关于做好抗震、抢险、救灾工作的紧急通知

上一篇: 国家发展改革委关于重新核定认可收费标准有关问题的通知
下一篇: 国家发展改革委关于做好境外投资项目下放核准权限工作的通知

The Draft Constitution and Human Rights Protection in European Union

周大勇 (Zhou,Dayong)

1 the general introduction of the draft constitution in aspect of the human rights
2 short review of the human rights protection in European Union
3 the new points in aspect of human rights in the draft constitution
3.1 common values
3.2 incorporation of the Charter of fundamental rights
3.3 other changes could affect the human rights
4 arisen questions
4.1 the protection different from under the Convention
4.2 the two courts system and its application
5 conclusions in a historical view




1 general introduction of the draft constitution in aspect of the human rights

“Conscious that Europe is a continent that has brought forth civilization; That its inhabitants, arriving in successive waves from earliest times, have gradually developed the values underlying humanism: equality of persons, freedom, respect for reason” Extract from the preamble to the draft Constitution

In past 16 years, the European Union (EU hereafter) has marked itself through a series of changes. From The Single European Act, in which the Union committed itself to create a single market and at the same time establish on its territory the freedom of movement of people, goods, services as well as capital, to Maastricht Treaty, which brought the Union into reality and led to common foreign policy and cooperation in the area of justice and internal affairs as a higher level cooperation among Member States. Then the following Amsterdam (1997) and Nice (2001) Treaties, strengthened cooperation in foreign and security policy and placed Justice and Home Affairs matters and established the frame for the Union as a legitimate institution, in which people from different nations integrated in a large region would have common historical direction and splendid future before them. Just before the door of enlargement of the Union, it was argued that the Union has to improve democracy and transparency as well as efficiency, in order to outlines the EU’s purpose and competence clearly and streamline structures so as to prevent paralysis, therefore a new constitution for the Union is determined to replace the EU's series of key treaties in passed over the last 50 years as a single document .

Under leading of former French President and master draftsman Valéry Giscard d'Estaing, the European Convention set about its work of drafting the European Union's first ever full-fledged constitution. With the convention's work completed, the draft must now be finalized by an Intergovernmental Conference of European leaders that is expected to complete deliberations by the end of the 2003. As far as our topic is concerned, noticeably modifications come out in the constitution contract, first of all, the incorporation of the Charter of Fundamental Rights, which we will discuss later. In the beginning it is meaningful to consider the statues of the draft constitution in the progress course of the Union. The Union desires to bring peace and prosperity, to promote economic and social progress through continuously integrating market and expanding freedom under light of united institution and social systems . These goals, however, are the foundation of development and protection of human rights . That means, if we regard human rights as a series right which realized at first in peaceful and law-ruling society, then the Union has already kept on entrenching to appreciate these goal from beginning on, and now by means of perusing such goal in a larger region through enlargement, the EU’s influence extent to broader area and more people.

The draft constitution then in such context should be viewed as another historical phase in the process. Because the promoting of well-being and fortune of people depend not only on the development of economic situation and adding some single freedom clauses into the governmental documents, but also upon the entire politic system and background in which we live. Without governing based on democratic and effective institutional structure, and especially a ripe legislation and judiciary mechanism, the realization and protection of human rights could only be on the paper. This is also one of the motive caused the Declaration on the future of the European Union which committed the Union to becoming more democratic, more transparent and effective, in order to pave the way for a Constitution in response to the expectations of the people of Europe . In this perspective, one shall recognize the Constitution as a moving forward step of the whole EU institutionalization targeting its goal, so that to discuss the Constitution in connection with the human right protection, it is helpful to review the human rights protection in Europe and, especially in EU.

2 short review of the human rights protection in European Union

The protection of human rights has been internationally come to life in the Universal Declaration of Human Rights in 1948 (UDHR) with reorganization of disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind and respect for inherent dignity as well as the equal rights of all members of the human. This declaration states explicitly that the rights and freedoms of humans have to be guaranteed without distinction and destruction by any group, state or person. These principles were broadly accepted by European countries, considering the origin of the EU (EC) and the historical separation in Europe after WWII, we denote only the contracting countries of European Community.

