level including a large number of state-building elements, or
where Euroskepticism wins and stops such integration, at least for some of the candidate and
potential candidate countries.

The ratification process for the European Constitution reflects this state of affairs. Member states
where Governments made a decision on behalf of their electorate in 2004 and 2005 went ahead
with this new concept.
1
Where citizens were entrusted with this responsibility through a referendum,
the outcome so far is 50:50. While Spain and Luxembourg voted in favour of the Constitution, the
Netherlands and France clearly rejected it. As a result, other countries postponed their decision
2
and
the process of establishing a European Constitution has come to a halt.

At the same time, minorities and population groups have been struggling with the aftermath of the
cold war, in particular in the Western Balkans, where countries are presently in the European
Unions Stabilisation and Association Process (SAp) and on their way to join the European Union
(EU). Some of their populations who have been turned into minorities following internal conflicts
with gross violations of human rights and humanitarian law have yet to find their places within these
countries, allowing them to contribute to true stability in the region.

The author suggests that the strengthening of concepts that represent common European values, may
help citizens find a European identity and to overcome Euroskepticism. These concepts include the
protection of human rights within the European Union, the concept of European citizenship, and
respect for minority and peoples rights.





Citizenship and human rights in the European Union

a) Human rights:

The founding Treaties of the European Communities
3
did not comprise human rights provisions,
primarily because of the essentially economic and commercial objectives they embodied. At the
time, a human rights catalogue did not seem necessary.
4


However, not long after their coming into force, the European Court of Justice (ECJ) adopted the
responsibility to constitutionalise the Treaties,
5
integrating individuals into the legal framework of
the Communities, conferring upon them rights which become part of their legal heritage.
6



1
Austria, Belgium, Cyprus, Estonia, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Malta, Slovakia and Slovenia.
2
The Czech Republic, Denmark, Finland, Ireland, Poland, Portugal, Sweden and the United Kingdom.
3
Treaty establishing the European Coal and Steel Community (1951), Treaty establishing the European Economic Community (1957)
and Treaty establishing the European Atomic Energy Community (1957).
4
Patrick M. Twomey, The European Union: Three Pillars without a Human Rights Foundation, in David OKeefe and Patrick M.
Twomey (ed.), Legal Issues of the Maastricht Treaty (London: Chancery Law Publishing, 1994), pp. 121-22.
5
Joseph H.H. Weiler, Limportance fondamentale de la citoyennet europenne, in Alfonso Mattera (ed.), La Confrence
intergouvernementale sur lUnion europenne : rpondre aux dfis du XXIme sicle, (Paris : Clment Juglar, 1996).
6
Case 26/62, van Gend en Loos (1963), ECR 1. Whereas the Court in its earlier constitutional jurisprudence never expressly
mentioned the constitutional character of the Community Treaties and therefore its role as a Constitutional Court, it did so both in its
judgment The Greens (Case 294/83, Parti cologiste Les Verts, European Parliament, (1986) 13339, at 13365, para. 23) and in its
Opinion 1/91 about the European Economic Area where it referred to the Treaties as the basic constitutional charter (Opinion 1/91,
First EEA Case, (1991) ECR 6079).



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The Court has as well read an unwritten catalogue of human rights into Community law, which has
been described as the most striking contribution the Court has made to the development of a
Constitution of Europe.
7
Most of these rights have been linked to the free movement of factors of
production and property rights.

However, until very recently, traditional constitutional rights, such as citizenship or human rights,
even in an embryonic form, had not been recognised by the Treaties.
8
This changed only when the
Treaty on European Union of 1992 (the Maastricht Treaty establishing the European Union) created a
European Citizenship and added a reference to fundamental rights.
9
The Amsterdam Treaty of 1999
clarified that (t)he Union is founded on the principles of liberty, democracy, respect for human rights
and fundamental freedoms, and the rule of law, principles which are common to the Member States.
10


