Seminar and Workshop on Advanced Issues in Law and Policy of the European Union, nafta and the wto

2 The Paradox of the EU’s Human Rights Policies

The human rights policies of the European Union are beset by a paradox.⁹ On the one hand, the Union is a staunch defender of human rights in both its internal and external affairs. On the other hand, it lacks a comprehensive or coherent policy at either level and fundamental doubts persist as to whether the institutions of the Union possess adequate legal competence in relation to a wide range of human rights issues arising within the framework of Community policies.

A The Positive Side of the Balance Sheet

On the positive side of the balance sheet, a strong commitment to human rights is one of the principal characteristics of the European Union. The Amsterdam Treaty proclaims that ‘the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law’.¹⁰ By the same token, any Member State violating human rights in a ‘serious and persistent’ way can lose its rights under the Treaty.¹¹ The European Court of Justice has long required the Community to respect fundamental rights and the European Council has issued several major statements emphasizing the importance of respect for human rights.¹² Similarly, the Community has taken notable initiatives in a wide range of fields from gender equality to racism and xenophobia.

Thus, in diverse ways, the European Union has acknowledged that it has an important role to play in promoting respect for the human rights of its citizens and of all others resident within the Union and of ensuring that those rights are fully respected. This is so despite the fact that the Member States are, and will remain, the principal guardians of human rights within their own territories.

Equally, the Union is a powerful and uniquely representative actor on the international scene. It has the responsibility, reinforced by the capacity and financial resources, to influence significantly the human rights policies of other states as well as those of international organizations. In recognition of this responsibility it has insisted that states seeking admission to the Union must satisfy strict human rights requirements.¹³ Other governments wishing to enter into cooperation agreements with the Union, or to receive aid or benefit from trade preferences, must give an undertaking to respect human rights. If that undertaking is breached, serious consequences can ensue.¹⁴ It has adopted a number of declarations underlining the importance of human rights in its external relations and it has given substance to this approach by funding a wide range of development cooperation initiatives with major human rights components.¹⁵ It has sought to strengthen the capacity of civil society in many countries to protect human rights,¹⁶ has funded election monitoring and human rights monitoring, and has played an active role in support of human rights in multilateral contexts.

B The Other Side of the Balance Sheet

Nevertheless, despite the frequency of statements underlining the importance of human rights and the existence of a variety of significant individual policy initiatives, the European Union lacks a fully-fledged human rights policy. This is true both in relation to its internal policies and, albeit to a lesser extent, its external policies. Some of these shortcomings are noted below. To date, in relation to its internal human rights situation, the institutions of the Community have succeeded in cobbling together a makeshift policy which has been barely adequate, but by no means sufficient. In the future, this approach will be unsustainable, increasingly ineffective and ultimately self-defeating. In relation to its external policies, the irony is that the Union has, by virtue of its emphasis upon human rights in its relations with other states and its ringing endorsements of the universality and indivisibility of human rights, highlighted the incongruity and indefensibility of combining an active external policy stance with what in some areas comes close to an abdication of internal responsibility. At the end of the day, the Union can only achieve the leadership role to which it aspires through the example it sets to its partners and other states. Leading by example should become the leitmotif of a new European Union human rights policy.

The paradoxical nature of the Union’s human rights policies may be illustrated by reference to two events of recent months. The first is the final statement adopted by the European Council at Cardiff in June 1998. Its content reveals the ease with which human rights can be rendered almost invisible in major declarations of EU policy. The phrase ‘human rights’ is used once in the space of 97 paragraphs, spread over 16 pages. In that reference, the Council ‘calls on Indonesia to respect human rights’ in relation to East Timor. Even the word ‘rights’ appears only twice in the entire document. The first time it is used to laud President Nelson Mandela ‘as an example to champions of civil rights’. The second reference is to the ‘single market rights and opportunities’ of ‘citizens and business’. It is true that the virtual absence of references to human rights stands in contrast to the Council’s Declaration at Luxembourg in December 1997 when it marked the beginning of the year of the 50th anniversary of the Universal Declaration of Human Rights with a 12 paragraph Annex.¹⁷ The latter, however, focused almost exclusively on the external relations dimensions of the issue. In any case, human rights should be a consistent and prominent theme in all such declarations.

The second event was a ruling by the European Court of Justice on 12 May 1998,¹⁸ which threw into doubt the legal basis for much of the funding provided by the Commission for human rights and democracy-related activities. Among the results of the Judgment are the freezing of a very considerable number of projects, the urgent need to consider draft regulations concerning the EU’s external human rights policies, and increased awareness of the entirely unsatisfactory legal basis for many of the activities needed to monitor and promote respect for human rights within the Union.

The time has come, therefore, for the Union to meet its responsibilities and to develop a comprehensive, coherent, balanced and forward-looking human rights policy. This article amplifies the considerations which such a policy should take into account.