The Evolution of the European Union’s Fundamental Rights Law


The realisation of human rights and fundamental freedoms has become a key area in governance and policy. It is not only a key consideration that guides law making but also affects its implementation. The duty to protect rights was for a long time seen as an obligation restricted to national governments. Human rights were regarded as matters that fell within the domestic law realm. However, there has been an increase in the need for the realisation of human rights at a regional level. The development of regional human rights protection has led to considerable changes and improvements. It has also been marred with criticism and critique as to its effectiveness.

In light of the above, this paper shall track the evolution of fundamental rights law in the European Union. It will highlight the incorporation of rights basing on what general principles were applied. It shall further assess the inspiration behind the fundamental and the relationship between the rights and treaty provisions. It shall also investigate the application of the rights seeking to find the function of rights at the core of EU’s fundamental rights law.

The development of human rights from general principles

Regional law like International law developed from general principles and custom practiced by the individual states in the region. After World War II a majority of European States at the time sought to protect human rights. The war left an indelible mark on the world large. With most of the European States taking an active part in the war, a great deal of property and life was lost.

The events of the war called inspired these states to establish a regional intergovernmental body. This body was called the Council of Europe. It sought to not only unite Europe but also promote socio-economic progress of the continent. The council also sought to promotion of human rights regionally.  A positive step towards this was the signing of the European Convention on Human Rights and Fundamental Freedoms (ECHR). This monumental step came on November 4, 1950 and came into force in 1953. The ECHR was a key step in EU fundamental rights development as it ushered in the development of a European Bill of Rights.

The recognition of human rights arose from general principles.  The term general principles have no singular definition in law. It is used as a blanket term to refer to the law creating tools under which the municipal courts apply in coming up with laws. These principles emanate from equity, public interest considerations and the notion of justice.  Thus a majority of the developments in the EU fundamental rights jurisprudence stems from general principles,

Moreover, general principles guided the drafting of the ECHR. For example, the principle of proportionality and legality is a general principle that seeks to asses the justiciability of a limitation to rights. The principle is seen in its application at Article 11 on the freedom to expression. The principle of proportionality is seen as essential in the interpretation of human rights. They are applied along side the rules and statutes to provide a more objective approach to adjudication.

The application of general principles is also seen in Protocol 15 at the preamble. Here it embodies the general principle of subsidiarity. It allows that the municipal courts be treated as subordinates those the European Court of Human Rights (ECtHR). As such, where a person feels aggravated by a decision in the superior court of his/her nation, he/she can appeal to the ECtHR. Principles have hence become not only a guide to adjudication of human rights issues but have also part of the EU fundamental rights law.

Sources of Inspiration for fundamental rights

From a philosophical point of view, rights were inspired by the notion of natural rights. This meant that every individual has inherent rights arising from natural laws. Initially these were considered inherent based on the practical rationality. Because these rights were from nature, everyone had knowledge of them and knew what they were. Therefore, rights such as the right to equality, right to privacy and right to life were considered to have been inspired by this notion. Also, based on the fact that rights were seen to have emerged from nature, religious rights and freedoms can also credit their existence from this point.

From a more “secular” point of view, there was need to cater for civil liberties and freedoms away from the religious freedoms. Thus, based on the need to cater for such rights that would not in the ordinary sense emerge from nature, civil and political rights came into the frame. Rights such as the political rights to vote and vie in an election were inspired by a broader view of general principles and customs related to democracy. The right to protest and public assembly were inspired in a great deal by the notions of democracy and public oversight.

It is also important to note that fundamental freedoms were inspired in a great deal by the respect for human dignity. Human dignity is seen as the foundation on which human rights and fundamental freedoms rests. Thus, all rights are seen to emerge from the notion that every person has a right to be respected as a human being. As such, the right to life, freedom from torture and inhumane treatment emerged from this notion.

As to the relationship between fundamental rights and treaty rights, the former has led to the development of the ECHR. The fundamental rights in the EU are hence realised through the treaty provisions and can be seen to have their application in this regard. The fundamental rights such as the basic political rights to vote have been interpreted further to include other rights such as the right to information, the right to freedom of expression and right to assembly, Thus treaty provisions will expand on the view of fundamental rights based on the fact that treaty codifies general principles and customary law.

Applying fundamental rights to meet EU’s core obligations

With regard to the application of fundamental rights, the EU views the protection of fundamental rights as essential for every state party. Therefore, a state can be held liable for failing to meet this obligation. As such, the EU through its institutions will enforce the promotion of human rights protection. Therefore, states have a positive obligation to ensure that they provide institutions, legislation and finances for human rights realisation.  Furthermore, the state parties have negative obligation to refrain from activities that will infringe on the fundamental rights and freedoms. Fundamental freedoms apply in the social context where these rights will involve the religious and cultural rights. They also apply in the economic context where the right will regulate trade and activities in the market. 

The fundamental freedoms seek to meet the key objectives of the EU. Providing a regional framework for realisation of human rights is essential in promoting regional unity and cohesion. It creates a standard through which the municipal laws of state parties are regulated and guided. Human rights are also essential for regional development. It ensures that the state parties structure their laws to include and development of laws that further the realisation of fundamental laws.


The realisation of fundamental human rights to a great extent informs regional development and institutional framework. In order to fully achieve this, the EU fundamental rights law borrows a lot from general principles, the existent circumstances and development by the courts. Further development will be essential in achieving the obligations of the EU and will need the state parties to play a part in developing the jurisprudence in this area. As such, the state parties should at the individual level implement human rights.

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