As a next step, the European Charter on Fundamental rights was created.
11
It sets out a whole range of
civil, political, economic and social rights of European citizens and all persons resident in the EU and
is based on fundamental rights and freedoms recognised by the European Convention on Human
Rights, the constitutional traditions of the EU Member States, the Council of Europes Social Charter,
the Community Charter of Fundamental Social Rights of Workers and other international conventions
to which the European Union or its Member States are parties. In its scope the Charter would go even
beyond the civil and political rights of the European Convention on Human Rights and include a right
to good administration, workers social rights, personal data protection and bio-ethics. However, up to
now the European Charter has not come into force either as an independent instrument or as part II of
the Treaty establishing a Constitution for Europe.

b) European citizenship

Up to now, European citizenship depends on citizenship in a member state. According to Article 17 of
the consolidated version of the Treaty establishing the European Community, every citizen holding
the nationality of a Member State shall be a citizen of the Union. This does not correspond with the
autonomous character of most community concepts like the free movement of persons.
12
The reason
for this anomaly
13
lies in the sensitive sovereignty issue of nationality.

To overcome this unsatisfactory situation it is necessary to propose a solution that leaves the
nationality issue untouched. Two thoughts have to be combined in this respect: The abstract
relationship of citizenship and nationality including the possibility of detaching one from the other,
and to find a common basis upon which European citizenship can be built in a way that is acceptable
for the Member States.
14




7
G. Federico Mancini, The making of a Constitution for Europe, Common Market Law Review, 26 (1989) 4, p. 585
and p. 611.
8
Mancini, op. cit., p. 596.
9
Article 6 paragraph 2 of the consolidated version of the present EU Treaty and Article F paragraph 2 of the Maastricht
Treaty: The Union shall respect fundamental rights as guaranteed by the European Convention for the Protection of
Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member
States, as general principles of Community law.
10
Article 6 paragraph 1 of consolidated version of the present EU Treaty and Article 1.8.a. of the Amsterdam Treaty
11
The Charter was signed and proclaimed by the Presidents of the European Parliament, the Council and the Commission
at the European Council meeting in Nice on 7 December 2000.
12
Jessurun DOliveira, European Citizenship, its Meaning, its Potential, in Joerg Monar, Werner Ungerer, Wolfgang
Wessels (eds.), The Maastricht Treaty on European Union Legal Complexity and Political Dynamic (Brussels:
European Interuniversity Press, 1993), pp. 8185.
13
David OKeeffe, Union Citizenship, in David OKeefe and Patrick M. Twomey (ed.), Legal Issues of the Maastricht
Treaty (London: Chancery Law Publishing, 1993), p. 87.
14
Peter Neussl, European Citizenship and Human Rights, Legal Issues of European Integration, (The Hague: Kluwer
Law International, 1997/2), p. 50.

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August 2007


When looking at the Greek roots of citizenship and Aristotles three key elements of citizenship,
15
this
seems to be possible. We can therefore ask the question whether a basis of common values exists and
whether a reciprocal relationship between the individual and the European Union can be established.

Moreover, and regarding the generally weakened position of the Nation State in the modern world
following the end of the cold war, a world characterized by mass migration and increased economic
and political interrelation, especially in the form of the European Union, it could also be questioned if
citizenship has necessarily to be understood as linked to a traditional nation state, and therefore to the
nationality of any particular state. Nobody would really doubt that a relation comprising civil, political
and social elements between the individual and the European Union has already been established, so
that the Europeans know, at least in part, one anothers character.
16


It is of course difficult to verify the precise degree of objective and subjective common values, which
are self-bred by the Community. However, it seems to be clear that the Member States, and, to the
extent that they could use their democratic tools, their citizens have also been in conformity with the
degree of integration reached and therefore also with the common values resulting from this process.

The supranational project of the European Union could also be regarded in the light of Kantian moral
philosophy that regards humans as rational creatures, able to act independently by following their
conscience, and provides for the possibility of abolishing perceptions and preoccupations based on
nationality.
17
The European Union could for example provide for an ideal framework to influence
actual social problems like racism, intolerance or xenophobia.
18


c) Human rights and citizenship an interactive European concept

It is my personal conviction that a European demos could be based on the existence and effective
protection of fundamental rights and values which unify the citizens and Member States of the
European Union and which are reflected in their respective constitutional systems. These
constitutional systems include the European Convention on Human Rights and the transfer of
sovereignty to the European Court of Human Rights when it comes to civil and political rights
contained therein.

