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This chapter addresses the tensions that have arisen, in the Canadian context, between Native peoples’ (or First Nations peoples’) quest for political self-determination and the demand by some Native women that their sexual equality rights be protected through federal law (specifically, Canada’s 1982 Charter of Rights and Freedoms). It discusses the ambivalent relationship Native peoples have had with respect to the language of individual rights, consent, and sexual equality, and reflects on the difficulties this presents for protecting Native women. The chapter also illuminates the potential injustices that can arise both when dominant cultural groups fail to recognize the distinctive self-understandings of minority communities as well as when more powerful members of cultural communities attempt to silence vulnerable and less powerful group members.

This chapter examines the socio‐political genesis of the Canadian Charter of Rights and Freedoms (1982). The first part of the chapter examines the immediate political origins of this instrument. It is found that, as an elite federal political project, the Charter was triggered by a felt need to create a new unifying institution to counter the centrifugal forces of Québécois nationalism. The powerful, largely self‐interested, and prospective nature of this ‘threat to political stability’ trigger encouraged elites to push for a fully constitutional instrument, something which was largely achieved. This trigger also led to a substantive focus on protecting rights integral to building up a pan‐Canadian identity including, most particularly, intra‐provincial anglophone and francophone linguistic rights. The second part of the chapter explores background social pressure for a constitutional bill of rights during this time. It is found that civil libertarians and social equality seekers, both given added political saliency by the continuing postmaterialization of the Canadian economy and society, were critical advocates of a constitutional bill of rights, helping the federal government defeat counter‐mobilization by recalcitrant provincial premiers. In turn, these groups critically structured many of the most important substantive aspects of the Charter. The chapter closes by considering the origins of the aboriginal rights protections and the absence of a right to private property within the Charter.

The EU's Charter of Fundamental Rights is a means to secure the interests and the diverse values of the citizens of Europe. It denotes the EU as a union of citizens and not merely as a common market. It has been argued that rights are detrimental to social integration since the granting of individuals legal rights has atomistic—disintegrative—consequences. However, human rights are not merely abstract principles which, when positivated, secure negative freedom. When they are constitutionalized and turned into fundamental rights they contain a guarantee for equal freedom of all citizens. A charter of fundamental rights is needed to enhance the legal certainty of citizens, reduce arbitrariness, and to institutionalize the right to justification. However, as the principle of popular sovereignty points to a particular society, and human rights point to an ideal republic, only with a cosmopolitan order—democracy at a supranational level—can human rights be properly institutionalized.

The Lisbon Treaty rendered the Charter of Fundamental Rights legally binding, thereby resolving an issue that had been left open since the Charter was initially drafted almost a decade earlier. The Lisbon Treaty in addition imposed an obligation on the EU to join the European Court of Human Rights (ECHR), thereby resolving another issue that had been on the agenda for even longer. The legal and political consequences of these developments will be significant for the EU polity, and are analysed in this chapter. The discussion begins with a brief account of the evolution of fundamental rights in the EC, followed by the genesis and drafting of the Charter. The status accorded to the Charter in the Lisbon Treaty is examined, as is the EU's obligation to accede to the ECHR. The focus then turns to the Charter itself. It provides a brief overview of the content of the Charter, with attention thereafter being on important issues that arise from Title VII, which contains general provisions concerning the interpretation and application of the Charter. The discussion concludes by examining some of the broader implications of the Charter for the profile and legitimacy of judicial review within the EU.

The Lisbon Treaty rendered the Charter of Fundamental Rights legally binding, thereby resolving an issue that had been left open since the Charter was initially drafted almost a decade earlier. The Lisbon Treaty in addition imposed an obligation on the EU to join the European Convention on Human Rights (ECHR), thereby resolving another issue that had been on the agenda for even longer. The legal and political consequences of these developments will be significant for the EU polity, and are analyzed in this chapter. The discussion begins with a brief account of the evolution of fundamental rights in the EC, followed by the genesis and drafting of the Charter. The status accorded to the Charter in the Lisbon Treaty is examined, as is the EU's obligation to accede to the ECHR. The focus then turns to the Charter itself. The chapter provides a brief overview of the overall content of the Charter, with attention thereafter being on important issues that arise from Title VII, which contains general provisions concerning the interpretation and application of the Charter. The discussion concludes by examining some of the broader implications of the Charter for the profile and legitimacy of judicial review within the EU.

