A Primer on the European Union

Following the Second World War, Europe lay in ruins. The countries of Western Europe, however, rebounded with remarkably energy and began the establishment of institutions that had only been hoped for before the cataclysm of the war. Today, more than fifty years after the end of the Second World War, an array of institutions has arisen that can be bewildering in their numbers and complexity.[1] Many of them, such as the North Atlantic Treaty Organization (NATO), the United Nations (UN), and the European Union (EU) have become familiar names. Yet, to most people, the specific structure and functions of these entities are only partially understood.

This primer attempts to contribute to a better understanding of the EU and its institutions. An ongoing comparison with the Council of Europe (CoE), which is not a body of the EU, aims at further clarifying the nature of the EU and at shedding light on an important institution very much at the heart of European affairs. This primer is especially important in light of the growing influence that EU debates of great moment to human life and the family have on the domestic policies of all nations, including the United States. It has been written by an American primarily for Americans interested in the future of Europe, particularly for those engaged in international pro-life and pro-family work.

A section titled, "How do the EU and the CoE differ?" is included as an appendix. It delves into a variety of basic differences between these two, completely distinct European institutions.

Sources used in compiling this primer, many of them official publications of the EU, were in part selected to make them easily accessible for readers wishing to pursue further study of the EU. Much of this material is available on the Internet and links have been provided wherever possible (though access to them is not guaranteed). In a few cases, excellent sources, such as the Penguin Companion to European Union, were consulted and cited despite the fact that they are only available from various international online booksellers or from the odd American library in possession of a copy. The material and commentary in these books is invaluable, and those wanting to delve more deeply into a study of the EU are strongly encouraged to consider obtaining them. One last note: as a relatively new entity, the EU is developing at a pace of incredible rapidity; consequently, it is extremely important for those pursuing an on-going study of the EU that they continually update their materials and strenuously avoid using outdated sources. For those who are helped by this primer, please check with the Family Research Council regularly as it will periodically be updated and reprinted.

I. IMPORTANT EUROPEAN BODIES THAT PRECEDED THE EU

Within a few years of the close of the Second World War, European countries were moving toward economic and political regeneration. Beginning with the creation of the United Nations in 1945 and the North Atlantic Treaty Organization in 1949, European nations joined together in a number of important ways.

Some of the more important post-War bodies they formed include:

·  The United Nations. The UN (established by Charter on October 24, 1945) was created to be a worldwide, intergovernmental organization devoted to fostering peace and cooperation among nations as well as the protection of fundamental human rights.

·  North Atlantic Treaty Organization. Established by the North Atlantic Treaty on April 4, 1949, the creation of NATO emblematically marked the start of the era of the Cold War with the Soviet Union. While NATO is first and foremost a military treaty for the preservation of peace and freedom, its agreements also span political, economic, scientific, and environmental issues. NATO is a strictly intergovernmental organization in that each of the member countries possesses a full veto power (in other words, unanimity is required in every decision).

·  The Council of Europe. The CoE, created May 5, 1949, was the first international organization to be founded in Europe after the close of the Second World War. Its goals are the strengthening of democracy, the protection of human rights, and the strengthening of the rule of law throughout Europe. Brought into being by the Treaty of London, the CoE began with ten countries and to date numbers 45 member nations, including nearly twenty former Soviet countries.[2]

II. On the Path to the EU: First Steps

As the establishment of the CoE makes clear, European nations were intensely occupied in the work of rebuilding in the aftermath of the Second World War. In the years leading up to the creation of the CoE, many voices called for economic and even political union between the nations of Europe. The establishment of the CoE marked an important step toward that goal, and today it still provides an important forum for discussion and negotiations among the nations of Europe. At the same time, the CoE was in many ways a compromise between those who advocated a supranational arrangement of European nations (that is, those who wanted to create a political entity that in certain respects would stand above individual European nations) and those who wanted to the preserve the autonomy of individual nations.[3] A fuller economic and political union, however, followed swiftly with the creation of the European Coal and Steel Community (ECSC) in 1952 and then in 1958 the European Economic Community (EEC) and the European Atomic Energy Community (Euratom). The present-day EU has its roots in these three "communities," for it is they that set the process of European political and economic unification into motion. Taken together, they are known as the "European Communities" (EC).