A solution for the effective and comprehensive protection of fundamental rights within the European
Union has yet to be found. Despite positive developments as indicated above, individuals living in the
Union do not have the ability to file a suit against violations of their fundamental rights by institutions
of the European Union before the European Court of Justice. Only this last step, namely the possibility
to effectively claim the implementation of these rights, could form the basis of a demos for an
independent European citizenship.


15
Aristotle, Politics, translated by Ernest Barker, (Oxford: Clarendon, 1948) and D. Oliver and D. Heater, The Foundations of
Citizenship, (Hemel Hempstead: Harvester Wheatsheaf, 1994), p. 11: The nature of citizenship is a question which is often
disputed: there is no general agreement on a single definition (Aristotle, 1274b). Citizens are all who share in the civic life of ruling
and being ruled in turn (Aristotle, 1283b). The third element, namely the rotating system of rule, presupposes a state small enough
for the citizens to know one anothers character (Aristotle, 1326b).
16
See footnote 15.
17
The author does not agree with the German Federal Constitutional Courts No Demos Thesis established in its Decision on the
Maastricht treaty (BverfGE 89, 155) and according to which neither subjective conditions, like shared collective identity, nor
objective conditions, such as a common language or history of culture exist which would justify the establishment of a European
people or nation. See also: Joseph H.H. Weiler, The State ber alles, Demos, Telos and the German Maastricht Decision, in Ole
Due, Markus Lutter and Jrgen Schwarze (eds.), Festschrift fr Ulrich Everling (Baden-Baden: Nomos, 1995), vol. 2, p. 1651 and p.
1656.
18
A valuable contribution to the fight against racism and xenophobia within the European Union has been made through the creation of
the European Monitoring Centre against Racism and Xenophobia (EUMC, Council Regulation (EC) No 1035/97 of 2 June 1997 (OJ L
151, 10 June 1997), amended by Council Regulation (EC) No 1652/2003 of 18 June 2003). The EUMC was transferred into a
European Union Agency for Fundamental Rights (FRA) through Council Regulation (EC) No 168/2007 of 15 February 2007.
Website: http://www.eumc.at/fra/index.php.



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One possibility, which has been largely discussed in the past
19
and which has been eventually included
in the draft Constitution,
20
would be the Unions accession to the European Convention on Human
Rights. In this case, the European Court of Human Rights would be competent also to decide on
individual applications directed against European Union institutions, which would be a contribution to
the establishment of a coherent and effective human rights protection system in Europe. This could be
further strengthen if the implementation of decisions of the European Court of Human Rights would
be supported by measures taken by the European Union. The enforcement of decisions of the
European Court of Human Rights has been one of the weak points of the human rights protection
system established under the Council of Europe regime, in particular when it comes to its new member
states.

For this system to work, clear procedures will be needed including rules on respective competencies
between the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR). One
possibility would be a referral system by the ECJ to the ECHR accompanied by an advisory opinion of
an Advocate General including the EU law background, which may facilitate the examining of the
case by judges of the ECHR.

This could lead to a new European dialogue going beyond the human rights dialogue between the
ECJ and national courts,
21
and where specificities of European Union (human rights) law and
traditions emanating from the ECHR jurisprudence could be combined to the benefit of European
citizens.


Minorities and peoples rights

An independent European citizenship, detached from the traditional nationality concept and based on a
strong human rights protection within the European Union context, would allow protections for
minorities and peoples who find themselves lost after the end of the cold war and trapped in internal
conflicts and wars triggered by the loss of strong nation state concepts supported by their respective
block.

As experienced in the former Yugoslavia and in particular within the context of Bosnia and
Herzegovina (Bosnia), traditional human rights protection systems may not suffice to overcome the
sad consequences of such conflicts and wars, including genocide, gross human rights violations and
internal displacement.

