The importance of the rulings by which the Guantanamo detainees have been given back their fundamental rights by the US Supreme Court has been properly emphasized. However, it is appropriate to add that only the minimum conditions for legality have been reasserted, as a different decision would have represented for the Court an outright suicide. In the same days, in an even more difficult and wrecked situation, Israel's Supreme Court has tried to impose limits on the building of "the Wall" wanted by Sharon. These decisions show how the constitutional courts are today an essential instrument in contrasting the governments' ever more widespread desire to go back to the logic of the medieval Princes, free from observing the law, and to consider fundamental rights as an irksome hindrance.
From the human rights front, then, there is good news. To which there is to add an initiative, taken by the European Parliament, which has impugned before the Court of Justice in Luxemburg the treaty between the European Union and the United States administration over the delivering of personal data of airline passengers travelling to the US, arguing that the treaty infringes on the guarantees for privacy. The American and the European events have many points in common. They show the determination to assert that even in situations of particular gravity, such as those concerning the fight against terrorism, it is not allowed to wipe out fundamental rights. They signal a first attempt at re-establishing the law at a time that appears to be marked by the value of brute force only: an emergency, a "state of exception" cannot set legality to zero. They highlight the point that defence of democracy cannot be carried out with means that negate its very founding principles. Those who oppose a civilized behaviour to barbarism must rejoice.
At the heart of these events there is the US and its pretension not only of imposing its rules unilaterally, but also of completely freeing itself from adhering to the law. The Supreme Court's decisions will not fill the long-held lapse of memory which has cancelled any recollection of the hideous cages in Vietnam and let those in Guantanamo be accepted, but mark the re-emergence of reason and, with it, of right. We are not yet at the full reinstatement of one of the formulas that have inspired the best moments of American history- "the ills of democracy are cured with more democracy"- but a step has been made in the right direction.
Now we have to wait for the specific decisions of the American ordinary courts, and for the ruling of the European Court. But this cannot remain a passive wait; as the title of a book recently published in France, "Droit de l'homme, Combat du si�cle", once more reminds us, Parliaments, civil rights organizations, public opinion of the democratic countries on both shores of the Atlantic should draw from these recent events positive motives for reinforcing their actions in favour of fundamental rights; actions that until yesterday seemed, more than impossible, fruitless, the special feature of isolated minorities with no real influence. And as we are always asked what should be the political role of Europe with regard to the United States, this is a good moment for showing the value of Europe's renewed vocation to be the land of rights, which has just been confirmed by the insertion of the Charter of Fundamental Rights in the Constitution.
There is much insistence in these weeks, after the disappointing compromise that allowed the Constitution to be launched, over what could be its "added value" in spurring the attention and the consensus of the citizens of the Union's twenty five countries. Sure enough, it will not be the alchemy on majorities or the brakings on the road towards a real political unity to arouse the passions of public opinion. Today, a real and common "European public sphere" can be constructed, with difficulty, starting just from the Charter of Rights.
Indeed, a confirmation comes from the United States. The American Civil Liberties Union, perhaps the most important civil-rights association in the world, has stressed the positive aspects of the Supreme Court's decisions. Moreover, a short time ago the same association had strongly criticized the attitude of the European Commission, which was about to accept the request by the US administration, thereby renouncing effective guarantees for the airline passengers. The document concluded with telling words, worth today an even more careful reflection: "As to the protection of privacy, it is us that have to reach for Europe, not the opposite". The attention paid to the European model of rights protection may unite the citizens of the Union and of the United States.
It is not on grounds of anti-Americanism, but for the new pressure brought by public and private institutions even in the US, that today the need arises for an analysis of the different rights-protection models that are being confronted on the global dimension. Even if one wants to credit the thesis of those claiming that economic globalization has suffered a (decisive?) standstill, it is not so for what regards human rights, in particular if one considers two questions. One, technological, points out how our personal data, that is to say our "electronic body", circulate more and more frequently in the Internet, hence by definition in a planet-wide space. The other, political, has to do with the pretension by the present US government to give to its norms an utmost "extraterritorial" character, forcing other countries to subject their juridical systems to them.
If the recent positive signals are to be taken seriously, then, we cannot limit ourselves to expressing our satisfaction. Maybe a glimmer of light can be seen now that lets us put the theme of law and individual rights, inseparable from that of democracy, at the center of our discussion. But who can lead this new process, whose political relevance is undeniable?
The European Union would have the qualifications. I say "would have", because not everybody in Europe makes its actions correspond to its statements on this matter. The British Prime Minister signs the Constitution, but then he arrogantly strives to impede social rights from crossing the Channel, and landing in the country that invented labour-protection laws, trade unions and the Welfare State. The Commission and the Council, i.e. the Eu-government bodies, underwrite the Charter of Fundamental Rights, but then they forget about it in the negotiations with the United States, and do not listen to criticism by the Parliament, the only institution which is rightly taking seriously the common commitment to build a Europe of rights and not of markets only.
We must hope that the new Parliament takes up this heritage, because the Charter of Rights is for sure a stronghold to be kept if we really want to proceed towards a new Europe founded on strong and shared principles. Guantanamo is far away, but the match for rights is also played out here in the European Union, on home territory.