A. The Treaty of Paris[4] (signed April 18, 1951; entered into force July 27, 1952) created the European Coal and Steel Community (ECSC), the ECSC High Authority (which was to administer the ECSC) as well as a Special Council of Ministers, a Court of Justice, and a consultative Parliament (whose members were appointed rather than elected by citizens).[5] Under this treaty, signatory nations (initially Belgium, France, the Federal Republic of Germany, Italy, Luxembourg, and the Netherlands) agreed to merge together coal and steel production "by providing a unified market for their coal and steel products, lifting restrictions on imports and exports, and creating a unified labor market."[6] It should not be overlooked that, though apparently limited to economic cooperation, the ECSC also took the production of the raw materials of war out of the hands of any single nation,[7] "making [war] 'not only unthinkable but materially impossible.'"[8]

B. Two further treaties, known as the Rome Treaties (signed March 25, 1957; entered into force January 1, 1958), further expanded economic participation. These treaties created:

·  The European Economic Community (EEC[9]).[10] The goal of the treaty establishing this Community was "to merge separate national markets into a single market that would ensure the free movement of goods, people, capital, and services with a wide range of common economic policies."[11] The treaty also created the institutions that administered the EEC, namely a council as well as a commission.[12]

·  The European Atomic Energy Community (Euratom).[13] This second treaty called for cooperation among Community member states for research on the peaceful uses of nuclear energy. Like the treaty establishing the EEC, the Euratom Treaty also created a council and a commission.

C. Even after all three Communities had been created, their executive institutions remained distinct. Then on April 8, 1965, the so-called "Merger Treaty"[14] was signed, merging the executive institutions of the ECSC, EEC, and Euratom into a single Council and a single Commission. The treaty came into effect on July 1, 1967, at which point the three Communities became known jointly as the European Community (EC). There was no need to merge parliaments or courts because a 1957 convention had already determined that the Court of Justice and the Parliament would be institutions common to the EC.[15]

III. The Formal Creation of the EU

The Treaty on European Union (EU Treaty) [16] (signed February 7, 1992; went into force November 1, 1993) marks one of the most important moments in the history of the EC since the signing of the founding Treaties of Rome and Paris. Strictly speaking, there was no EU prior to the November 1, 1993, but only the European Communities as they had been established and expanded over the years. The EU Treaty incorporated these founding treaties, yet also went far beyond them through the creation of two important "Policies" that far surpassed the level of cooperation between European nations to that point.

The EU Treaty established what it termed a "Three Pillar" system, the first pillar building upon the preceding treaties and the second and third, respectively, establishing the two new "Policies" (more below). At the signing of the 1993 EU Treaty, the EU was composed of 12 member states, though at the time of this writing there are 15 member states and 10 applicant countries due to enter the EU by 2004.

Pillar One: The European Communities and Beyond.

Pillar One incorporated and revised the EC that had been established by the founding treaties. Consequently, the EU Treaty preserved the institutions of the EC, making them the central institutions of the new EU. Yet the EU Treaty also made a variety of changes to them as well. For example, the European Parliament's legislative power was substantially increased. Of great significance as well was the newly created "European citizenship." The EU Treaty also called for what was called Economic and Monetary Union (EMU), which, among other things, called for the creation of the single currency that materialized as the present-day Euro, as well as the creation of a European Central Bank (ECB). Finally, the EU Treaty also added and amended provisions on education and culture, trans-European networks, consumer protection, health, research and the environment, social policy, asylum policy, external borders, immigration policy, and so on.

Pillar Two: Common Foreign and Security Policy.

Pillar Two is the first of the two new "Policies" established by the EU Treaty. While Pillar One expanded on the foundational EC treaties, Pillars Two and Three thrust the EU into fundamentally new territory. Prior to the EU Treaty, foreign policy and security issues in Europe had been dealt with either under limited intergovernmental agreements dating from the Second World War era and after 1970 through an "informal exchange and coordination structure called the European Political Cooperation."[17] The 1993 EU Treaty significantly expanded EU jurisdiction in these areas by enacting the Common Foreign and Security Policy (CFSP), which had the goal of bringing the foreign policy of EU member states into "alignment."[18] In the wake of the Yugoslavia crisis, which neither the EU nor individual European countries were able to prevent, the CFSP was modified in two subsequent Treaties of Amsterdam[19] (October 2, 1997; entered into force May 1, 1999) and Nice[20] (February 26, 2001; entered into force February 1, 2003).

