The EU has in the last decade established a strong and unequivocal human rights mandate. It feels responsible for making that mandate effective and so promote sustainable development, peace and stability in the world. It is in a position to make a difference, and that is the ambition sounding through the communication. This is a good moment to see where we stand in realizing that ambition.
The following traces the evolving EU human rights policy on different levels and makes proposals in a number of key areas:
· Human rights in the larger context: the conceptual framework.
· Human rights within the EU: a matter of accountability and credibility.
· Asylum: a cornerstone of international human rights protection at stake.
· Human rights in third countries: the need to balance dialogue and cooperation with political pressure, to give substance to the human rights clause, to establish coherence and continuity in external relations.
· Human rights in the enlargement process: a unique opportunity.
· Human rights institutionally: the adequacy of structures, capabilities and expertise, the frameworks for policy dialogue and cooperation between institutions, member states and civil society, the parliamentary role.
The conceptual framework
Increasingly the human rights concept is being extended and linked to the larger context of interdependence with other primary domains of EU activity and ambition: development, conflict prevention and democratisation, but also trade, environment and social development. The broadened scope of the EU’s human rights endeavour, positive in itself, must however not lose sight of the need to forcefully address gross violations. The challenge is how to "mainstream" human rights into other areas of activity without losing focus.
A welcome development in this respect is the growing recognition and initiative to establish clear links with the UN human rights standards and mechanisms, as reflected in the report on conflict prevention presented to the Nice summit by the High Representative for CFSP and the Commission, and now in the Commission communication on human rights.
A comprehensive EU strategy on human rights requires consistency and coherence between the EU’s external and internal approaches to human rights. This has been stressed during the first Human Rights Forum, organised in December 1999 under the Finnish Presidency, and reiterated at many occasions since. The internal dimension is all the more important for an EU that aspires to broaden its scope and its membership.
Human rights within the EU
The adoption of the European Charter of fundamental rights last year signalled increasing recognition of the internal human rights dimension. In spite of its caveats concerning the rights of citizens of third states residing in the EU and concerning the scope of social rights, the Charter provides an important new source of reference for human rights protection by the EU. However no progress has been made regarding the key issue of international accountability of the EU human rights system as renewed calls for the EU to accede to the European Convention on Human Rights and the Revised European Social Charter remained unanswered.
Moreover, the Charter underlines the need for the EU and for member states individually to address internal human rights problems more systematically and to provide for proper accountability. A welcome development in this respect was the adoption of the anti-discrimination legislation. On the other hand, the speed with which the Council adopted guidelines on torture in relation to third countries starkly contrasted with its reluctance to take up the challenge to deal with problems of ill-treatment and torture within the own borders.
The development of a comprehensive human rights policy integrating internal and external dimensions will be important to help resolve this dilemma. At present there is no forum to develp such a comprehensive approach. The EU human rights debate is the exclusive domain of external relations, and there has so far not been a serious attempt to bring the relevant circuits of justice and home affairs into a more inclusive debate. It is time for this to be remedied, and to arrange for a regular (annual) meeting to assess implementation of the Charter and to help develop a truly comprehensive EU human rights policy.
Asylum
The Treaty of Amsterdam has brought asylum policy into the first pillar. An ambitious program to implement that policy was set by the Tampere decisions on the area of freedom, security and justice. Despite solemn assurances of full and inclusive application of the Geneva Convention, the proposals put forward towards the asylum regime to be established at EU level are by no means fully in compliance with international human rights and refugee law. This refers especially to the obstacles for refugees to gain access to its territory, and to fair and satisfactory asylum procedures.
There is indeed an increasing cause for concern regarding the erosion of human rights standards in the area of asylum. A first-ever package of legally binding EU asylum and immigration measures was presented to the Justice and Home Affairs Council meeting end May 2001. The thrust of the immigration measures is to prevent access to EU territory and this is at the expense of protection of refugees. The one measure in the field of asylum, on temporary protection, may in fact contravene international standards for the protection of refugees, through the adoption of a different, lesser status.
At the same time, the stated ambition of the High Level Working Group on Asylum and Migration to address the root causes of migration has been thwarted by that same overriding drive to control rather than protect, while so far largely failing to link in effective policies to deal with the human rights problems in the countries of origin.
The overriding desire to curb illegal immigration leads the EU on the dangerous path of creating its own "version" of international law governing asylum and refugees. This flawed process of harmonisation, driven by self-interest, and accompanied by the Geneva Convention now being called openly into question by some member states, risks to undermine the integrity of the internationally agreed regime for the protection of refugees. The refugee issue is a human rights issue, and the refugee protection regime is a cornerstone of international human rights protection. While the UNHCR in its 50th anniversary year is attempting to reaffirm the Geneva Convention, the EU is in fact setting the worst possible example to the rest of the world where the vast majority of refugees find elementary protection.
