The drafting of a Charter of Fundamental Rights for the European Union is nearly completed. For the past six months, the contents of this Charter have been debated by a 'Convention' made up of government representatives, national and European parliamentarians. The latest documents submitted to the Convention by its chairman, former German president Roman Herzog, together constitute a full draft Charter of fifty articles. However, before handing over the Charter to the European Council of heads of state and government leaders, who will decide on its legal status, the Convention should urge its chairman to improve on the text.

 Herzog has put aside most of the innovative ideas which sprung up from the discussions in the Convention. This conservative approach makes it questionable if the Charter is going to meet much popular resonance. For instance, the Charter includes the right to have the privacy of one's correspondence and communication respected (article 12), but neglects the reality of national and European governments being unable or unwilling to protect this right in the digital era. The only official step the EU Council of Ministers has taken in response to reports about wide-spread interception or private and commercial communications by American and British intelligence services - the so-called Echelon network - is lifting restrictions on the use of encryption techniques. This sends a clear message to citizens and companies: we can't guarantee the privacy of your e-mail, do it yourself. It would be appriopriate, then, to introduce a 'right to encryption' in the EU Charter, or to explicitly state that the use of cryptography is included in the right to communication privacy.

A strange feature of Herzog's draft Bill of Rights is that so many articles don't mention rights at all. Article 44, for instance, states that the protection of the environment and human health should be ensured in the EU's policies. Herzog seems to shrink from recognizing a right to a clean and healthy environment. He overlooks the fact that both the EU and its member states have already signed up to such a right, in the 1998 Aarhus Convention on access to justice in environmental matters. The same objection goes for the part of the Charter which deals with social policy. In avoiding the rights vocabulary used in existing treaties, Herzog seems to assume that the EU cannot guarantee the provision of basic needs.That would be up to the member states. However, a reading of the social chapter of the EU Treaty reveals that it is not so much a lack of competence, as a lack of political will which accounts for the EU's inactivity in the social field. A Charter which is based on the assumption that classical and social rights are indivisible, should not render the latter category toothless. After all, one of the aims of the Charter, as the European Council declared, is to enable citizens to claim their rights in court.

Article 21 of the draft Charter is probably the most irresponsible step backwards from the international human rights acquis. It states that nationals of third countries have the right to asylum in the EU, consistent with the rules of the 1951 Geneva Refugee Convention. This seems fine at first glance, but the problem is that restricting the right to asylum to nationals of non-EU-countries is inconsistent with the Geneva Convention. By signing this treaty, all EU member states have committed themselves to a refugee definition without any limitations as to country of origin.Nationals of EU countries therefore may not be deprived of the right to apply for asylum in another EU country. To rule out the possibility of EU states committing acts of persecution is wishful thinking, all the more dangerous in view of the future enlargement of the EU. The applicant states have made significant progress in respecting human rights, but the risk of set-backs is by no means hypothetical. For other parts of the world, the suppression of the right to asylum between EU countries sets a dangerous precedent. If other regions, with even less perfect human rights records, follow the EU's example, what will be left of the right to asylum?

In the 'classical rights' chapter of the draft Charter, Herzog, with the support of a majority of the Convention, has taken the liberty to abbreviate the sometimes lengthy articles of the 1950 European Convention on Human Rights (ECHR). The compact language of the draft Charter certainly makes a better reading than the ECHR. The downside is that essential elements of the ECHR, such as the enumeration of the rights of the defendant, have gone lost. To some extent, these deficiencies are repaired by the 'horizontal' articles (47, 49) which say that the EU Charter may not be interpreted as to limit or detract from rights laid down in the ECHR. This is not a sufficient reassurance though, as long as an explicit reference to the jurisprudence of the European Court of Human Rights in Strasburg is missing. In applying the Charter, the EU's Court of Justice in Luxemburg might still diverge or even detract from the Strasburg case law, as long as the EU itself has not acceded to the EHCR. Of course this problem does not pose itself if the Charter becomes no more than a solemn declaration, not incorporated in the EU Treaty. That is a false option though. What are rights if they cannot be claimed before a judge? The Charter should be of sufficient quality to be made binding on the EU and contribute to the legal protection of its citizens and residents, or else the whole exercise will turn out to be the EU's umpteenth abortive PR stunt.

Kathalijne Buitenweg and Joost Lagendijk