Rebranding plan for failed EU constitution
By Nicholas Watt,
Guardian Unlimited, European editor
Monday May 29, 2006
European leaders may embark on one of the EU's greatest rebranding exercises by changing the name of the European constitution to "basic law".
Today is the first anniversary of the rejection of the constitution by French voters, and support is growing for a German plan to revive the measure with a name change.
Erkki Tuomioja, the Finnish foreign minister whose country takes over the EU's rotating presidency in July, said: "Everybody agrees it was a mistake to call it a constitution, so that would be a very sensible change if that were needed."
The name change is likely to be attacked by Eurosceptics who will argue that European leaders should accept that the constitution was emphatically rejected by French voters. Three days later, voters in the Netherlands also rejected it.
Supporters of the rebranding said that changing the name was designed to acknowledge the concerns of voters who felt uncomfortable with grand talk of a constitution. Frank-Walter Steinmeier, the German foreign minister, said: "We in Germany live with a 'basic law' which does not carry the title 'constitution' but has the same legal quality. It's a possible starting point."
Mr Steinmeier was at a meeting of EU foreign ministers in Austria. The ministers agreed the "period of reflection" on the constitution would have to be extended for at least another year until France has elected a new president.
Jose Manuel Barroso, the president of the European commission, said: "Our position is that we should keep the constitutional issue alive but avoid any kind of paralysis."
European leaders know the EU cannot function indefinitely on current rules. The constitution would have linked a country's voting strength to the size of its population and reformed the system of rotating presidencies. Mr Steinmeier believes the rebranded constitution would retain these changes.
The talks came as a poll found that a majority of respondents in France and the Netherlands still oppose the constitution. According to the poll, more than half of French voters (55.5%) would vote no if the referendum were held again, compared with 54.5% last year; in the Netherlands, nearly two-thirds would vote no (65%), compared with 61.5% last year.
Neil O'Brien, director of the Eurosceptic Open Europe group which commissioned the survey, said: "The poll suggests that if EU leaders continue their current attempts to side-step the no votes and implement parts of the constitution by the back door, they will further antagonise voters."
Tuesday, January 1, 2008
German Citizens Have Only Positive, Conditional Civil Rights Granted By Government; Not Negative Natural Rights Recognized By Government
German High Court Has More Power Over Legislature, Grimm Says
Reported By Elizabeth Katz
Posted March 9, 2006
Although the U.S. Supreme Court and the Federal Constitutional Court of Germany follow many similar principles, they differ in that the U.S. court determines what Congress may do, while the German court dictates what Parliament must do, said Humboldt University law professor Dieter Grimm at a lecture co-sponsored by the Law School and the American Constitution Society March 1.
Grimm, who is also the director of the Institute for Advanced Study in Berlin, served as a justice of the Federal Constitutional Court of Germany from 1987 to 1999. In his talk he addressed the historical and ideological differences between the legal systems in the United States and Germany.
Both courts had similar findings regarding whether broadcasters are obligated to give reply time to persons who have been attacked on station programs, Grimm explained, noting that the cases reveal key differences among the two systems. The Supreme Court found that because the purpose of the First Amendment is to create an educated public that can conduct its own affairs, the rights of the viewers and listeners are paramount to the rights of the broadcasters.
The German decision used very similar language and “even went so far as to call freedom of broadcasting a serving freedom, namely a freedom that serves the free formation of opinions of the individual and society as a whole as well.” But the courts came to different conclusions. The Supreme Court found that Congress had the power to regulate broadcasting, while the German court determined that Parliament must regulate broadcasting.
The deviation may be seen even more clearly in pairing the first German abortion case and the U.S. DeShaney case, Grimm said. In 1975 the German court determined the state’s obligation to furnish the protection of free rights is comprehensive and includes the protection and promotion of developing life, such as fetuses.
In contrast, in 1989 the Supreme Court ruled in DeShaney that nothing in the due process clause requires the state to protect life, liberty, and property against the action of private actors. Instead, the purpose of the 14th Amendment is just to protect people from the state. In other words, the U.S. Bill of Rights only has negative rights, which restrict the government from encroaching on individuals’ fundamental rights, whereas Germany also has positive rights, which requires the government to safeguard the rights of the people.
“‘What is the explanation for this difference?’ is, I think, the question to be asked,” Grimm said.