Human rights in third countries
The adoption last April of guidelines for the EU’s policy towards third countries on torture and other cruel, inhuman or degrading treatment or punishment offers a direct and systematic method to deal with this persistent problem in its external relations. It is a very significant step in the development of a coherent and effective EU human rights policy as it establishes a methodology to act concretely, to put human rights into practice. There is every reason to believe that the adoption of guidelines on other specific human rights issues might result in an increased consistency of the EU human rights policy towards third countries.
The recently concluded 57th session of the UN Commission on Human Rights (CHR) once again provided an important opportunity to address ongoing human rights and humanitarian law violations world wide and request active involvement by appropriate UN mechanisms. It also raised questions about the way the EU relates its - very considerable - efforts in the CHR to the ongoing human rights activities in external relations throughout the year. There is a need to resolve the disconnection which is apparent between the two at different stages and levels, and to establish a cycle of continuity that incorporates CHR initiatives and outcome into CFSP. Specifically, there should be follow-up at Working Group, Political and Security Committee and Council level to EU sponsored resolutions and statements. The EU should incorporate initiatives, concerns and recommendations expressed through EU sponsored and supported initiatives during the CHR into its ongoing political dialogue with third countries throughout the year.
Enlargement
The enlargement process offers a very specific context for pursuing human rights objectives in external relations. The twelve candidate countries had been found to fulfil the political criteria in a sufficient manner to allow for the negotiations to start; nevertheless most were and still are considered to be in need of substantial improvements on a range of issues including human rights. The acceptance of Turkey late 1999 as a (pre-)candidate for accession was very significant in that it brought a country into the enlargement process at a stage where it still shows a consistent pattern of gross human rights violations. Whatever may have been thought of the appropriateness of this move, it offers a new perspective on pursuing structural human rights objectives in Turkey, as well as concrete leverage to push for change on pressing problems like torture and freedom of expression.
Institutional aspects
Looking at the institutional side, the High Representative for CFSP largely failed so far to incorporate a clear human rights perspective in developing his role and priorities for action. The lack of a human rights profile for this function is a missed opportunity and does not reflect the stated ambition to place human rights at the core of the EU’s endeavours.
While the Council represented through the Presidency tends to display more visibility on human rights in its public declarations, it shows at the same time a lack of coherence and continuity when it comes to applying human rights policies in concrete situations. The need to operate with consensus often results in the lowest common denominator, especially regarding countries where major political, security and economic interests are at stake. The rotating presidency causes a measure of inconsistency and discontinuity in external relations which is to be deplored, particularly in the field of human rights where consistency and continuity are vital to be effective in confronting serious violations.
The European Parliament has lost its traditional leading role on human rights. With the enactment of a clear human rights mandate for the EU it has become necessary for the EP to transform its role more into one of scrutiny and policy orientation regarding the strategies and activities of the Council and the Commission in the field of human rights. Although retaining a very valuable activist profile in specific cases and instances of human rights violations, the Parliament has failed to confront the challenge of developing a proper accountability role. Despite efforts to formulate a clearer human rights perspective on development cooperation, the Parliament’s structures have singularly failed to deal with human rights in a manner that reflects adequately the fact that it is now a major issue cutting across different key areas of EU activity.
Having been confronted by the human rights NGOs with this fundamental critique, signs are that these concerns will be taken seriously, as reflected in the European Parliament’s 2001 annual reports on human rights in the world and within the EU. In particular the new methodology in the report on human rights in the EU, analysing the member states’ as well as the EU’s performance against key articles of the newly adopted Charter, offers an interesting perspective for the European Parliament to develop and enhance its proper role, and to redefine parliamentary responsibility in the area of human rights. At the same time the Parliament gives an important signal to the Council and the Commission regarding the need for the EU human rights policy to address internal problems as well as those in third countries.
The European Commission meanwhile embarked upon a thorough reform of external assistance, which yet again served to underline the need for a clear policy framework. Over the past year it issued a series of communications, on development, elections and conflict prevention, and has now finally delivered on the longstanding promise of a new policy document on human rights. Arguably the most difficult of all, by putting human rights at the heart of external policy, this is a key instrument to direct the EU’s efforts to promote democracy, fight poverty, and prevent conflict.
Beyond 2001: a new perspective?