It was to the ‘constitutional’ process of the Constitutional and subsequent Lisbon Treaty that many observers looked for an articulation of the EU's social identity. This chapter argues that constitutionalism serves as a problematic vehicle for Europeanization as evidenced by the problematic ratification process in a number of Member States. In any event, different interpretations of constitutionalism — social democratic, postnational pluralism, polyarchic — place different emphases on the relative roles of the EU and Member States in the pursuit of social solidarity. However, it is suggested that the social objectives and values of the Lisbon Treaty together with the Charter of Fundamental Rights provide the basis for the development of a common ethos of solidarity which, nonetheless, looks to domestic institutions for their articulation. The OMC can serve as an appropriate tool to mediate between the EU and national levels.

Explores the possibilities of reconciling the demands of aboriginal peoples in Canada for forms of self‐government that will reflect and protect their distinct cultural traditions with the idea of a shared Canadian citizenship based on equality and political unity. It outlines the long history of the use of Canadian citizenship as a tool of coercive assimilation of First Nations people in Canada and argues that this history justifies considerable wariness on their part toward any project of civic integration. It also considers the question of whether the cultural differences between aboriginal people and other Canadians would warrant some limitations on the application of the Charter of Rights and Freedoms (Canada's Bill of Rights) to aboriginal people. Finally, the chapter argues that a unitary model of citizenship is bound to fail to achieve the civic integration of aboriginal people. It contends that a version of differentiated citizenship that makes dialogue over justice and cultural difference central is the best hope for achieving civic integration, though it is an approach that carries its own risks.

One of the central aspects of the move towards constitutionalizing the EU was the adoption of the Charter of Fundamental Rights. There is an important ‘enlargement dimension’ to the Charter. In particular, it has performed the significant function of reducing certain pathologies of the ‘political conditionality’ process, the use of which was viewed as the application of ‘double standards’ by the EU, as candidate states were measured by tests which the Union refused to apply to its own internal order. It also helped to reduce sovereignty-related anxiety among CEE candidate states and revitalized the ‘values talk’ within the EU as a community of values, not only a community of interests. The inclusion of Article 7, introducing a preventive and sanctioning mechanism into the Treaty on European Union, was largely prompted by the prospect of the eastward enlargement; this best illustrates the way that the enlargement can be seen as an agenda-setter for human rights constitutionalism in the EU.

The European Union structure of rights is now being built upon the preexisting rights practices of the member states, which in turn developed in part in the light of US experience. In Europe, like in the USA, constitutional judicial review has moved on to more and more rights announcing and protecting review by more and more courts over time. Still, European judicial action favoring rights developed by somewhat different routes and continues to exhibit certain features that reflect specifically European heritages and contrast with the US.

Canada has no single document that is customarily described as ‘the constitution’. The closest approximation of such a document is the Constitution Act 1867, which was originally named the British North America Act 1867. This is a statute of the United Kingdom Parliament that created the new Dominion of Canada by uniting three of the colonies of British North America and by providing the for the admission of all the other British North American colonies and territories. This chapter presents an overview of Canada's constitution and discusses its interpretation, the Supreme Court of Canada, separation of powers, problems of constitutional interpretation, interpretation of the residuary clause, interpretation of the Charter of Rights, interpretation of Aboriginal rights, interpretation of judicial independence, sources of interpretation, constitution as statute, legislative history, modes of interpretation, originalism, unwritten constitutional principles, influences on interpretation, dialogue between the Court and legislatures, presumption of constitutionality, and formalism and creativity.