Pillar Three: Cooperation in Justice and Home Affairs.

The EU Treaty also enacted the Justice and Home Affairs (JHA) policy, which aimed at facilitating greater cooperation between police and judicial authorities, as well as developing policies more effectively to prohibit crimes such as terrorism, human trafficking, illegal drugs and weapons trade, racism, xenophobia, etc. The JHA also established a new European police authority, called Eurapol.[21]

Five major institutions control the EU:

A. European Commission (Commission)

B. European Council of Ministers (Council) C. European Parliament (Parliament) D. European Court of Justice (ECJ)/Court of First Instance (CFI) E. European Court of Auditors (ECA)

In addition to these, there are five additional bodies that are also part of the EU's institutional system:

A. European Economic and Social Committee (EESC)[22] B. Committee of the Regions (CoR)[23] Both Committees have important advisory roles within the EU and are frequently called upon to offer opinions. C. European Ombudsman[24]

Established in 1995, this position (which is held by an individual) was designed for the express purpose of allowing European citizens to make a formal complaint against the EU. Complaints can be made for unfairness, abuse of power, unnecessary delay, etc. D. European Investment Bank (EIB)[25] E. European Central Bank (ECB)[26] With the goal of the European Monetary Union (EMU) called for in the 1993 EU Treaty, these two monetary bodies have taken on an increasingly important role.

The Commission is composed of twenty permanent members who are appointed for five years by common agreement among member states and approved as a body by the European Parliament. A president and two vice-presidents lead it. Each commissioner has their own area of responsibility called a "portfolio. For example, Poul Nielson is Commissioner for Development and Humanitarian Aid. The current Commission, which took office in 2000, is serving until 2005. In contrast to the European Parliament and the Council of Ministers, the Commission does not represent the native countries of the Commissioners but serves the EU as such. It is headquartered in Brussels.[28]

The Commission is the most misunderstood of the EU's institutions and is often wrongly considered to be powerless and ineffective. This view is part held because of the fact that the Commission has no formal legislative power; in difference to the Council of Ministers (and, increasingly, the European Parliament), it cannot make laws of its own accord. Yet this view is a complete misperception for the Commission is in fact one of the most powerful and central of the EU institutions.

(1) The Commission alone has the right to initiate legislation; neither the Council nor the Parliament can of their own accord initiate legislation and they merely possess the formal right to request a proposal by the Commission. The Council and Parliament can amend the proposal, yet the Commission reserves the right to determine whether or not the amendments are in the spirit of their original proposal and can throw out amendments to their proposals. Thus, with few exceptions, the Council and the Parliament cannot act to generate EU laws and, despite all of their combined legislative power, are powerless without a proposal by the Commission. (2) On the flipside of its initiatory right, the Commission is also the body with the responsibility to overseeing and implementing EU laws, policies, and the entire EU budget. Thus, for example, in the 2003 debate over EU funding of destructive embryo research, it was the Commission that was providing the impetus through the draft proposals it was submitting to the Council and Parliament. (3) Along with the ECJ, the Commission is charged with enforcing EU law in which capacity it is also responsible for upholding all past and future EU Treaties; it is, as it is sometimes described, the "guardian of the Treaties." Thus, when in a recent dispute France and Germany fought to evade budgetary penalties (from which they did indeed escape), it was the Commission that was attempting to force the compliance of these two nations.[29] (4) Lastly, the Commission is the institution responsible for representing the EU internationally, including in the negotiation of international agreements. It is in this capacity of voice of the EU that the Commission is also responsible for running and staffing all EU embassies and missions in non-EU countries.[30] (5) Lastly, the Commission also stands at the center of the EU bureaucracy.[31] As one official EU publication puts it: "Without the 20 men and women who are its Members and the [21,000] staff who serve it, the Union would not work."[32]

In sum, the Commission ends up showing itself to be at the very center in each of the EU's most significant areas: legislative and policy initiation (including the negotiation of the EU budget), policy and legal implementation, law enforcement, and international negotiations--hardly the activities one would expect of an insignificant organization.