The General Framework Agreement for Peace (GFAP) following the Bosnian war in 1995 provided
for multiple tools in this respect, including international military components, a State Constitution, a
Human Rights Court (the Human Rights Chamber) and the Office of the High Representative for
Bosnia and Herzegovina with ultimate powers to enforce the civilian implementation of the Peace
Agreement.

It soon became very clear that the Republika Srpska and the Federation of Bosnia and Herzegovina,
the two Entities set up after ethnic cleansing and the displacement of Bosniaks and Croats from the
Republika Srpska and of Serbs from the territory of the Federation, would not allow an efficient
protection of those who wished to return and who have become minorities in their home areas.

19
See amongst others Hans Christian Krger and Jrg Polakiewicz, Proposals for a Coherent Human Rights Protection System in
Europe/The European Convention on Human Rights and the EU Charter of Fundamental Rights, Human Rights Law Journal, 22
(2001) 14, pp. 1-13.
20
Article I-9.2 of the drat EU Constitution.
21
As in the early constitutional rulings, the human rights jurisprudence of the ECJ emanated from a dialogue of national courts and the
European Court of Justice in preliminary ruling requests of national courts (Article 234 of the consolidated version of the present
Treaty establishing the European Community, previously Article 177): Comment made by Prof. David OKeeffe in his lecture about
Judicial Remedies, held at the College of Europe, Brugge, in the winter semester of the academic year 1996/1997.

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Even though the individual human rights protection system established by the Human Rights Chamber
has been extremely elaborate, it could not overcome the divide in both Entities,
22
which has been even
confirmed at the Entities constitutional level.
23
This resulted in discriminatory treatment of these new
minorities in both Entities by administrative and judicial authorities, which were now composed of the
new majority groups.

The Constitutional Court of Bosnia and Herzegovina in 1998 declared unconstitutional those
provisions of the Entities constitutions that excluded one or the other people from being constituent on
their respective territories and related discriminatory provisions, inter alia, on language or religion.
24

According to the 1995 State Constitution annexed to the GFAP Bosniacs, Croats and Serbs
(along with Others) are the constituent peoples of Bosnia and Herzegovina.

The then High Representative for Bosnia and Herzegovina, Wolfgang Petritsch, started in 2000 a
process to facilitate the implementation of the Constituent Peoples Decision in both Entities. The
work of Entities Constitutional Commissions composed of Bosniacs, Croats, Serbs and Others (e.g.,
Jews, Roma) preparing the respective constitutional changes was finalised in negotiations under the
auspices of the High Representative to solve key issues such as vital interest protection systems or the
representation of constituent peoples and Others in public institutions. On 27 March 2002, the so-
called MrakovicaSarajevo Agreement on the necessary constitutional changes was signed by key
political players.
25


One of the key elements of the constitutional changes was the establishment of a proportional
representation system for all constituent peoples in both Entities, at the Government and also
parliamentary level, and an obligation to achieve this goal in courts and administrative authorities over
a certain period of time. The other key element was a vital interest protection system, which excluded
the discrimination of peoples in key areas throughout the legislative process. Unfortunately, and with
the hand-over to another High Representative,
26
not all changes have been followed through with the
national and local authorities, and some of the fruits of the agreement could not be harvested. It
remains to be seen whether the process of constitutional change at the State level will help creating
dynamics towards a full implementation of the MrakovicaSarajevo Agreement while correcting or
overcoming shortcomings such as the weak position of Others.
27


This experience could be an important lesson for the European Union, with a view to the EUs
Western Balkans Stabilisation and Association Process and the accession of countries with similar
histories or strong discriminatory tendencies towards certain ethnic groups or populations.

The existence of the 1994 (Council of Europe) Framework Convention for the Protection of National
Minorities as one of the instruments applicable by the Human Rights Chamber in its binding decisions
for the State and Entity authorities in Bosnia could not overcome structural deficits of minority
peoples interests.


