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

C Subsidiarity

Finally, a word about the important principle of subsidiarity, which requires that decisions should always be taken at the level closest to the citizen at which they can be taken effectively, thus creating a presumption in favour of action at the level of the Member States except where exclusive Community competence has already been granted.⁴⁸

It seems sometimes to be assumed that the application of this principle requires that responsibility for matters dealing with human rights should remain at the national level. But this is a false assumption which actually undermines the objectives of the principle. Subsidiarity is not a one-way street.⁴⁹ Consistent with the principle, Community-level action is warranted if the objective in question cannot be adequately achieved by Member State action alone and if the scale or effects of the proposed measures favour Community action. Clearly where the measures in question are taken by the Community within the field of Community law it makes no sense to argue that individual Member States are best placed to ensure not only that those measures do not violate human rights but that they do whatever they can to promote respect for them. Moreover, the guidelines contained in the Protocol on subsidiarity attached to the Amsterdam Treaty correctly emphasize that Community action might be necessitated by various factors, including the transnational dimensions of an issue and the existence of treaty obligations.

Thus a Community human rights policy is not only consistent with the principle of subsidiarity, but is in some measure a necessity required by that principle.

8 The Context of European Union Human Rights Policy

A The Relationship of EU Policy to the Broader Human Rights Setting

An EU human rights policy can neither be conceived nor executed without full account being taken of the broader human rights context in which the Community finds itself. This includes the normative foundations upon which the international and European human rights systems have been constructed as well as the institutional framework which European states have played a key role in establishing in order to ensure that effect is given to the obligations that they and other states have assumed. But while the European Council, as noted earlier, has long appealed to all states to accede to the principal international instruments to which they are not yet party and to ensure ‘more stringent implementation of those instruments’, the fact remains that not all EU Member States have ratified even the six core United Nations instruments.⁵⁰ Two (Belgium and Ireland) have yet to ratify the Convention against Torture; another (Ireland) is not a party to the Convention on the Elimination of All Forms of Racial Discrimination; three (Belgium, France and the United Kingdom) have not ratified the Second Optional Protocol (aiming at the abolition of the death penalty) to the International Covenant on Civil and Political Rights (ICCPR); and one (the United Kingdom) has not yet accepted the individual complaints procedure under the (first) Optional Protocol to the ICCPR. The Council’s call for ‘stringent implementation’ also raises the issue of reporting and the desirability of EU states leading by example. Yet one EU state (Greece) has yet to submit its initial report under one of the UN Covenants which it ratified more than 13 years ago.⁵¹

Similarly, although the 15 Member States of the EU have all been long-term participants in, and very active proponents of, the human rights system established by the Council of Europe, there remain significant and unfortunate gaps in the ratification record of EU states.⁵² Thus, for example:

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  Protocol No. 4 of 1963, which prohibits imprisonment for breach of contract, guarantees freedom of movement and residence and bans collective expulsions, has not been ratified by Spain or the United Kingdom;
  
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  Protocol No. 6 of 1983, abolishing the death penalty, has not been ratified by Belgium, Denmark or the United Kingdom;
  
• 
  Protocol No. 7 of 1984, dealing with rights of lawfully resident aliens, and rights arising in criminal proceedings, has yet to be ratified by Belgium, Germany, Ireland, the Netherlands, Portugal, Spain or the United Kingdom.
  

While the European Social Charter of 1961 has been ratified by all EU Member States, the various attempts to update it both substantively and procedurally have garnered a lukewarm reception. In particular:

• 
  the Additional Protocol extending the rights recognized has yet to be ratified by Austria, Belgium, France, Germany, Ireland, Luxembourg, Portugal, Spain and the United Kingdom;
  
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  the Protocol aimed at improving the supervisory machinery has not been ratified by Belgium, Denmark, Germany, Luxembourg, Spain or the United Kingdom.
  
• 
  the Additional Protocol providing for a complaints mechanism has been ratified by only five (Finland, Greece, Italy, Portugal and Sweden) of the 15 EU states.
  

The two minority rights treaties adopted by the Council of Europe have also attracted relatively little commitment from within the EU:

• 
  the European Charter for Regional or Minority Languages has been ratified by only two EU states (Finland and the Netherlands);
  
• 
  the Framework Convention for the Protection of National Minorities has yet to be ratified by eight EU states (only Austria, Denmark, Finland, Germany, Italy, Spain and the United Kingdom have ratified).
  

This incomplete record of the EU states sits rather uncomfortably beside the fact that the record of ratification of these treaties by those states which aspire to EU membership has been the subject of careful scrutiny in the context of discussions over the basis for potential membership. It would seem difficult for the Union, either as a matter of fairness or logical consistency, to be imposing requirements on applicant states to meet a level of Community acquis which has yet to be fully met by existing Member States.

It might be argued in response to this analysis that the existing level of diversity in relation to the acceptance of international and regional standards is unproblematic and simply honours the principle of subsidiarity by permitting each Member state to decide such matters for itself. But while comprehensive uniformity cannot, and should not, be required in relation to every single international human rights standard, there are powerful reasons for concluding that there must be a common core of shared standards. These should include, as a minimum, the six basic UN treaties and each of the principal Council of Europe treaties, along with their respective protocols. To the extent that this minimum level of uniformity is not achieved, the EU maintains uneven internal levels of human rights commitments and protections, jeopardizes the principles of universality and indivisibility to which it has long paid lip-service, and weakens its own credibility as a human rights proponent especially in relation to its external relations. As noted above, EU leadership is best achieved by example, rather than by urging other states to do what the EU itself has not been willing to achieve.

Indeed, it is curious to be paying homage to the 50th anniversary of the Universal Declaration of Human Rights and to be urging other states to mark the occasion by acceding to the principal international instruments, without at the same time embarking upon a major effort to bring the EU’s own record up to an optimal level.

Two human rights treaties are specifically referred to in the various EU and EC treaties. They are the European Convention on Human Rights and the European Social Charter. They constitute an important part of the overall context to which we now turn.