The Council is composed of fifteen ministers from the fifteen EU Member States. However, the Council is attended by the minister into whose field of competence the agenda of the particular meeting falls rather than by fifteen permanent ministers. Thus, for example, foreign ministers attend meetings pertaining to foreign affairs, science ministers those with science, and so forth. The "various" Councils of Ministers meet about eighty times yearly. The presidency is held cyclically with a different country holding it every six months (starting January and July 1). Smaller countries are benefited by this arrangement because it gives them the chance of engaging closely with those that are larger and more powerful. The country with the presidency is responsible for organizing all meetings of the Council. The Council's seat is in Brussels.

The Council is the primary legislative body of the EU and the laws it enacts are binding throughout EU territory. The Council is also responsible for directing intergovernmental cooperation. Despite its status as highest legislative authority in the EU, the Council is increasingly sharing its powers with the European Parliament through a variety of procedures, including the so-called "co-decision procedure," whereby Council and Parliament must work together to craft legislation acceptable to both bodies. In addition to legislating for the EU as a whole, the Council also determines political goals, synchronizes the policies of national governments, and works to hammer out differences between national governments and between EU institutions. The Council, therefore, is both intergovernmental as well as supranational in kind--intergovernmental insofar as it works with national governments and at the level of interaction between governments, supranational whenever it decides and legislates for the entire Union.

The Council can enact four different kinds of law with application in the EU. An EU publication defines those powers as follows:

1. Regulations: these are directly applied without need for national measures to implement them;

2. Directives: bind member states as to the objectives to be achieved while leaving the national authorities the power to choose the form and the means to be used;

3. Decisions: these are binding in all their aspects upon those to whom they are addressed. A decision may be addressed to any or all member states, to undertakings or to individuals;

4. Recommendations and Opinions: these are not binding.[34]

The Council makes most of its decisions by what is known as "qualified majority voting" (QMV), whereby the votes of countries are weighted according to their populations. While QMV can be very complicated and has since its initial use in the EU been frequently adjusted, it provides an important double-effect. On the one hand, it protects the interests of larger countries with larger populations; on the other hand, it empowers smaller countries by in effect giving them the ability to work with the larger powers. QMV requires 62 votes for passage and only 26 votes to block a decision.[35]

The Council of Ministers should not be confused with what is known as a European Council (nor should it be mistaken for the CoE). Beginning in 1974, the close of every Council presidency (i.e., ever six months) has been followed by a gathering in which the Council of Ministers is joined by relevant government heads of state, officials from national governments, and the president and one vice president of the Commission. Of increasing significance within the EU, the European Council offers the opportunity for setting and evaluating progress toward broad goals for the entire EU. The European Parliament does not formally participate in the European Councils, though the president of the Parliament has the right to address it in its opening session.

Currently numbering 626 members raised to office by direct universal elections for five-year terms, the Parliament possesses many of the functions typically associated with a representative body, including, notably, growing legislative powers as well as the right of oversight. With the accession of ten new countries immanent (in 2004), the number of members in the Parliament (MEPs) will rise (though the Nice Treaty capped this number at 732).

The Parliament has a variety of purposes. Among them, (1) it possesses legislative power. Although the Parliament has not always been a major legislative player, recent EU treaties have significantly expanded its legislative powers, in particular through the creation of the so-called "co-decision procedure," which requires the Council to share its legislative powers with the Parliament in an increasing number of areas.[37] (2) The Parliament also has control "over the Union's activities through its confirmation of the appointment of the Commission (and its right to censure it)"[38]; in this respect, it also plays the important role of supervising EU executive institutions (i.e., the Commission and the Council), which the Parliament routinely questions and from which representatives are required to report before the Parliament regularly. (3) Lastly, the Parliament has the right to approve or veto the EU budget.