The vision, analysis and ambition contained in the Commission’s May 2001 communication should give fresh impetus to focus on the essential question: how to be more effective. Its recommendations at the same time highlight the main weaknesses in the system. Its strong advocacy of coherence and consistency in support of human rights amongst EU institutions and member states constitutes a major challenge to the Council to overcome the evident institutional barriers. Its emphasis on dialogue and cooperation and on mainstreaming human rights raises questions about the strength of purpose to exert real political pressure to stop and prevent gross violations, and to give more substance to the human rights clauses in EC trade and association agreements. Its ambition to infuse all external assistance with an effective human rights focus, and to engage in systematic monitoring and evaluation on the basis of country strategies, is very positive but it must be feared that it does not correspond with the available capacities and the level of human rights expertise across all institutions. Its passing reference to human rights problems within the EU raises the question of credibility and legitimacy, not least towards the accession countries. The asylum issue raises fundamental questions about the integrity of the EU’s human rights aspirations.
However, the vision, the analysis and the ambition should serve as an incentive to enter into debate on these questions, and for the Council to rise up to the challenge. To help shape that debate, we offer the following overall observations and recommendations:
1. In order to ensure consistency between the CFSP and the orientations proposed in the Commission communication on human rights, our organisations suggest that the Council and the Commission adopt the text of the communication as a joint declaration, to be approved by the European Parliament. That procedure was followed by the EU for the adoption of the joint declaration on the EU development policy last autumn.
2. The EU should not only place human rights at the heart of its external policy, but forge an integral vision to inspire its human rights policy. To that end, the Commission strategy should be broadened by Council and Commission, with the support of the European Parliament, into an overall EU strategy on human rights, in which consistency and coherence between the institutions and the link to UN standards and mechanisms are central elements. It would be appropriate for future presidencies to incorporate human rights at the highest priority level to reflect such a shared ambition.
3. The EU should give more systematic attention to promoting respect for the European Charter of fundamental rights and to establishing systematic monitoring and evaluation, while member states should ensure adequate mechanisms to effectively address instances of violations and to eradicate discriminatory practices. In order to help create a proper framework for such development, the EU should organize an annual meeting with participation of Member States, Council, Commission, MEPs and NGOs, with the aim of assessing implementation of the Charter.
4. The EU should accede to the European Convention on Human Rights and the Revised European Social Charter in order to ensure conformity of EU standards with the Council of Europe standards and to ensure external accountability.
5. Mainstreaming human rights into external assistance programs needs to be balanced by forcefully addressing violations in the context of CFSP, in political dialogue in the context of EU agreements with third countries, and in the application of the guidelines on death penalty and torture. In doing so, the EU must seek to give meaningful substance to the human rights clause.
6. The EU must better integrate the efforts in the UN Commission on Human Rights into its external relations throughout the year.
7. The application of the Code of Conduct on Arms Exports must be strengthened.
8. In the enlargement process there is a need to consider whether human rights concerns as reported in the Commission’s annual reports on the countries concerned are adequately reflected in the Accession Partnerships, and in the financial assistance offered in the accession framework.
9. A human rights policy that is underpinned by a system of monitoring and evaluation on the basis of benchmarks and country strategies is a necessary and most welcome new development, but it requires fundamentally different and strengthened capacity and expertise within and shared between the institutions.
At the EU institutional level the structures, systems and capabilities should be reassessed in the perspective of a comprehensive human rights policy:
– to ensure coherence, capacity and expertise across the institutions;
– to enhance the European Parliament’s accountability role and redirect its structures;
– the High Representative for CFSP to develop a more explicit human rights profile;
– to address the need for greater continuity between presidencies.
10. A human rights policy cycle should be developed with the annual report and (bi-)annual forums as anchors.
11. The asylum issue must be seriously addressed with a clear human rights perspective.
Overall, reviewing the efforts and the developments over a broad range of activity, the EU human rights endeavour shows steady progress and sometimes tangible results. In the face of the continuing human rights crisis in the world, however, the question how to be more effective must be put very emphatically. The values are clear, but it is our conviction that the relevance of respect for human rights must be articulated much more forcefully if we are to secure their realisation. The relevance for the victims, first and foremost. But the relevance also for the overarching objectives of rights for all through sustainable development, good governance, conflict prevention and rule of law.
The Commission has made an important contribution. The challenge is to translate it into a comprehensive human rights policy for the EU as a whole. And to ensure that that policy takes full account of four basic requirements:
· A proper balance between cooperation and pressure;
· Integration of the external and internal dimensions;
· Coherence amongst institutions and member states;
· Adequate capacity and expertise.