22
Peter Neussl, Bosnia and Herzegovina Still Far From the Rule of Law Basic Facts and Landmark Decisions of the Human Rights
Chamber, Human Rights Law Journal, 20 (1999) 7-11, pp. 290-302.
23
The Constitution of the Republika Srpska in its original form (1992) stated: Republika Srpska shall be the State of the Serb people
and of all its citizens. The Constitution of the Federation in its original form (1994) stated: Bosniacs and Croats, as constituent
peoples, along with Others, of the Federation of Bosnia and Herzegovina . (in 1994 it was clear that Serbs would not be
included in the term of Others).
24
Peter Neussl, Implementation of the Constitutional Court Decision on the Constituent Peoples in Bosnia and Herzegovina, Human
Rights Law Journal, 24 (2003) 9-12, pp. 309-21. See full text in Human Rights Law Journal, 22 (2001) 1-4, pp. 127-46.
25
One of the Chambers of the Federation Parliament included all elements of the Agreement and the Parliament of Republika Srpska
included all but two less important provisions. The remainder has been included by Decisions of the High Representative of 19 April
2002 (Official Gazette of the Federation of Bosnia and Herzegovina, no. 16/02 of 28 April 2002 and Official Gazette of Republika
Srpska, no. 21/02 of 25 April 2002).
26
In May 2002 Wolfgang Petritsch handed over office to Paddy Ashdown, former leader of the British Liberal Democratic Party.
27
See also Resolution of the Council of Europe Parliamentary Assembly 1513 of 29 June 2006. Unfortunately, this was from the start of
the negotiations one of the points that Bosniacs, Croats and Serbs agreed on.



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Such peoples and citizens rights could be protected within the EU and in particular its regional
dimensions in a way that is detached from traditional nation or state structures and traditions.
Elements can already be found in the EU Charter of Fundamental Rights, such as a strong provision
on non-discrimination linked to the respect of cultural, religious and linguistic diversity.
28


Another element could be to strengthen the European regions and increase their autonomy in
defending their respective values and traditions. The European Union Committee of Regions could be
tasked with elaborating a catalogue of such values and traditions and the new European Union
Fundamental Rights Agency
29
could equally play a decisive role in supervising the protection of
peoples and minority rights within the context of the EU.



Conclusion

The accession of the EU to the European Convention on Human Rights could both strengthen the
human rights protection regime in Europe as a whole and help form the demos necessary to host
European citizens. In my view there is no way around the need for the EU and its Member States to
acknowledge human rights and citizenship as an interactive European concept.
30


At the same time, and responding to post cold war hostilities amongst ethnic groups and peoples, the
effective representation of their interest within a European (constitutional) context has to be
strengthened. These steps may support the European integration process, and help European citizens
overcome Euroskepticism and accept the concept of a European Constitution.

It may also help overcome remaining hostilities between peoples and minorities in the Western
Balkans and resolve them within a European context which is less focused on sovereignty and
nationality issues.
31












Peter Neussl has worked on Internally Displaced Persons and Protection for the UN Office for the Coordination of
Humanitarian Affairs in a number of countries since 2002. After his human rights doctorate and the European law Master
in Bruges he worked for the EU in Bruges and eastern European countries, the Council of Europe in Strasbourg and
Bosnia and Herzegovina and the Office for the High Representative in Bosnia. He regularly publishes articles in his fields
of work. Any views expressed by the author are private in nature and not binding for the UN.





28
Articles II-81 and II-82 of the draft EU Constitution.
29
See footnote 18.
30
Peter Neussl, European Citizenship and Human Rights: An interactive European Concept, Legal Issues of European Integration
(The Hague: Kluwer Law International, 1997/2), p. 47.
31
Peter Neussl is working for the UN Office for the Coordination of Humanitarian Affairs. Any views expressed by the author are
private in nature and not binding for the UN.

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The publication of this working paper series was financially
supported by the Geneva Center for the Democratic Control
of Armed Forces (DCAF). The opinions expressed in this
brief do not necessarily reflect the official views of DCAF.










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