D. THE EUROPEAN COURT OF JUSTICE (ECJ) AND THE COURT OF FIRST INSTANCE (CFI)[39]

The European Court of Justice (ECJ) and the Court of First Instance (CFI) are the supreme interpreters of the Treaties as well as of all secondary EU legislation i.e., legislation passed by the EU legislative institutions, the Council and the Parliament. Originally established in 1952, the caseload for the ECJ quickly became too heavy. The result, at its request, was the establishment of the CFI as a "second-tier court." Both courts have their seats in Luxembourg.

Both courts are composed of 15 judges appointed for six-year renewable terms. Eight so-called "advocates general" assist the ECJ in its work. A President, chosen by his fellow judges for a three-year renewable term, heads the ECJ. Judges can either sit in plenary session (attended by all 15 judges) or in chambers of 3 to 5. All 15 judges sit together in particularly difficult or controversial cases, or when member states request them to do so.

Despite its broadly defined jurisdiction, the ECJ does not have absolute judicial authority.[40] Consequently, in order to ensure the effective implementation of EU law as well as to avoid conflicts between the rulings of national courts, the ECJ often issues what are called preliminary rulings--rulings that make explicit "what the relevant Community law is."

The ECJ and the CFI deal almost exclusively with cases involving disputes between EU member states or with cases that arise as a result of apparent and sometimes real conflicts between EU and national laws. Neither of them presently deal with human rights issues, such as abortion, because these are not formally part of the EU's jurisdiction and are in principle left to the member states to decide. However, this may increasingly change. First, large-scale debate over ethical issues involved in biotechnology which many would like to see funded by the EU's science budget, such as human cloning or destructive research on human embryos, are forcing the EU, and hence its courts, to become implicated in debates which many think should be had and resolved at the national levels. Second, the EU in 1999 released a document known as the Charter on Fundamental Rights (Charter); and though it's status is not yet official (more on problems created by this below), it will eventually be made binding within the EU in some form. Though the ECJ may not become the sole interpreter of the Charter (some suggest that a separate court be established or that the European Court of Human Rights, a CoE body, act in this capacity), there is no question that a human rights document for the EU will have the effect of increasingly engaging the ECJ in issues involving questions about the scope and applicability of human rights.[41]

The European Court of Auditors (ECA) has the important role of financial oversight over EU institutions. All EU institutions, including national, regional, and local bodies that manage EU monies, are required to submit financial information to the ECA. In its capacity, the ECA possesses the right to perform unannounced audits to ensure that EU funds are treated with highest standards of financial stewardship. Cases of money spent poorly as well as abused in outright fraud are reported to the appropriate institutions.[43]

At the time of this writing, the EU is deeply engrossed in the debate over a future constitution for Europe. Though there are many critics of a European Constitution, someone of the stature of Pope John Paul II has been very supportive of the creation of a constitution for Europe. His support, however, has not been unqualified and he has been a leading critic of a constitutional treaty that would not mention God or at least the central place of Christianity in the history of Europe. Though the appropriateness of such a mention is perhaps not just unquestionable, it has been among the most heated points of contention in the public debates over the Draft Constitution. In June 2003, the Constitutional Convention released its first draft of a potential constitution. The preamble, which quotes the Greek historian Thucydides and pays tribute to both ancient Rome and the Enlightenment, makes no mention of Christianity. The second portion of the Draft Constitution is entirely made up of the text of the EU Charter of Fundamental Rights (Draft Charter)--as a kind of European bill of rights. The legal enforceability of the Charter, which at the time of this writing is still only a draft and therefore a non-binding document, depends upon whether the Draft Constitution can be ratified. If it ultimately fails, the Draft Charter could be opened for ratification in some other format, perhaps even on its own.

So far, the Constitution has not fared well. For one, its very existence has been fraught with discord and a debate that has become extremely polarized, not only over the contentious issue of the mention of God or of Europe's Christian heritage, but also because of disagreements over more political issues, such as taxation and voting. In fact, insurmountable disagreement among EU countries on how voting power ought to be distributed finally led to the complete breakdown in negotiations at Brussels summit on the Draft Constitution (December 12-13, 2003). Spain and Poland (the latter, one of the ten countries joining the EU in May 2004) were adamant in their refusal to accept Germany's demand that their voting power be lessened in order that its might be increased. Germany argues that its demand should be met on the grounds that it has a population about twice that of either Spain or Poland. Spain and Poland, on the other hand, are fighting fiercely to defend the voting rights they obtained in the Treaty of Nice, which entered into force February 1, 2003.[44]

As for the Draft Charter, which had been inserted into the Draft Constitution, its status will remain legally non-binding until it can either be ratified as part of a Constitutional Treaty or through some other means (see Sec. VI for more discussion of our concerns concerning the Draft Charter).