For the Member States of EC, the Council of Europe has been up to now the most important instrument, which established in 1949 as a result of the Congress of Europe in The Hague , and took for the basic of the human rights protection. The Council accepted the principles of Universal Declaration of Human Rights and integrated it into The European Convention for the Protection of Human Rights (the Convention hereafter), which and its 12 Protocols turned out to be the significant resource for Human Rights protection in Europe. Because of the existence of the Convention, the other two organizations established in the same age aftermath of the Second World War, i.e. OEEC and the European Communities didn’t include relevant clauses for Human Rights protection into their founding treaties. Since it was agreed at that time, the Council of Europe would focus on the protection of human rights, fundamental freedoms and democratic values, whereas the OECD and the European Communities were to be concerned with the economic restoration of Europe. The reason of separate organizations was based on a view to avoiding economic excuses for future inhumanity. Another reason came from the thought, which believed that the process of economic integration set forth in the Community Treaties could not lead to a violation of human rights. Furthermore, the original Member States in the Treaty of Rome feared, that the inclusion of a "bill of rights" in the Treaty might have brought about an undesirable expansion of Community powers, since it could lead Community institutions to interpret their powers as extending to anything not explicitly prohibited by the enumerated guarantees.

Under the regime of Council of Europe, a lots of achievement of human rights improvement has been reached , yet along with the development and expansion of EU, another mechanism on protection of human rights which does not totally rely on the Council of Europe has derived out on one hand, on the other hand being lack of provisions ruling human rights protection in the Treaty establishing EC did not prevent the EC and the later European Union from providing care for the protection against the violations on human rights. Naturally, how could a swelling supranational organization as EC, which has been continually strengthening its power in all social aspects, does not involve in human rights issues especially when the consciousness of human rights nowadays become more significant both in international and national stages? Regarding to EU, The protection system has been formed in three aspects.

First of all, the legislation in the Member States of EU. Since there were no Member States of EU (EC) which accedes to the Community without being a member of the Council of Europe, and according to the Convention, it impose obligations on the Member States that they should ensure that the internal laws and practices comply with the human rights standards set out in the instruments. Very member states in EU have recognize the principles derived from the Convention and incorporated them somehow into national laws, most importantly, provided constitutive protection as the basic legal resource for human rights protection. For example in Germany, Basic Law (Grundgesetz) Art 1 to 19 deliver explicit provisions even beyond the Convention; the same case as Part VIII (§71-85) in Constitution of Denmark ; in Britain the Act of Human Rights came into force on 2 October 2000 steers extending a ways, in which the Convention can be used before domestic courts. Certainly, according to the classic human rights lessons, the basic protection of human rights could only be afforded at the national level through national legislation and excise of authoritative power.

Secondly, the institutions and legislation at the EU level acts also with high respect to the human rights protection. The EU has showed its commitment to human rights and fundamental freedoms and has explicitly confirmed the EU's attachment to fundamental social rights ever since its establishment.

The Amsterdam Treaty established procedures intended to secure their protection. It was ascertained, as a general principle, that the European Union should respect human rights and fundamental freedoms, upon which the Union is founded. For the first time a procedure is introduced, according to which severe and continuing violations of Fundamental Rights can lead to suspension of voting and other rights of a member state, if the Union determined the existence of a serious and persistent breach of these principles by that Member State. As to the Candidate countries, they should also respect these principles to join the Union. Furthermore, It has also given the European Court of Justice the power to ensure respect of fundamental rights and freedoms by the European institutions. In accordance with the inner requirement for the implementation of development cooperation operations, in order to reach objective of developing and consolidating democracy, EU also need its rule respecting for human rights. Such cases we have are for instance the EU Council’s regulation on human rights, Council Regulation (EC) No 975/199 and Council Regulation (EC) No 976/1999 for example, are aimed at providing technical and financial aid for operations to promote and protect of civil and political rights as well as economic, social and cultural rights etc.

Likewise, at their meeting in Cologne in June 1999, EU leaders declared that in respect to the current stage of progress of the European Union, the fundamental rights applicable at Union level should be pushed forward, namely be consolidated in a Charter and thereby made more evident. They argued, that the legal resources of human rights protection come from not only the European Convention of Human Right, but also from various international conventions drawn up by the Council of Europe as well as the United Nations and the International Labor Organization, they also include EU treaties themselves and from the case law of the European Court of Justice. As a result, a Charter of Fundamental Rights of the European Union (the Charter hereinafter) was sketch out, which highlighted the EU’s respect for human rights, for fundamental freedoms and for the principle of democracy through listing more rights a more precise definition of the common values comparing the early documents including the Convention. We will continue to concentrate on the Charter in point 3 since it has been integrated in the draft Constitution as an outstanding achievement.