This chapter analyses the role of rights in the Community legal order and their impact on judicial review. It begins with a discussion on the evolution of Community rights, revealing the input from the European Court of Justice (ECJ), the Court of First Instance (CFI), and the Community political organs. It then provides an overview of the concerns voiced about the protection of rights within the Community prior to the Charter of Fundamental Rights of the European Union. The focus shifts to the Charter of Fundamental Rights, its genesis, and content. It concludes by examining the broader relevance of human rights within the EU.

This chapter assesses the impact of the Canadian Charter of Rights on respect for human rights, democratic practices, and political discourses in Canada to see what broader lessons, if any, can be distilled for the United Kingdom. The discussion begins by placing the rights debate within the Canadian context, paying particular attention to how its terms shifted. The different types of rights claim that are being asserted by progressive social movements are discussed, along with what the Supreme Court has done with such claims and the political response to these decisions, the meaning that the Supreme Court has attributed to the freedom of expression, and the salient features of the dominant rights discourse articulated by Canadian courts. The chapter concludes by considering whether there are other mechanisms that may have better success in enhancing human rights and fostering democracy than a justiciable bill of rights.

Uses Michael Walzer's Spheres of Justice as a vehicle for reflecting on the problem of universalism and relativism, with particular attention to the question of the moral relevance of cultural differences between political communities. It celebrates Walzer's contextual approach to theory and defends some of his key insights, using the Override Clause in Canada's Charter of Rights and Freedoms as a way of illustrating the moral importance of differences in political culture. But it also argues that Walzer's assertion that there is a tight link between moral community and political community conflicts with claims that he makes about justice in other societies. The chapter explores the question of whether and how we should judge history. It then uses gender equality and democracy as test cases for exploring how far our moral minimalism should extend and how open we should be to moral and cultural relativism.

This chapter sets out the role of the general principles in the Union legal order and the sources of those principles. A discussion of the anti-discrimination provisions of the European Convention on Human Rights and the Charter of Fundamental Rights precedes an analysis of the general principle of non-discrimination on the grounds of age as developed in the Mangold case law and the more established general principle of non-discrimination on the grounds of sex.

This chapter explores the intersection of consumer protection and human right. Recent years have seen a progressive convergence of fundamental rights and consumer protection in EU law. This chapter argues that fundamental rights, especially if used in combination with other rights can strengthen consumer protection in specific areas. Accordingly, it examines the conceptualisation of consumer protection as a human right, and describes the influence of international human rights on consumer law. It then analyses the scope and the limitation of consumer protection under the Charter of Fundamental Rights. Finally, it assesses the practical significance of constitutional rights and principles on consumer protection in the light of specific cases.

This chapter considers the ‘fit’ of the proposed right to care within the pre-existing EU legal and policy framework. The appropriate body of law and policy aimed at reconciling personal and professional life, which incorporates Treaty provisions, the Charter of Fundamental Rights, secondary legislation and soft law, although substantial, has not been the subject of a particularly smooth transition from closer economic co-operation to greater social integration. Having evolved in a reactive and incremental fashion, the relevant framework lacks the cohesion that might have resulted from a more comprehensive overarching strategy but, nonetheless, provides a more than adequate foundation for the progression of a right to care within European employment law. Interlaced with the analysis of the specific provisions of EU law, is a consideration of the Court of Justice's immense contribution in this respect.

This chapter will catalogue the multiple ways in which human rights penetrate the EU legal order and the different functions they play qua (internalised/’Europeanised’) ‘fundamental rights’, both as standards of validity and as means of interpretation of EU acts. The main preoccupation is to identify the sources of fundamental rights obligations, retrace their origin and overall significance within the EU legal system, and determine the rules relevant to their interpretation and application. The ‘integrated’ or ‘cumulative standards’ approach will be developed against this background. According to this method, the precise level of protection that Charter rights afford will be determined by reference to Articles 52 and 53 thereof, taking the ECHR, other ‘international obligations common to the Member States’ (Recital 5 CFR), and any relevant ‘autonomous requirements’ of EU law into account. Drawing on post-Lisbon case law, it will be shown how any other approach fails to ensure compliance with all relevant requirements simultaneously. This technique will inform assessments in chapters of Part II.