The answer is rooted in the ways fundamental rights developed historically, he explained. Although both American and European laws are rooted in enlightenment theory, they diverged in the “circumstances to which the bills or rights applied at the time of their origin.”
In the late 18th century, the American colonies were under English law, which was considered very liberal at the time. When Americans felt their fundamental rights regarding taxation were being violated, they learned that under British rule their fundamental rights were not supreme because “supremacy belonged to parliament.”
One purpose of the American Revolution, therefore, was to strengthen and protect the people’s fundamental rights. Consequently, fundamental rights “could from the very beginning be negative rights” that served primarily to protect individuals from the government.
In contrast, although Germany did not have a revolution during the same period, the monarchs of many German states granted the enactment of constitutions with bills of rights to “attempt self-preservation of the dynasty.” The old feudal laws remained in place and could not be overridden by the new constitutions. The bills of rights “were interpreted as… obligations of the legislature to do what these fundamental rights promised, reform the old feudal systems and turn them into a legal order.” The reforms largely failed, though, because they had to be approved by a majority vote in parliament in addition to receiving the consent of the monarch and the non-elected chamber.
The inclusion of positive rights in German law can be traced to the fact that European constitutions, unlike the U.S. Constitution, did not establish an entirely new political entity because the nation-state existed before the constitutions emerged. This meant “they never changed the tradition of the state,” and part of this saved tradition, especially in Germany, was that “the state always retained the role of being the representative of the higher aspirations of society.” Thus, Grimm said he views the embracement of the duty to protect in 1975 as a “revival of tradition,” rather than as something new.
This revival began and was rooted in the 1958 Lüth decision, which Grimm considers the landmark case in German constitutional history. The case, which originated in civil law, was sparked by an individual who advocated for a boycott against movie theaters that were showing a movie directed by a man who had made anti-Semitic films during the Nazi era. The movie companies won in civil court due to a German civil code that legislates that if someone causes damage to another party in an immoral way, he is liable for the damages. After the civil decision, the boycott advocate appealed to the Constitutional Court on the grounds that the state had an obligation to protect his freedom of speech. Prior to this case, civil rights were considered vertical, meaning they only applied to the government’s encroachment on civil rights.“So the question that was at stake was the question, ‘Is there horizontal application of fundamental rights?’”
The court determined that fundamental rights are both subjective rights against government intrusion and “objective values.” Values that society finds extremely important “are entrenched in the constitution” and are not limited to public law.
“The solution of the court is that wherever the application of a private law affects in a limiting way a fundamental right, this fundamental right has to be taken into account in the interpretation and application of that law,” Grimm said.
The sole addressee of fundamental rights remains the state, but the state has to uphold them in private law through its courts. Lüth was the first in a constructive line of jurisprudence that culminated in the duty to protect.
“It was… the long forgotten other side of fundamental rights,” Grimm said. The state draws a lot of its legitimacy from how well it protects citizens from both vertical and horizontal risks to their fundamental rights, according to Grimm, and it accomplishes this protection through legislation.
“The purpose is not to limit liberty and freedom, …to create an overall freedom,” he said, noting that curtailing one person’s freedom may be necessary to enable another person to make use of his freedom. “The ‘if’ decision is decided by the constitution… The ‘how’ question is left to the legislature.”
Although some might see the interaction between the German court and legislature as a problematic separation of powers, Grimm dismissed such concerns because the legislature should not be free to not comply with court decisions. And, the court’s justices realize that forcing legislative acts increases their vulnerability, so self-interest keeps them from being too aggressive.
“Legislature loses the power to be inactive… or it loses the power when it legislates to grossly disadvantage one constitutionally protected interest in favor of another,” Grimm said.
Reported By Elizabeth Katz
Posted March 9, 2006
Although the U.S. Supreme Court and the Federal Constitutional Court of Germany follow many similar principles, they differ in that the U.S. court determines what Congress may do, while the German court dictates what Parliament must do, said Humboldt University law professor Dieter Grimm at a lecture co-sponsored by the Law School and the American Constitution Society March 1.
Grimm, who is also the director of the Institute for Advanced Study in Berlin, served as a justice of the Federal Constitutional Court of Germany from 1987 to 1999. In his talk he addressed the historical and ideological differences between the legal systems in the United States and Germany.
