23 October, 2011

The RIO Trip - Part 1: A journey to the heartland of European integration


Last Friday we returned from the RIO-trip, an annual study trip arranged by Leiden University, where master students from the European Law Programme are invited to travel to the three centres of European institutions: Strasbourg; Luxembourg and Brussels.

Strasbourg - Day 1: Natzweiler-Struthof (former concentration camp), the ECtHR and the European Council


After having arrived in Strasbourg on Sunday night, the trip began with a visit to Natzweiler-Struthof, a former Nazi concentration camp, located outside of Strasbourg. Natzweiler-Struhof was the only concentration camp on French soil and at least 22 000 persons perished during its operation. Although it might be surprising that a visit to a site of Nazi genocide is included in a study trip to European institutions, it has a clear educational purpose:

The history of European integration starts at the end of the Second World War in a time when Europe was shattered. Germany was occupied by the victorious states; France, Great Britain, the United States of America and the Soviet Union and a new world order, including the establishment of the United Nations (UN), was dawning. Large parts of Eastern Europe fell under the shadow of the Iron Curtain, while the Western European states aligned themselves towards the US. It was a time of great uncertainty and the major political issue was the future of Germany. Germany had twice instigated war in Europe, which had led to large parts of the World being drawn into conflict, claiming the lives of countless millions. In particular the French feared for a future German state with the capacity to militarize. The solution, which eventually emerged, was the Schumann-plan, the famous declaration of 9th May 1950, where Robert Schumann proposed that France and Germany would place their production and procurement of coal and steel under a common High Authority. The idea was that these resources, essential for industrialised warfare, would be controlled, and the integration of the economy related to them would prevent such warfare. The proposal would lead to the birth of the European Coal and Steel Community (ECSC).

It would not be entirely precise to say that the ECSC was the birth of the European Union (EU), however, the ECSC introduced what is today referred to as the Community method. Although the precise meaning of the Community method is academically disputed, it can be described as a method of regional governance, which combines supranational as well as intergovernmental institutions working around and towards a common objective. Sometimes these institutions work together; sometimes they struggle against each other. There is an element which sets the community method apart from other forms of international governance; the ability to draft legislation which produces directly applicable effects throughout the Member States. This method was adopted by the latter European Economic Community (EEC), which would not only govern coal and steel, but include rules for all goods and services crossing borders. The EEC, as we know, would later become the European Union (EU).

Thus, in the early days of European integration, the objective of peace would be attained through economic integration. This idea would later influence the founding of a European Community, which established supranational institutions, facilitating the objectives that Community set up for itself.



There was another important element of European integration and that is the concept of human rights. Human rights were not something entirely unfamiliar at the time, but the ideas that each human being inherently possesses an inviolable dignity had been discussed by philosophers since the era of enlightenment. These ideas influenced the revolutionary movements who overthrew the feudal despots, starting in the late 1700's. Yet even after countries democratized, the notion of human rights as we know it today had not quite yet formalized. The Second World War changed all of this, which is evident not only in the United Nations Charter, but also in the two primary organisations driving European integration forward: the EEC and the Council of Europe (CoE). The functioning and development of these organisations are discussed further down below.

To return to the study-trip; we visited Natzweiler-Struthof on Monday. Not much is left of the camp today, and its' location in the beautiful lower alpine surroundings of Alsace makes it hard to imagine the crimes that were committed. Seeing the flower-bed, daily replaced, in the furnace of the crematorium and the descent to the gas-chambers make the surrealistic realistic. The visit was important because it established the link to our upcoming visits for the upcoming two days: The CoE.

