The EU and Non-Members: A Rights-Based Philosophical Reading of the Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union definitely has implications, beyond the right to asylum, for how the EU should act towards people in need outside the EU, Tommaso Colombo and Jos Philips argue. They defend this by proposing a rights-based philosophical reading of the Charter, rather than a relational or consequence-based reading.

Tommaso Colombo and Jos Philips, University of Utrecht

The so-called ‘refugee crisis’, which involved the arrival on European territory of more than 1,5 million refugees in 2015, has generated several, sometimes conflicting views concerning how to deal with refugees, both among the public and in more ‘official’ political debates in the Union. This fragmentation of views among Europeans arguably represents a challenge to the European ‘project’, more precisely, to the Union’s goal of creating a common, stable normative understanding focused on the importance of guaranteeing people’s fundamental rights. One of the most prominent places where such a focus is found is in the Charter of Fundamental Rights of the European Union, on which this blog entry will concentrate. The Charter testifies to a clear commitment to human rights and explicitly addresses the right to asylum. This suggests that the EU’s commitment to human rights includes refugees within its scope.  Yet the ‘refugee crisis’ –we will stick to this common albeit not very fortunate expression– has shown that there are heterogeneous views about the scope of this commitment. Does the Union’s commitment to guaranteeing fundamental rights concern its own citizens and those who stand to be recognized as refugees? Or is its scope broader and does the Charter have – more or less clear – implications, beyond the right to asylum, for how the EU should act towards people in need who are outside the EU (and who are not its citizens)? In this blog post, we propose a philosophical reading of the Charter – as an articulation of the Union’s ideal of guaranteeing fundamental rights – where there are definitely such implications.

   To elaborate: the right to asylum already implies ways in which one should and should not treat certain non-members in need, often especially those who arrive at the EU’s shores or at its airports. (We will throughout use the term ‘non-members’, although it may not be in all respects fortunate. We mean to refer by it to individuals –rather than countries– who are not EU citizens and who are outside the EU.) Philosophically, the exact content and scope of the right to asylum may be investigated, as may, relatedly, what would be the best way to define who is a refugee. This is not what this blog post is about. Rather, we want to propose additional morally relevant reasons for the EU and its citizens to take the fundamental rights of non-members, including potential refugees – and more broadly those in great need and sometimes fleeing their homes – seriously. The basis of these reasons is that, in our view, the best philosophical reading of the EU’s commitment to fundamental rights as articulated in the Charter, is not relational or consequence-based but – as we will call it – rights-based; and the rights-based view is, in ways that will become clear, very inclusive towards non-members.

   A brief remark on what we will mean by offering a philosophical reading of the Charter (or, as we will also call it, a philosophical reconstruction). By this, we mean proposing a coherent view of how to understand and philosophically justify the Charter’s content, such as its reference to fundamental rights. Such a reading is not a legal undertaking, nor an attempt at detailed exegesis. Rather, it is a proposal – clearly and carefully informed by the text of the Charter, but which may at the same time be to a certain extent revisionist – for articulating what is, normatively speaking, ultimately going on in the Charter. More precisely, for this blog post, it is an attempt to understand and morally justify the Union’s commitment to guaranteeing fundamental rights.

   We will examine three important possible philosophical readings of the Charter. First, one could read it by adopting a relational account in which the Union’s commitment to recognising and protecting fundamental rights applies only, or at least mainly, to EU citizens, because they have certain morally relevant relations with one another which they do not have with non-members. Alternatively, one could read the Charter in a broadly consequence-based way of the following sort: one could view the Union’s commitment to fundamental rights as driven by the aim of fostering the overall prosperity of the Union and that of its member states. Thus, fundamental rights would likely apply first and foremost to people living within the Union. Or thirdly, one could adopt a right-based account and read the Charter as follows: the Union commits itself to guaranteeing people’s fundamental rights because the recognition and the protection of those rights is of great importance to human beings in general. Here, non-members would be very important addressees of the rights. The remainder of this blog post will challenge the relational account and the consequence-based reading and argue that the right-based account offers the most plausible reconstruction. To end, we will articulate some preliminary implications of the right-based reconstruction for the Union’s duties towards refugees.