Both courts had similar findings regarding whether broadcasters are obligated to give reply time to persons who have been attacked on station programs, Grimm explained, noting that the cases reveal key differences among the two systems. The Supreme Court found that because the purpose of the First Amendment is to create an educated public that can conduct its own affairs, the rights of the viewers and listeners are paramount to the rights of the broadcasters.
The German decision used very similar language and “even went so far as to call freedom of broadcasting a serving freedom, namely a freedom that serves the free formation of opinions of the individual and society as a whole as well.” But the courts came to different conclusions. The Supreme Court found that Congress had the power to regulate broadcasting, while the German court determined that Parliament must regulate broadcasting.
The deviation may be seen even more clearly in pairing the first German abortion case and the U.S. DeShaney case, Grimm said. In 1975 the German court determined the state’s obligation to furnish the protection of free rights is comprehensive and includes the protection and promotion of developing life, such as fetuses.
In contrast, in 1989 the Supreme Court ruled in DeShaney that nothing in the due process clause requires the state to protect life, liberty, and property against the action of private actors. Instead, the purpose of the 14th Amendment is just to protect people from the state. In other words, the U.S. Bill of Rights only has negative rights, which restrict the government from encroaching on individuals’ fundamental rights, whereas Germany also has positive rights, which requires the government to safeguard the rights of the people.
“‘What is the explanation for this difference?’ is, I think, the question to be asked,” Grimm said.
The answer is rooted in the ways fundamental rights developed historically, he explained. Although both American and European laws are rooted in enlightenment theory, they diverged in the “circumstances to which the bills or rights applied at the time of their origin.”
In the late 18th century, the American colonies were under English law, which was considered very liberal at the time. When Americans felt their fundamental rights regarding taxation were being violated, they learned that under British rule their fundamental rights were not supreme because “supremacy belonged to parliament.”
One purpose of the American Revolution, therefore, was to strengthen and protect the people’s fundamental rights. Consequently, fundamental rights “could from the very beginning be negative rights” that served primarily to protect individuals from the government.
In contrast, although Germany did not have a revolution during the same period, the monarchs of many German states granted the enactment of constitutions with bills of rights to “attempt self-preservation of the dynasty.” The old feudal laws remained in place and could not be overridden by the new constitutions. The bills of rights “were interpreted as… obligations of the legislature to do what these fundamental rights promised, reform the old feudal systems and turn them into a legal order.” The reforms largely failed, though, because they had to be approved by a majority vote in parliament in addition to receiving the consent of the monarch and the non-elected chamber.
The inclusion of positive rights in German law can be traced to the fact that European constitutions, unlike the U.S. Constitution, did not establish an entirely new political entity because the nation-state existed before the constitutions emerged. This meant “they never changed the tradition of the state,” and part of this saved tradition, especially in Germany, was that “the state always retained the role of being the representative of the higher aspirations of society.” Thus, Grimm said he views the embracement of the duty to protect in 1975 as a “revival of tradition,” rather than as something new.
This revival began and was rooted in the 1958 Lüth decision, which Grimm considers the landmark case in German constitutional history. The case, which originated in civil law, was sparked by an individual who advocated for a boycott against movie theaters that were showing a movie directed by a man who had made anti-Semitic films during the Nazi era. The movie companies won in civil court due to a German civil code that legislates that if someone causes damage to another party in an immoral way, he is liable for the damages. After the civil decision, the boycott advocate appealed to the Constitutional Court on the grounds that the state had an obligation to protect his freedom of speech. Prior to this case, civil rights were considered vertical, meaning they only applied to the government’s encroachment on civil rights.“So the question that was at stake was the question, ‘Is there horizontal application of fundamental rights?’”
The court determined that fundamental rights are both subjective rights against government intrusion and “objective values.” Values that society finds extremely important “are entrenched in the constitution” and are not limited to public law.
“The solution of the court is that wherever the application of a private law affects in a limiting way a fundamental right, this fundamental right has to be taken into account in the interpretation and application of that law,” Grimm said.
The sole addressee of fundamental rights remains the state, but the state has to uphold them in private law through its courts. Lüth was the first in a constructive line of jurisprudence that culminated in the duty to protect.