The CoE was established as a regional organisation alongside the ECSC and the EEC. It is a purely intergovernmental organisation in which its High Contracting Parties (being states today, soon to be joined by the EU, whose its accession is being negotiated as we speak) can pursue whichever policies they wish to co-operate on. The main objective of the CoE, as well as a prerequisite for membership, is the maintenance and promotion of rule of law, democracy and human rights. Although it is always nice to have an international organisation which claims that it will safeguard such values, realistically, it is easy to imagine that those nice words does not lead to substantial action. The European Council is, however, different in one very important aspect; it early achieved a treaty guaranteeing EVERYONE within the jurisdiction of the High Contracting Parties fundamental rights and freedoms under the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

The Convention would grow in importance as time progressed, following the living instrument doctrine established by the European Court of Human Rights (ECtHR). The judicial pro-activeness of the latter was a contributing factor to the Conventions successful application. Largely because the Court was early willing to boldly safeguard and expand the scope of the Convention through its dynamic style of interpretation, effectively establishing European standards of human rights protection and subjecting the High Contracting Parties to external review.

Our visit to the Strasbourg Court (being the city where the ECtHR is situated) was very rewarding as we got a hands on opportunity to pose or questions not only to the Dutch judge, Egbert Myjer, but also address a staff member of the Registry; the latter department being responsible, inter alia, for drafting the judgements of the Court. A topical issue, which was raised during the visit, was recent critique directed towards the Court for interpreting the Convention to extensively. Judge Myjer responded to this critique calmly, clearly used to the opinion that the Court is going beyond the intention of drafters. It is hard not to agree with Judge Myjer. All courts, whether national or international are from time to time subjected to academic, professional as well as popular disagreement. This is a natural part of a courts jurisprudential development. Nonetheless, the critique is not entirely unfounded as the Courts interpretation, from a strictly legal positivist point of view, is not always convincing.

The visit to the ECtHR ended with a very interesting presentation by Mr. Schokkenbroek, Special Representative for Roma Issues. The CoE has initiated a campaign where they are supporting efforts for local authorities to mediate with Roma communities to include them in European societies. The presentation was very topical considering last years mass-expulsion of Roma from France, and this years violent racistic protests against alleged Roma-criminality. Sadly, the situation for Roma communities and individuals is horrendous, and European states must soon come together to ensure that the next generation of Roma may be redeemed from the sufferings of countless years of persecution.


From the Strasbourg Court, we ventured onward in the beautiful city to the neighbouring Palais de l'Europe, where the Court was previously situated. We met with Mr. Franke Steketee, from the Directorate of Democratic Institutions, who engaged us in a long discussion about the organisational structure of the Council of Europe vis-á-vis the EU. The discussion was lively and towards the end, Mr. Steketee raised the question whether the Union could expand further to include new Member States. The question was raised in relation to the territorial extent of the CoE, including some 47 Contracting Parties as opposed to the 27 Member States of the EU. Surprisingly, there was little support for further principal expansion of the Union, which I personally found surprising in a class studying European law. At the same time, the Union is not likely to expand rapidly, as it did when a large number of Eastern European nations joined in 2004.

The day ended with a reception at the Dutch permanent representation to the Council, where we met with Mrs. E. Berends and her staff.

Strasbourg - Day 2: The CCNR, the European Ombudsman and the European Council  



The second day started with a visit to the Central Commission for the Navigation on the Rhine (CCNR), an international organisation dating back to the 1800's, which has facilitated the free movement on the important waterway the Rhine and is still performing those functions today. The MS are the countries through which the Rhine passes: the Netherlands, France, Germany, Belgium and Switzerland. The CCNR are today working in close co-operation with the European Union, however, regulatory competence within the Commission. The reason for this, according to the dep. Secretary General Mr. van der Werf, is that the regulatory procedure is much easier and more cost-effective as it only entails five parties, co-operating on a multilateral basis. The CCNR might not be the most prestigious regional organisation in Europe, nonetheless, it must be remembered that there are in fact countless of larger and smaller organisations in Europe (many working together with the EU), all contributing towards integration in different ways.