Despite the disappointment of many at the failure of the recent summit to reach agreement on the Draft Constitution, the accession to the EU of ten new countries will (barring all unexpected factors) still take place on May 1, 2004. Many argue that the absence of a ratified Constitution in advance of this massive enlargement will be disastrous. They argue that the Constitution was substantially intended to prepare the EU, politically as well as administratively, for the impact of a drastically enlarged EU. The future of Europe is far from clear; indeed, at the time of this writing, it is less clear than it has been for a long time.

VI. SOME CONCERNS RELATED TO CERTAIN EUROPEAN DOCUMENTS

The two most important European human rights documents are the Council of Europe's (CoE) European Convention for the Protection of Human Rights and Fundamental Liberties (European Convention), which opened for signing April 11, 1950, and entered into force March 9, 1953,[45] and the EU's 2000 Charter of Fundamental Rights of the European Union (Draft Charter).

To date the European Convention has been ratified by 44 of the 45 member states of the CoE. Legally the European Convention is fully binding upon signatory nations, though 23 CoE member countries have ratified it subject to a variety of reservations.[46]

Interpretation and guardianship of the European Convention falls into the jurisdiction of the European Court of Human Rights (ECHR), which was created by the European Convention and whose rulings with respect to the interpretation and application of the European Convention are binding on all signatory nations. The EU Draft Charter, which was formally signed and proclaimed December 6, 2000, does not, on the other hand, to date have the legal enforceability of the European Convention, nor has its future legal status been finally determined. Naturally, in anticipation of the time when the Draft Charter comes into legal force there has been much discussion about what this will mean for the European Convention. The CoE and EU have held a variety of forums to discuss various possibilities for amalgamating the two documents. At the time of this writing, the Draft Charter has been incorporated into the Draft Constitution of the EU that was released on June 20, 2003. A December 12-13, 2003, summit on the Draft Constitution collapsed after disagreement over the distribution of voting power proved to be insurmountable. A date for resumed negotiations has yet to be set, some predicting that it may have to wait as long as until mid-2005.

The European Convention was drafted in the aftermath of the Second World War to extend greater protection for civil and political rights. Art. 3, for example, prohibits torture and "inhuman or degrading treatment or punishment." Art. 4 prohibits slavery; Art. 9 protects the freedom of thought, conscience, and religion; and Art. 12 protects the right of men and women to marry.

The Draft Charter protects these and other civil and political rights but has a broader scope than the CoE's European Convention insofar as it also covers social and economic rights, such as worker's social rights. The CoE has a separate treaty that deals with social and economic rights, the 1961 European Social Charter, which was revised in the 1996 Revised Social Charter. In contrast to the European Convention, the European Social Charter has only been ratified by 26 of the 45 member states of the CoE.

Both the European Convention and the Draft Charter appear to protect the right to life--"Everyone has the right to life" (Art. 2). We are not aware if internal European decisions have interpreted this provision so that, in fact, some lives are not protected.

The Draft Charter appears to pose certain problems. For example, Article 21 of the Draft Charter, the provision against discrimination, prohibits "discrimination" based on sexual orientation, whereas the European Convention, which also prohibits discrimination, does not mention sexual orientation.[47]

The Draft Charter defines the right to marry, not like the European Convention ("men and women of marriageable age have the right to marry and found a family"--Art. 13), but in such a way as to leave open the possibility of legal recognition of homosexual unions: "The right to marry and the right to found a family shall be guaranteed." (Art. 9). Lest our concern appear exaggerated, note the following brief excerpt from a ruling by the ECHR, which cites the Draft Charter:

The Court [ECHR] would also note that Article 9 of the recently adopted Charter of Fundamental Rights of the European Union departs, no doubt deliberately, from the wording of Article 12 of the [European] Convention in removing the reference to men and women. [emphasis added][48]

