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

11 The Role Of The Council, Especially In The Field Of External Relations

The Council has always had a central role in relation to human rights issues, particularly because of the limited competences of the Community, the sensitivity of human rights for both the foreign and domestic policies of Member States, and the cross-cutting nature of the issues.⁹⁸ The Council’s role is, however, of particular importance at the present time for two reasons. The first is because of the implications for human rights of certain provisions in the Amsterdam Treaty designed to strengthen the framework for the Common Foreign and Security Policy (Pillar Two). The second reason is that the Court of Justice ruling of 12 May 1998⁹⁹ on competences has compelled a re-examination of the grounds upon which the Union operates in relation to the different areas of human rights.

In addition, the Council is uniquely placed to contribute to the coordination of human rights concerns among the three Pillars which, in the view of most observers, has been clearly inadequate to date. Equally, if the call for a better matching of internal and external human rights policies is to be answered, it will be the Council, both at the level of the European Council and in the specialist settings, that will need to play a leading role. To date, however, the Council has been seen rather as the principal stumbling block in the quest to develop a better integrated and more consistent EU human rights policy.

As in all areas of EU policy-making, the Council performs a variety of tasks in the human rights field. It has a coordinating role in relation to some aspects of Member State policies, it assists in the formulation of EU policy, and it has a central coordinating and representational role in many external relations settings and especially within the context of multilateral organizations. The objectives which it might thus be expected to pursue in relation to human rights can perhaps best be gauged by reference to the formulation included in the two Draft Regulations sent to the European Parliament in August 1998. They are designed to establish the legal bases which permit the financing and administering of Community action to enhance human rights, democracy and the rule of law.

Because of the importance of the proposed approach, it is necessary to quote in extenso from the relevant text. Thus, in part, each of the draft Regulations provides that:
… consistent with the European Union’s foreign policy as a whole, the European Community shall provide technical and financial aid for operations aimed at:

1. promoting and defending the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and the other international instruments concerning the development and consolidation of democracy and the rule of law, in particular:

(a) the promotion and protection of civil and political rights;

(b) the promotion and protection of economic, social and cultural rights;

(c) the promotion and protection of the human rights of those discriminated against, or suffering from poverty or disadvantage, which will contribute to reduction of poverty and social exclusion;

(d) support for minorities, ethnic groups and indigenous peoples;

(e) supporting local, national, regional or international institutions, including NGOs, involved in the protection or defence of human rights;

(f) support for rehabilitation centres for torture victims and for organizations offering concrete help to victims of human rights abuses or help to improve conditions in places where people are deprived of their liberty in order to prevent torture or ill-treatment;

(g) support for education, training and consciousness-raising in the area of human rights;

(h) supporting action to monitor human rights, including the training of observers;

(i) the promotion of equality of opportunity and non-discriminatory practices, including measures to combat racism and xenophobia;

(j) promoting and protecting the fundamental freedoms mentioned in the International Covenant on Civil and Political Rights, in particular the freedom of opinion, expression and conscience, and the right to use one’s own language;

2. supporting the processes of democratization, in particular:

(a) promoting and strengthening the rule of law, in particular upholding the independence of the judiciary and strengthening it, and support for a humane prison system; support for constitutional and legislative reform;

(b) promoting the separation of powers, particularly the independence of the judiciary and the legislature from the executive, and support for institutional reforms;

(c) promotion of pluralism both at political level and at the level of civil society by strengthening the institutions needed to maintain the pluralist nature of that society, including non-governmental organizations (NGOs), and by promoting independent and responsible media and supporting a free press and respect for the rights of freedom of association and assembly;

(d) promoting good governance, particularly by supporting administrative accountability and the prevention and combating of corruption;

(e) promoting the participation of the people in the decision-making process at national, regional and local level, in particular by promoting the equal participation of men and women in civil society, in economic life and in politics;

(f) support for electoral processes, in particular by supporting independent electoral commissions, granting material, technical and legal assistance in preparing for elections, including electoral censuses, taking measures to promote the participation of specific groups, particularly women, in the electoral process, and by training observers;

(g) supporting national efforts to separate civilian and military functions, training civilian and military personnel and raising their awareness of human rights;

3. support for measures to promote the respect for human rights and democratization by preventing conflict and dealing with its consequences, in close collaboration with the relevant competent bodies, in particular:

(a) supporting capacity-building, including the establishment of local early warning systems;

(b) supporting measures aimed at balancing opportunities and at bridging existing dividing lines among different identity groups;

(c) supporting measures facilitating the peaceful conciliation of group interests, including support to confidence-building measures relating to human rights and democratization, in order to prevent conflict and to restore civil peace;

(d) promoting international humanitarian law and its observance by all parties to a conflict;

(e) supporting international, regional or local organizations, including the NGOs, involved in preventing, resolving and dealing with the consequences of conflict, including support for establishing ad hoc international criminal tribunals and setting up a permanent international criminal court, together with measures to rehabilitate and re-integrate the victims of human rights violations.¹⁰⁰

This list seems, at first glance, to be appropriately detailed and comprehensive. Upon closer scrutiny, however, several of its features are rather striking. The first is the remarkable lack of balance reflected in a policy which is so wide-ranging in relation to two sets of third states (those with development cooperation agreements with the EU and those, mainly in Central and Eastern Europe, subject to other specific EU programmes) but which is then not matched by an appropriately comprehensive human rights policy in the field of external relations more generally. The fact that many countries in the world do not fit within the framework of the proposed Regulations does not mean that the Union should not address relevant human right issues in those countries.

The second feature, as underlined earlier, is the absence of an equivalent set of Community policies and programmes as an internal counterpart to such an impressive external set of goals and commitments. In other words, whilst the two proposals demonstrate the Union’s enthusiasm for supporting human rights and democracy in third countries, there is surprisingly little sensibility to these very issues as regards the Community activity itself. The third feature is the extent to which a variety of very specific civil and political rights policy objectives are identified, whereas economic and social rights objectives are stated in a notably vague and general fashion.

Nevertheless, these objectives provide an excellent illustration of the type of goals which should be considered to be every bit as relevant to Second Pillar or CFSP activities, as to First Pillar cooperation arrangements. Naturally, the constitutional bases for various actions would be different as would the respective roles played by Member States, Union and Community. But, as far as possible, the policies pursued at each level could seek to reinforce those at the other levels.