A relational account

On a relational account, the EU should guarantee the fundamental rights of EU citizens because they share something morally relevant – for instance, that they live under the same law or have certain relations of collaboration – which generates enough reasons for them for wanting or having to guarantee (through the EU legal order) one another’s fundamental rights. By contrast, the same would not apply to non-members, with whom EU citizens are allegedly not bound by morally significant relations which would require guaranteeing the rights. In this extreme form, this is not a position found in the literature, but we do find the articulation of various kinds of morally relevant relational reasons (see below) which can make for quite a stark difference between how insiders, on the one hand, and non-members, on the other, should or may be treated. This, then, represents a possible way to read the Charter that consists in grounding the Union ideal in moral reasons that are relational in nature, and to derive from this reconstruction the exclusion of non-members from the scope of the Union ideal. This is to say that the rights the Union is committed to guaranteeing are seen as special rights to which EU citizens are entitled. Before challenging this reconstruction, it is worth making some clarifications on a more theoretical level.    

   First, some morally relevant relations that are mentioned in the philosophical literature involve certain kinds of cooperation and interdependence, cultural affinities, and coercion. Secondly, in this context, leaving aside theoretical controversies, relational moral reasons can be seen as reasons to morally justify one’s actions that appeal to the presence of a relation between the agent and the recipient of that action. For instance, in the case of people living under some system of cooperation it may be argued that the forms of reciprocity that are involved – for instance, where these people benefit from each other – generate enough reasons to justify the recognition and the protection of each other’s fundamental rights. As far as relational reasons go, if I am not bound by a relation of reciprocity, interdependence, cultural affinities, or coercion (etc.) to another individual, there may be not enough reasons or no reasons at all to regard guaranteeing her fundamental rights as something that I owe to her.

A relational way of reading the Charter can be challenged at least in three ways, two more internal and one more external. First and foremost, one can challenge the assumption that EU citizens and refugees do not share any morally relevant relations by reflecting on the possibility that the above-mentioned relations might also apply when dealing with non-members. For instance, by taking into account the globalised nature of our economy, it seems plausible to claim that relations of reciprocity and interdependence are present also with people living outside EU territory. Something similar may be the case with regard to certain coercive international institutions that affect people’s existence across the globe; this circumstance, too, might bind EU citizens and people outside the EU in a morally relevant way. Secondly, new morally relevant relations between EU citizens and non-members may have arisen recently. For instance, the Union and its members may somehow have benefited from, or contributed to causing, the current ‘refugee crisis’ and this could generate moral reasons for having to guarantee the fundamental rights of certain non-members. However, these considerations have an empirical dimension and we will not expand on them, but instead focus on a third, more external challenge to a relational account. This challenge states that relational reasons may be outweighed: there may be other reasons, non-relational in nature, that are weighty enough to, all-things-considered, favour guaranteeing the fundamental rights also of non-members. Before reflecting on the plausibility of appealing to non-relational reasons and of formulating a reconstruction of the Union ideal in that sense, let’s first look at a second important philosophical reading of the Charter that we believe ultimately falls short.

A consequence-based account

Another possible way to read the Charter from a fundamental perspective is that guaranteeing fundamental rights is required because of the positive consequences that doing so has for the general prosperity of the EU. (One could also think of accounts in this spirit which would focus on other goods/values than prosperity.) It is sometimes thought that this approach could above all justify guaranteeing the fundamental rights of EU citizens, and less so those of non-members – but this need not be so. Anyhow, as said, this is an account in which the reasons for guaranteeing fundamental rights refer to furthering the EU’s prosperity. Prosperity could be seen as a quantifiable good, to be regarded as valuable; according to this account, it should be brought into existence and promoted.

   This account can be criticized in several ways. First, one could question an empirical assumption that the account, in many versions, involves: that the EU’s prosperity is better served by guaranteeing the fundamental rights of its citizens than by not doing so – and similarly by doing less rather than more to guarantee the fundamental rights of non-members.  However, we will not further elaborate on this criticism, but shift to another, more fundamental point of criticism: that the focus of a consequence-based account, as outlined above, is the EU’s prosperity. But can such a focus really give us a morally respectable account? We could say that moral reasons – in contrast to reasons of self-interest – address themselves to a broader audience. Yet by focusing exclusively on the EU’s prosperity, the above consequence-based account seems to address itself only to citizens of the Union and not to the rest of humanity. This makes the account morally implausible. (An account that focused on global prosperity instead of the prosperity of the EU could potentially do better.)