When the European Convention was drafted in 1950, Article 8 meant precisely what it stated: "men and womenhave the right to marry and found a family." [emphasis added] Fifty years later, the ECHR questions the clear meanings of these words. In the same ruling, the ECHR also stated:

If the ECHR can interpret the European Convention so as to alter the original meaning, a very serious issue is raised. How can a government that ratifies a treaty be certain that a court will respect the plain meaning of the language? This creates a serious dilemma. The purpose of precise language in a treaty is to assure the parties thereto that the terms of their agreement are clear. By rejecting this fundamental principle of treaty law, the ECHR has put at risk the whole project of treaty ratification in Europe.

As noted, the Draft Charter has not come into legal force. Even so, it has already been making an impact, being cited by the CFI on numerous occasions (at the time of this writing, it has yet to be cited by the ECJ).

It is quite important (and puzzling) that the ECHR has cited the Draft Charter. On July 11, 2002, the ECHR ruled that transsexuals, under Articles 8 and 12, of the European Convention are guaranteed the right to respect for private and family life as well as the right to marry (meaning the "post-operative gender" of the transsexual is given legal recognition).[50] The judgment,[51] quoted above, makes a reference to the Draft Charter of the EU, despite the fact that (a) the ECHR is an institution of the CoE and not of the EU and consequently (b) has no jurisdiction in EU matters. Furthermore, (c) the Draft Charter has no binding legal status, and may or may not be ratified in its present state, i.e., in order to get the twenty-five ratifications it will probably require to come into effect, the Draft Charter may be heavily amended. And while it is unlikely, (d) one cannot rule out the possibility that it might not be ratified at all. Moreover, (e) the rules of interpretation for the Draft Charter--which, of course, are also revisable--only explain how the EU's ECJ and CFI shall interpret the Draft Charter in light of the European Convention, not the other way about. The Draft Charter does not bind the ECHR, nor is the ECHR empowered to expand the meaning of the European Convention to meet the "protections" offered by the Draft Charter.

The European Convention contains no article on issues pertaining specifically to biotechnological research. However, 1997 saw the ratification in Oviedo, Spain of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Bioethics Convention)--which, to this date, is the only international bioethics treaty.[52] Art. 13 bans germline engineering, though it permits intervention into the human genome so long as the purpose is "preventive, diagnostic or therapeuticand only if its aim is not to introduce any modification in the genome of any descendants." Art. 18, par. 2 states that "[t]he creation of human embryos for research purposes is prohibited." The Bioethics Convention does not fully address the status of the human embryo, though it does say in Art. 18, par. 1 that "[w]here the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo" [emphasis added]. The treaty does not mention so-called "therapeutic" cloning or embryonic stem cell research by name, though this type of research would seem to be illegal under Art. 18: the extraction of embryonic stem cells always kills the embryo, and fatal harm to the embryo is in violation of the par. 1.

What of cloning with the end of bringing a human being to term (so-called "live-birth" cloning)? The Bioethics Convention itself does not address it at all. A case could be made for banning it from the Art. 18, par. 2 on the grounds that destructive embryo research would certainly be necessary to perfect the cloning technique in the first place.

Perhaps to circumvent such a debate, the Bioethics Convention was expanded by an important Additional Protocol, which was opened for signing in Paris on December 1, 1998.[53] Entitled On the Prohibition of Cloning Human Beings, it bans cloning, both for research and for "live-birth" purposes: "Any intervention seeking to create a human being genetically identical to another human being, whether living or dead, is prohibited" (Art. 1, par. 1).

It is interesting to note the philosophical basis for the ban on all cloning that the Additional Protocol expresses in its opening paragraph. It states:"Considering however that the instrumentalization of human beings through the deliberate creation of genetically identical human beings is contrary to human dignity and thus constitutes a misuse of biology and medicine"; and then a few lines later: "Considering the purpose of the Convention on Human Rights and Biomedicine, in particular the principle mentioned in Article 1 aiming to protect the dignity and identity of all human beings."

