Article I-52 of the Charter of Fundamental Rights which has been incorporated into the proposed EU Constitution, seeks to limit the rights granted therein "in the general interests of the Union".

The limitation of all human rights in the Charter of Fundamental Rights is illustrated in its approach to the death penalty. Article II-2(2) - which purports to abolish the death penalty - is in clear breach of Protocol No. 13 ECHR (European Court of Human Rights) although that Protocol has been adopted individually by the member states. Any doubt about the intent of Article II-2(2) is removed by consulting the corresponding Explanation to the Article. It expressly relies on Protocol 6 ECHR, which allows the death penalty in time of or threat of war, instead of the alternative Protocol 13 (which provides a total ban). In the context of the developing military role of the EU, this derogation may become highly significant. The corporate accession to the ECHR by the EU (without ratifying Protocol 13) would imply that the death penalty would continue to be available to it, e.g. in a future military court under EU control, despite the unanimous avowal by the member states in ratifying Protocol 13 that they have totally abolished the death penalty.

Protocol 13 entered into force on 1st July 2003. It prohibits all exceptions to the abolition of the death penalty. The 4th Recital says: "The member States of the Council of Europe signatory hereto, Being resolved to take the final step in order to abolish the death penalty in all circumstances, Have agreed as follows ..."

Ref: Brendan O'Connor in European Journal 10:9.