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Ideas of the European Legal Landscape: A Background of Contemporary Europe

European Union and the Council of Europe are present in our daily lives so much that we offten do not think about roots of those entities and histories which exist behind them. But those histories are still very much alive.  Council of Europe is the oldest European Association dating back to the 1949, founded just after the Second World War and although today Council of Europe today has 46 states, in the beginning only few countries were those which founded this important Association. Those countries were Belgium, Danmark, France, Ireland, Italy, Luxembourg, Netherlands, Norway, Sweden and United Kingdom. Soon after, only after three months two other states joined Turkey and Greece. The legal foundation for the formation of the Council of Europe was The Treaty of London signed on the 5th of May 1949. The Treaty of London ’made’ the Staute of the Council of Europe on the following grounds: pursuit of peace based upon justice and international co-operation, devotion to the spiritual and moral values which are the common heritage of their peoples, individual freedom, political liberty and the rule of law, and also interests of economic and social progress and the desire to bring European states into closer association. Those preliminary definitions are so very important to have in mind when we will further analyze each concept which is applied today in contemporary Council of Europe (and EU) and which includes the rule of law. Each concept has to be observed together with other aims of the Statute and not taken as a sole source for interpretation. On contrary rule of law as a concept has to be taken together with all other proclamations form the preamble of the London Statute. Without doing so it would be interpretation contra legem. Common heritage of humanity, individual freedom, political liberty and then rule of law as key concepts of the foundations of the Council of Europe on which all law is based and pillared. These concepts are so important that it is not possible to consider any law or subsequent judgement derived from that law which does not follow those important principles. Common heritage of humankind or common heritage is a concept developed in international law although its history was not without controversies, for the major reason that is not applicable in reality and seen more as a theoretical concept or concept which belongs to the book of good wishes. But the core of this principle in international law is more environmentalist and orientated towards the care of the natural resources which are to be used by generations to come. In contemporary perspective when we discuss problems with common heritage the greatest concern is use of nuclear and military weapons, polluting the land, sea and air. General principles of the Common Heritage are connected with few core elements connected with environment and intergenerational solidarity in our patrimony or landscape.

This is the key concept of common heritage of humanity, on which political more shaped concept of common heritage of peoples of Europe is lean upon. It is somehow different concept which share necessity of preserving values and material assets of ascendents to descendants. It is narrower and concrete in the scope of the Council of Europe framework. Beginnings of the common heritage of Europe has its origins in the Florence Convention, which in the Preamble of the Florence Convention (Recital 3) provides that member States are ‘aware that the landscape contributes to the formation of local cultures and that it is a basic component of the European natural and cultural heritage, contributing to human well-being and consolidation of the European identity.’

It is clear that there are attempts to define common heritage of Europe and that there is no (still) quite clear definition but the attempts which are made clearly shows that there are two major concerns: one is protection of natural resources and another is cultural resources which have to be transferred to younger generations. There are also two other which are together with the narrative from Florence Convention included in the Faro Convention are cultural heritage, common heritage of Europe (already mentioned) and Heritage Community. I will briefly explain each one of them in order to understood the complete framework of the concept of the common heritage of peoples as set in the Council of Europe legal environment. As said cultural heritage is connected with cultural rights defined by Fribourg Declaration on Cultural Rights as: ‘right to identity and cultural heritage; right to identification with the cultural community of his choice (= reference to cultural communities); right to access and participation in cultural life; Right to education and training; Right to communication and Information; right to participation in the cultural policies and cooperation (= right to cultural cooperation).’ As we can reed Fribourg convention cultural rights are consisted of cultural heritage and right of identification, all this is important to understand the cultural heritage of Europe. Heritage community is on the other hand is defined in the Florence Convention as ‘a heritage community consists of people who value specific aspects of cultural heritage which they wish, within the framework of public action, to sustain and transmit to future generations.’ Also, the important part of the Convention is declaration that the people ‘exercise of the right to cultural heritage may be subject only to those restrictions which are necessary in a democratic society for the protection of the public interest and the rights and freedoms of others. To conclude, cultural rights and cultural heritage are so important to every nation and union of nations as a community that only protection of public interests and protection of rights and freedoms of other could pose some restrictions on them. This is very important to mention as these provisions should be treated as the soft law but even more as a pilar stone for the understanding what Europe and European values and legal heritage are. Also, individual freedoms, sometimes referred as individual civil liberties are one of the characteristics of liberal democracies which consist of both, individual rights and individual responsibilities which are both part of the same coin. Those are essential to democratic society but exercising those rights does not mean that person can do whatever he/she wants. The Council of Europe’s European Convention of Human Rights is primarily focused on individual freedoms and liberties and therefore understanding the nature of those rights would be primarily important for the understanding how the European Court of Human Rights operate and what it really protects. If we examine the ECHR, we will be very well aware that individual freedoms are corner stone of the Council of Europe central convention. It is important to underline those individual freedoms are not only placed in the most important convention of the Council of Europe, but rather in all European constitutions and sometimes in specific documents which have same constitutional value as constitution itself like it is an example with Czech Republic or United Kingdom.