A rights-based account

There is a final, third reading of the Charter that we would like to discuss: one could resort to moral rights to elucidate the Charter’s reference to fundamental rights. This reference clearly (but certainly not exclusively) has legal aspects. In light of this, it has to be kept in mind that – as Allen Buchanan has remarked – legal rights are not generally best understood as ‘mirroring’ moral rights. Yet in the present case, an appeal to moral rights may still help to better understand what is at stake in the Charter. We will now elaborate somewhat on one conception of moral (human) rights, among many possibilities offered in the philosophical literature: that fundamental rights should be guaranteed because they are needed to protect and promote the main significant interests of human beings. The idea is that the interests of all human beings matter a lot – a clear reference to the fundamental equality of all human beings. Thus, according to this reconstruction of the Union ideal, the Charter’s rights can be seen as moral and universal rights applying to all the members of the human family, including non-members. 

This rights-based account seems a better philosophical reading of the Charter than the other two that we have examined. It provides a relatively straightforward and natural explanation of what may be at stake in the Charter’s appeal to fundamental rights, more so than the relational and the consequence-based accounts. Moreover, it appeals to reasons that seem morally very strong and that often can plausibly outweigh – or sometimes even exclude – the reasons given by the other two accounts.

To further develop the above rights-based account, a further story must be told concerning human beings’ greatest interests, the necessary conditions for safeguarding those interests, and the rights of the Charter. For instance, it seems plausible to assume, firstly, that one of the main interests of individuals consists in being able to pursue a fulfilling existence, and secondly, that one of the goods that will be important for this is, at least for a broad category of people, our capacity to deliberate about, pursue, and revise those ends that could make our life fulfilling. In addition, one must demonstrate that the recognition and the protection of fundamental rights is necessary to make use of the above-mentioned capacity and thus to pursue a fulfilling existence. If this can be shown, we would have reasons to justify the Union ideal to guarantee – or, more precisely, to respect, protect and fulfil –  the fundamental rights of all human beings, that is, including those of non-members.

Let us, concretely, look at Article 4 of the Charter, ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment,’ and let’s imagine two related scenarios. First, a person being tortured. Can a person govern her own life and pursue her own ends in order to live a fulfilling existence when being tortured? It would be hard to deny that people have a need not to be tortured in order to make use of their capacity to deliberate about, pursue, and revise the ends that could make their existence a fulfilling one. Secondly, a person at risk of being tortured. That is to say that, we are dealing with a person who is not currently being tortured but who could be tortured. This case makes it clear that people also have a need not to live in the constant paralysing fear of being tortured, if they are to be able to make use of their capacity mentioned above, and thus to pursue a fulfilling existence. The scenarios just mentioned demonstrate the importance of not being tortured, but also the additional value of being protected against torture today, the day after, and so on. The same line of reasoning can be applied to other rights mentioned in the Charter, but we will, for the lack of space, not do this here.

In short, the rights-based reconstruction that we have advocated says that the EU should guarantee fundamental rights because of the importance of safeguarding people’s fundamental interests, implying that this is important with regard to all human beings, including non-members.

Finally, while the rights-based reconstruction generates moral reasons for the EU to guarantee the fundamental rights also of non-members, more would need to be said about the exact duties that are involved for the EU. These will in any case be duties not to actively disrespect fundamental rights, including those of non-members. And, at least where the EU needs not sacrifice anything of great value, and possibly also in other cases, there will also be certain further duties: duties to protect people against disrespect of their rights by third parties, and to better fulfil their rights by taking certain positive measures. The elaboration of these duties has not been the purpose of this blog post. We have tried to show, rather, that a plausible philosophical reading of the Charter puts fundamental rights centre stage, also those of non-members, in a way that goes much further than the right to asylum.

For further elaboration of a rights-based perspective on the EU’s normative commitments, see: Marie Göbel, Toward a Cosmopolitan Europe: Normative Requirements for EU Refugee Policy in the Light of Empirical Possibilities and Constraints, NoVaMigra Policy Research Alert No. 8, September 2020, available at https://novamigra.eu/index.php?id=12.

Many thanks to Therese Herrmann and Marie Göbel for their comments on a draft of this blog post. Any shortcomings remain entirely ours.

Tommaso Colombo is a graduate student at the University of Utrecht’s Ethics Institute. He can be contacted at t.e.colombo[at]students.uu.nl.

Dr. Jos Philips is an assistant professor in Political Philosophy and Ethics at the University of Utrecht’s Ethics Institute. He can be contacted at j.p.m.philips[at]uu.nl.

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