“It was… the long forgotten other side of fundamental rights,” Grimm said. The state draws a lot of its legitimacy from how well it protects citizens from both vertical and horizontal risks to their fundamental rights, according to Grimm, and it accomplishes this protection through legislation.
“The purpose is not to limit liberty and freedom, …to create an overall freedom,” he said, noting that curtailing one person’s freedom may be necessary to enable another person to make use of his freedom. “The ‘if’ decision is decided by the constitution… The ‘how’ question is left to the legislature.”
Although some might see the interaction between the German court and legislature as a problematic separation of powers, Grimm dismissed such concerns because the legislature should not be free to not comply with court decisions. And, the court’s justices realize that forcing legislative acts increases their vulnerability, so self-interest keeps them from being too aggressive.
“Legislature loses the power to be inactive… or it loses the power when it legislates to grossly disadvantage one constitutionally protected interest in favor of another,” Grimm said.
British Individualists Endeavor to Expose the Undeniable Truth About the EU Constitution: Loss of Fundamental Rights and Freedoms
Exposing the EU Constitution
The EU Constitution will significantly alter the European Union. If adopted, it will move the EU even further away from our vision of a free trading, decentralised, deregulated and democratic Europe of nation-states.
Click here to read the Bruges Group's in-depth analysis of the EU Constitution.
It will:
Compound the EU's economic dislocation by encoding in law the social-market economic model responsible for the continent's low growth and high unemployment.
Article 14 will allow the EU to standardise the employment and social policies of member states. Article 7 incorporates into EU law the Charter of Fundamental Rights (PDF). This will add new burdens onto British business.
Ensure that National Parliaments lose significant powers to the EU institutions. The right of member states to stop damaging EU legislation will end, as Qualified Majority Voting (QMV) will be extended into 40 new areas. The Constitution may even allow for the national veto to be entirely abolished. In particular, Article 24.4 (the passerelle clause) and Article 17 (the flexibility clause) will allow the European Council to extend QMV and the EU's powers.
Expand the Union's powers into Justice and Home Affairs. Article 158 gives the EU power over external border controls and internal security. Article 170 allows the EU with powers to standardise civil law. Articles 171 - 175 allow for the standardisation of criminal laws and procedure. 176 - 178 will give the EU powers to co-ordinate policing.
Develop a common EU foreign and Security Policy. Article 27 will create an EU Minister for Foreign Affairs who "shall conduct the Union's common foreign and security policy".
Make the EU institutions the UK's real government. Article 10 gives primacy to EU law. Articles 11, 12 & 13 will give the EU the right to forbid member states from making laws in almost all areas, handing instead even more power to the remote, unaccountable and undemocratic EU institutions.
The battle to incorporate Britain into a greatly centralised European Union has begun.
Click here to read the Treaty establishing a Constitution for the EU (PDF)
Click here to read about the EU Constitution - in their own words
Download our quick guide leaflet
The EU Constitution: A threat to jobs and democracy [PDF]
UNESCO Cultural Diversity Convention Will Diminish Economic Freedom
Cultural Diversity and Freedom at Risk
By Janice A. Smith and Helle Dale
October 17, 2005
WebMemo #885
President George W. Bush’s monumental decision to rejoin the United Nations Educational, Scientific, and Cultural Organization (UNESCO) in 2003 caught both conservatives and liberals by surprise. After all, the U.S. had pulled out of that organization in 1984 because it had become bloated and grossly over-politicized. At every turn, it espoused policies that ran contrary to UNESCO’s founding mission to advance freedom, such as advocating a “new world information order” that in the end would curtail freedom of expression and of the press.
Nevertheless, UNESCO had reformed considerably under Director-General Matsuura, President Bush argued upon rejoining, and it could be a vital forum for helping the U.S. combat the global tide of intolerance and oppression embodied by the Taliban. Many Americans swallowed their residual distaste for the organization to give it the benefit of doubt. Indeed, the Heritage Foundation and more than 50 other organizations accepted spots on the reconstituted U.S.-UNESCO National Commission to become more engaged in UNESCO’s efforts to spread freedom, understanding, education for all, and tolerance.