Following the visit to the CCNR we ventured to the European Ombudsman, a rather new institution (established in 1995) of the Union. The concept of the ombudsman stems from the Nordic legal systems where it exists in many forms as a quasi-judicial institution, which investigates allegations of misconduct in relation to - e.g. - discrimination, public administrative misconduct etc.

The European Ombudsman investigates the administrative conduct of the Union institutions (Article 228 TFEU), and his competence therefore only concern legal acts and decisions adopted by the Union itself. The Ombudsman does not, as opposed to its Nordic predecessors, have any prosecuting powers but merely delivers reasoned opinions and reports of whether accused institutions have acted legally and according to good administrative conduct. The decisions are not binding, but any allegation of misconduct by the Ombudsman usually leads to rectification by the institution responsible for that misconduct.



The day ended at the Agora-building, being the primary administrative centre of the CoE. Three presentations were given in the afternoon, including a presentation of the Permanent Representation visited on the previous day, a presentation on the Committee for the Prevention of Torture, Inhuman and Degrading Treatment or Punishment (CPT) and the Director of Standard Setting from the DG of Human Rights and Legal Affairs.

Particularly the second presentation at the Agora-building was interesting, concerning the work of the CPT. The CPT is one of the few departments of the CoE which does hands-on work in the form of on-location visits. The CPT operates under the European Torture Convention and investigates detention facilities on the territories of the High Contracting Parties. It has a team of lawyers and medical staff, who are specialised in situations of mistreatment. The work is a quality check of all forms of detention (criminal, psychiatric, immigration etc.), where the representatives travel to the facilities and inspect them. These inspections may or may not be planned ahead, which empowers the CPT to conduct unexpected visits. As human rights law is an area which frequently comes under attack for being a paper-product, it was very inspiring to hear the presentation (which would turn out to become more of a question-hour) with Mr. Patrick Müller who has several years of expertise having worked in the CPT.

Rounding up



The two first days of the RIO-trip were certainly inspiring in many ways. It was a great experience to get a glimpse of the institutions that you read about in textbooks and in the jurisprudence and which, especially for a Swede, seems to be so far away. The trip was also an excellent reminder why these institutions and organisations are so important:

Returning to some of the notion that were discussed in the introduction of this post, namely the role of peace-building and human rights as essential parts of European integration. In particular, I would like to discuss the commonly voiced opinion that we wouldn't have peace in Europe if it were not for the EU. This is a statement that is both true and false. The EU, or more prominently the ECSC, through the community have facilitated peace through economic integration. It is undeniable that economic integration denotes armed conflict between states as they become dependent on each other. However, the initial statement is based on the presumption that this was the only way of achieving peace in Europe. The strong institutions of the Communities have certainly aided in achieving peace, but equally important is the work of the CoE, where states have joined together, striving to promote the respect of human rights throughout their territories. Although the concept of human rights was not believed to be extended as widely as it has been by the CoE and the Strasbourg Court, the effects that have been produced by this co-operation are remarkable. European states which do not respect human rights will suffer for it, there will be complaints in the CoE and the Strasbourg Court is vigilant in its review.

There is a flipside to the story of European integration and that is its regional focus. Peace may have been achieved in Western Europe, but bloody war and conflict terrorized the peoples of Balkan throughout the 1990's. Moreover, European states were involved in post-colonial conflict and exploitation in Africa, Indochina and most recently Iraq. Finally, the situation of the Roma minority is frankly appalling in several European states. Therefore the conscience of Europe might not be as clean as it may be percieved. Neverheless, the history of European integration has taught us one thing:

Institutions create stability. Europe is today, despite economic and political unrest, stable. In the face of the difficulties that we face, we have institutions that have brought states to work towards common goals, affecting not only the population of a single state but hundreds of millions of people (the EU alone is comprised of some 500 million people). Perhaps therein lies also the greatest challenge of these institutions: to ensure that the peoples that they govern receive the benefit of states working together, while each individual are guaranteed to influence that process of multilevel governance, ensuring that everyone are included in the journey towards a Europe, which is unified in diversity.

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