The Bioethics Convention was signed by 31 of the CoE's member nations, but was only ratified by 13 of them. Absent from the list are the United Kingdom, Sweden, Finland, Switzerland, and others. Germany is not a signatory. The Additional Protocol, which was signed by 29 countries, has only been ratified by 13--again with such countries as France, Germany, Britain, Switzerland, and the Netherlands missing. Although it does not appear that the Bioethics Convention and the Additional Protocol will be ratified in the near future--at least, given the recent state of political and public opinion on biotechnological questions--it should not be forgotten that these treaties are in fact binding in countries that have already ratified them. Moreover, the ECHR, the court with the power to interpret and enforce both the Bioethics Convention and the Additional Protocol, should not be permitted to allow these countries to avoid complying with what are now their own laws.

John Henry Crosby is a consultant to the Center for Human Life and Bioethics at the Family Research Council.

Since many people (especially Americans) do not know the difference between the EU and the CoE, this Appendix lays out some of the most important differences. It is actually rather understandable that they should be confused. Taken in general terms, their purposes are not wholly different--both represent post-Second World War institutions created, each in its own way, to prevent European-wide war and to ensure peace once and for all. In point of fact, however, they are entirely distinct organizations.

In general terms, the difference between the EU and the CoE are best seen in light of the immediate ends for which they were established. The CoE was founded, as Article 1 of its founding Statute states, "to achieve greater unity between its members" through (among other things) "the maintenance and further realization of human rights and fundamental freedoms." The EU, on the other hand, with the foundation of the ECSC originated as an economic union and then gradually into the economic/political entity that it is today. One source put the difference very well:

One of the most obvious differences between the two European bodies is that the CoE lacks the legislative power possessed by the EU. In this regard, the EU is rather like a government whereas the CoE is more like a forum in which ways of cooperation can be explored. Only in generating "conventions," which are legally binding upon ratifying nations, does the CoE have any formal legal power.

Another crucial difference between the CoE and the EU is that the Statute establishing the CoE in no way looks beyond to anything like a federation or union of states; in no way does it provide for any eventual "transfer or merging of sovereign rights"[55] or powers to a body in any sense "above" (supra-) or "independent" of the member states. This is in marked contrast to the EU, which at the time of this writing is hotly debating whether to adopt a European Constitution.

The CoE and the EU differ in their respective involvement in national defense policy. Article 1d of the CoE Statute expressly states that national defense policy falls outside of the scope of the CoE.[56] Far from being incapable of pursuing defense initiatives, the EU in the 1993 EU Treaty formally adopted a policy known as the Common Foreign and Security Policy (CFSP), which laid the groundwork for increased cooperation in matters of European defense.

A major difference between the CoE and the EU is the place of human rights protection within their respective purviews. Naturally, both the EU and the CoE are committed to the protection of human rights and the abolition of human rights violations. The CoE from the time of its very establishment has been committed to this end. Article 1a of its founding Statute makes this clear,[57] as did the signing of its European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) in 1950, the first European human rights treaty. In addition to spelling out a broad spectrum of basic human rights, the European Convention also created the European Court of Human Rights (ECHR), which is the supreme authority with respect to interpreting the European Convention. The EU too is committed to the protection of human rights. The 1993 EU Treaty reiterated the EU's "attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law." Furthermore, one of the EU's accession criteria is that a country seeking to join the EU can display a minimum level of protection for human rights and, when necessary, a commitment to improvement in this area. Lastly and of greatest significance, the year 2000 saw the formal release of the EU's Charter on Fundamental Rights (Draft Charter). The Draft Charter at the time of this writing has not been ratified and therefore lacks any legal enforceability. This lack of enforceability is the primary difference between the Draft Charter and the European Convention, which has been binding on signatories for more than fifty years. Another difference between the two documents, is that it has not yet been decided whether the Draft Charter will come under the jurisdiction of an already existing high court, such as the CoE's ECHR or even under the EU's ECJ, or whether one would have to be established. Though always of great moment, the question of a high court is in this case particularly pressing and disputed because the Draft Charter covers every area already covered by the European Convention--and not without making or at least paving the way for some rather substantial changes to the earlier Convention (see Section VI for a discussion of our concerns over these changes). Whenever the Draft Charter finally comes into force, whether as part of a European Constitution or in some other form, questions of jurisdiction such as these will undoubtedly become the subject of lively and probably of heated public debate.