This week, however, all that hope and all that multilateral goodwill—not to mention all the millions that the U.S. pays each year as UNESCO’s biggest benefactor—could be rebuffed. Despite the Bush Administration’s best efforts, other member states are expected to adopt a “cultural diversity” convention that regrettably is more about trade protectionism and cultural prejudice than cultural diversity and understanding.[1]
Instead of promoting the right of people to learn about other cultures—the “free exchange of ideas and knowledge” called for in UNESCO’s constitution—the draft convention actually will make it possible for countries to limit their citizens’ access to foreign goods, foods, services, art, and traditions that express different cultures so well.
Article 8 of the current draft, for example, would allow parties to the convention to take “all appropriate measures to protect and preserve cultural expressions,” which is defined in Article 3 as “expressions that result from the creativity of individuals, groups and societies, and that have cultural content.”
The State Department rightly argues that such definitions are so vague that they could be misinterpreted to enable “impermissible new barriers to trade in goods, services, or agricultural products.”[2] Such vagueness, combined with an authority to “protect,” invites abuse, particularly when it comes to trade. It is easy to imagine certain countries citing the convention to justify trade restrictions against certain books written in foreign languages, or even foreign wines, because they pose a threat to local “culture.”
Imagine how much bolder such a convention will make countries like Burma, China, Iran, or Cuba, all of which are notorious for restricting freedoms, especially freedom of speech and of the press. China already forces Internet providers like Microsoft’s MSN to restrict access to the words “freedom” and “democracy” if they want to do business there.[3] Oppressive Islamic regimes that reject Western values, arts, and humanities could use the convention to restrict all sorts of goods that they consider perverse. In Iran, teens have been arrested for dancing,[4] and recently, the regime announced that women wearing their veils “improperly” would be “treated” like those who have no veil at all in public.[5] Iran already goes to great lengths to "protect and preserve" its oppressive definition of Iranian cultural expressions.
Those who work diligently to bring attention to human rights abuses and trade protectionism should be concerned.
There already are concerns in Washington that some countries are trying to rush this convention through to use it against the United States at the upcoming World Trade Organization summit in Doha. That could explain why the U.S. is finding it difficult to modify Article 21, which obligates countries to “promote the principles and objectives of the Convention in other international forums.” And it could explain why the convention also mandates that countries not subordinate it to other treaties.
The draft also calls for establishing an “International Fund for Cultural Diversity.” Never mind that that is what UNESCO was supposed to be in the first place. The fund would be financed in part by contributions taken from the general UNESCO budget—of which the United States pays 22 percent. If all these countries are so enamored with this convention, don’t they expect there to be enough voluntary contributions to cover whatever this fund is supposed to do? No nation should be required to support a treaty that it has not ratified. If the draft convention is not reworded to remove all objectionable language, the U.S. should withhold the portion of its UNESCO dues that would go to support this fund.
Sadly, even our democratic allies support this deceptive convention that is likely to result in the suppression of free trade and political rights. France, UNESCO’s host country, sees the convention as a way to protect its wine and film industries from Californian competition. No surprises there. What is surprising is that Britain—which had pulled out of UNESCO back in 1984 over such misguided policies—appears ready to sign on, most likely because it now holds the rotating presidency of the European Union and wants to go along to get along. It also views the convention as merely a political statement.
The Administration is right to fight this, and it will be right to walk away from the convention next week if others adopt it. Once such language is a part of the body of international law, it will be abused by those opposed to free markets, free speech, and freedom. The United States should not be willing to take that risk.
Janice A. Smith is Special Assistant to the Vice President in, and Helle Dale is Deputy Director of, the Kathryn and Shelby Collum Davis Institute for International Studies at The Heritage Foundation.
[1] See http://portal.unesco.org/culture/en/file_download.php/2962532f35a06baebb199d30ce52956233C23_Eng.pdf.
[2] See http://www.state.gov/r/pa/prs/ps/2005/54690.htm.
[3] Mure Dickie, “Don't mention democracy, Microsoft tells China web users,” Financial Times, June 11, 2005, p. 8.
[4] U.S. Department of State, “Country Reports, Iran,” 2004 Human Rights Reports, February 2005. “In October, in Rasht, Unit 110 of the Law Enforcement Forces, another police unit charged with maintaining Islamic propriety, arrested 8 girls and 12 boys dancing at a party.”
[5] Iran Focus, “Iran’s new Justice Minister vows harsher crackdown on women,” August 20, 2005, at http://www.iranfocus.com/modules/news/article.php?storyid=3388.
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