Finally, the opinion and case-law of European Court of Justice (ECJ hereafter) also have immense impact on the establishment of the instrument of human rights protection within EU.

Although the jurisprudence developed by the ECJ recognizes the Convention as the standard-setter in cases in which the Court has to consider and decide a human rights issue, since there were no relevant legislation existed in the frame of the Community, the ECJ furnish itself power in this aspect by means of case-law. Earlier in 1974, the ECJ first made reference to the ECHR in the Nold judgment, in which the ECJ emphasized its commitment to fundamental human rights based on the constitutional traditions of the Member States’ fundamental rights form an integral part of the general principles of law which the Court enforces. In assuring the protection of such rights, the Court is required to base itself on the constitutional traditions common to the Member States and therefore could not allow measures, which are incompatible with the fundamental rights recognized and guaranteed by the constitutions of such States. The ECJ declared, that the international treaties on the protection of human rights in which the Member States have cooperated or to which they have adhered could also supply indications which may be taken into account within the framework of Community law.

That implied, even without clear regulations in the treaties, the remedy against violation on human rights could also be provided within the framework of the Community in respect for the common traditions applied to the Member States, and in connection with we have mentioned about the Member States’ above, the principles and resource applied to the Member States derived from the Council of Europe. Thus a EU standard could be established by transform a rating comparison of the members’ legal systems to the case-law in ECJ in respect for human rights.
财政部 国家发展和改革委员会 教育部等


关于扩大中等职业学校免学费政策覆盖范围的通知

财教〔2010〕345号


　　各省、自治区、直辖市、计划单列市财政厅（局）、发展改革委、教育厅（局、教委）、人力资源社会保障厅（局），新疆生产建设兵团财务局、发展改革委、教育局、人力资源社会保障局：
　　为贯彻落实《国家中长期教育改革和发展规划纲要（2010-2020年）》精神，进一步增强中等职业教育吸引力，促进教育公平，经研究决定，从2010年秋季学期起，将中等职业学校城市家庭经济困难学生纳入免学费政策范围。为做好中等职业学校城市家庭经济困难学生免学费工作，现将有关要求通知如下：
　　从2010年秋季学期起，对公办中等职业学校全日制正式学籍一、二、三年级在校生中城市家庭经济困难学生免除学费（艺术类相关表演专业学生除外）。享受免学费政策的城市家庭经济困难学生分地区按以下比例确定：西部地区按在校城市学生的15%确定；中部地区按在校城市学生的10%确定；东部地区按在校城市学生的5%确定。中央财政参照上述比例安排中央补助资金。各地可根据实际，合理确定行政区域内城市家庭经济困难学生的比例。
　　免学费标准、免学费资金补助方式、中央与地方分担比例以及对民办学校符合免学费条件学生的补助政策，按照《财政部 国家发展改革委 教育部 人力资源社会保障部关于中等职业学校农村家庭经济困难学生和涉农专业学生免学费工作的意见》（财教〔2009〕442号）有关规定执行。
　　地方财政、发展改革、教育和人力资源社会保障部门要切实加强对中等职业教育免学费工作的组织领导，进一步完善本地区中等职业学校免学费工作方案，确保免学费政策全面落实到位。各省级财政要统筹安排中央补助资金和地方应分担的资金，确保免学费补助资金落实到位。职业教育行政管理部门要进一步加强对中等职业学校的管理，完善中等职业学校学生信息管理系统，做好免学费对象的认定工作。中等职业学校要严格执行《中等职业学校管理规程》（教职成〔2010〕6号）、《中等职业学校学生学籍管理办法》（教职成〔2010〕7号）以及技工学校相关规定，加强免学费工作管理，保证学生基本信息的准确和免学费资金的规范使用。
　　各级财政、价格、教育、人力资源社会保障部门要与审计、监察等有关部门密切合作，齐抓共管，加强对免学费政策落实情况的监督检查。对虚报学生人数，骗取国家补助资金等违规行为，要按照《财政违法行为处罚处分条例》（国务院令第427号）等有关规定严肃处理，并追究相关学校领导的责任。　　
　　　　　　　　　　　　　　　　　　　　　　　　　财政部　国家发展改革委　
　　　　　　　　　　　　　　　　　　　　　　　　教育部　人力资源社会保障部　　
　　　　　　　　　　　　　　　　　　　　　　　　　　二○一○年九月十四日