We have to mention Margin of Appreciation Debate which also shows that idea od united Europe does not mean that unique history of each member state is vaporized. Procedure of law’s application can be different but with constant evolution in the direction of unification. Of course, that reverse direction is also possible but less likely or less frequent; it might happen if application and interpretation of specific legal instrument is used by applying different legal argumentation by numerous member countries of the international organization in this case Council of Europe. Although this is not maybe clear on the first sight, European Court of Human Rights acknowledges differences between states in their cultural and legal heritage. Typical example of this is Margin of Appreciation doctrine which is used by the Court which is ancient British doctrine which allows the judges to use specific legal and cultural specificities of particular counties by which they are able to bring different conclusions on the same facts for each particular county. This means that the European Court the doctrine which allows the court to somehow treat differently similar cases from different countries; the Court takes into account various sociological, historical and ontological perspectives when discussing cases from various countries. This is important for preserving the legal (moral) values of particular countries: cases from Central and Southeastern Europe bear different substance than for instance those from the North or partially from the West of Europe: for instance, Family law is deeply rooted in values and traditions of particular countries. It shows that even if the rule of law is a well-respected concept that there are differences in its application.

Typical example is application of the Article 9 of the European Convention on Human Rights which deals with freedom of thought, conscience and religion in which the Court by applying Margin of Appreciation Doctrine comes to different solutions for different countries. Court is quite sensitive to those issues and if someone looks aside it might conclude that there are different laws applied in various circumstances, but it is not it is the same law within the boundaries of the margin of appreciation doctrine. For instance, in the famous case of Lautsi v. Italy, Court decided that the crucifix may remain in the classroom because its existence does not harm anyone and that its position on the wall in Italian classroom is in line with Italian history and legal culture, but at the same time in SAS v France, the same Court decides that wearing religious garment or attire is unexpectable in the French classroom which have their walls naked from religious symbols since French republic has its foundations rooted in the principles of the French revolution, similar was with cases of Dhalab v Switzerland and Eweida v. United Kingdom. Some might ask how this is possible? Is it inequality? and is it contrary to the application of the rule of law – same rule for everyone and everywhere? The answer is clear: No. It does not produce inequality in the European legal landscape it is just recognition of different interpretation of the same legal standard. It is always important to understand constitutional frameworks of particular countries and those have to be taken into account: international organization is not and should not be a place where opinions of specific group matter more than the opinion of others but rather dynamic place where discussions and common good finds its way towards applicable options which will then be satisfying for all.

It is also important to understand that the foundations of Europe are still visible through the development of the European Union and the Council of Europe. Often people forget extraordinary man Robert Schuman, a Catholic venerable, who implemented his Christian and humanistic dimension into the foundation of the European Union. He believed in unity and peace. Some scholars say that the flag of the European Union resembles on the crown of the Stars of St. Mary and/or on duality of religious and secular. But in any case, Europe belongs to all who live on its territory and that includes many religions, cultures and customs. It is also important to say that there are numerous international treaties which contain words on culture and specificities of nations who live on the European soil. The Treaty of London lies on the pursuit of peace which is based on justice and international cooperation and dedication to spiritual and moral values which are common heritage of the Nations of Europe, on individual freedom, political liberty and on the rule of law.

All documents like The Treaty of London, Florence, Fribourg, and Faro Conventions deal with various issues which show that particularities have to be respected: particularities made an organism. Common heritage of Europe means that the countries are aware of European landscape which shapes local culture and that it is basic component of European natural and cultural landscape which give value to human flourishing and consolidate the European identity. Therefore, the European culture could not live without local national cultures which are among others products of the environment in which we all live – products of our geography. Also, as the Faro Convention which describes European cultural heritage. The culture of Europe is a combination of different cultures which exist on this soil, and what is important? The fact that those cultures respect and contribute to each other. And culture of Europe is its West, Center and East. The European court for human rights, as I have said, is important support of specific circumstances in particular countries. In addition to what has been said previously, the same Convention on Human Rights is applied but with different inputs from various different countries. The application of the Convention, as previously said is different if the case comes from, for instance, from Malta or Sweden. Fribourg Convention clearly states that cultural rights are consisted of heritage and law on self-determination (identification) and that have to include sufficient level of respect and understandings of particularities in all directions. This is something which should be respected by all states. Of course, there are bodies of the Council of Europe which give additional value to harmonization and respect of specific characteristic of member states, and some of them are not even geographically part of Europe, but part of Western Asia and counties like Armenia, Azerbaijan and Georgia. The European Convention on Human Rights is open to signatories which are not part of European continent. The Venice Commission which deals with issues of democracy and Human Rights, GRECO as anti-corruption body and CEPEJ - Commission for the Efficiency of Justice can, by its activities and production through so-called soft law, make significant influence on the states to run coherent European policy which respect its differences.


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