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

D Enlargement

Eventual enlargement towards Eastern Europe will create the world’s largest trading bloc and zone of economic liberty. At present, five new members look very likely and in the longer term the number may be as high as thirteen countries. To many, enlargement is a moral imperative. And rightly so. But it will not come without costs – and our concern is not simply or primarily with economic costs. Enlargement inevitably means a further diminution in the sense of importance felt by each individual within the polity. As the Union widens and the machinery of governance grows more complex, the sense of individual alienation, of despair at being able both to influence decision-making and understand its rationale, will correspondingly deepen. ‘European citizenship’ must not become a beautiful phrase devoid of meaningful tools for individual empowerment. Moreover, the challenges posed by enlargement are not only structural or size-related. With enlargement, the Union will be importing a new set of unresolved minority issues as well as additional human rights challenges, whose solutions will test the strength of many Community policies.

In some respects the Union has looked ahead to this prospect. Articles 6(1) and 49 TEU together provide that only a European state which respects the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law may apply to become a member of the Union. And, as noted earlier, there is a new procedure for the suspension of the rights of Member States in case of a ‘serious and persistent breach’ of these principles.³⁶ But such policies and procedures look very strange alongside the Union’s continuing insistence that it cannot itself have an overall policy to promote human rights within the Union. Now is the time to act to remedy this deficiency. The motivation of action taken only after the enlargement process has borne fruit will be suspect and a strong policy will be much more difficult to achieve at that late stage.

E Globalization

The globalization of the world economy, coinciding with the acceleration of measures to consolidate the European advanced market place, gives rise to a variety of additional human rights-related challenges. Some of these are linked to the diminishing capacity of individual governments to deal adequately with certain problems, either because of the increasingly transnational character of the problem or because of the pressures on governments themselves to ‘downsize’.³⁷ Other challenges arise in relation to the new information technologies which are the engine for much of the thrust towards globalization. Issues of privacy and equal access are the most visible of what a new generation of rights must address.

Likewise, the breakdown of traditional distinctions between trade in goods and services, between information and entertainment, between the commercial and material and the cultural and spiritual, highlight the need to rethink the compartmentalized ad hoc approach to rights which hitherto has characterized the Union’s approach. These developments call for new and innovative thinking and approaches, which in turn will inevitably require a significant component of EU-level implementation. In addition, globalization has been accompanied by significant growth in the importance of non-governmental groups and coalitions whose activities and influence transcend the borders of even strong regional groupings of states.

F The Third Pillar

As the Community assumes far greater administrative and legislative responsibility in relation to Justice and Home Affairs, the need to assure, at the Community level, the rights of those affected by this new jurisdiction becomes more pressing. As long as responsibility in these areas was kept almost entirely outside the competence of the Community, the absence of a strong human rights policy in relation to those matters was defensible. As cooperation develops and the Community moves towards assuming considerably expanded powers, a parallel human rights policy must be seen as an indispensable counterpart.

G The Amsterdam Treaty

The Treaty of Amsterdam of 1997 introduced a number of elements which require the development of a new human rights policy:

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  The Treaty now provides for the first time that the EU is founded on the principles of liberty, democracy, human rights and the rule of law. It would be odd if this innovation were to have no significant policy implications and were instead to be treated as a mere rhetorical flourish.
  
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  The Treaty requires the Court of Justice, in so far as it has jurisdiction, to apply human rights standards to acts of Community institutions. The fact that these institutions are now subject to judicial scrutiny in a more structured way than was possible before should surely prompt careful reflection as to what steps could be taken to ensure not only compliance but the active promotion of respect for human rights.
  
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  Amsterdam significantly expands the Community’s powers to take appropriate action to combat a wide range of forms of discrimination. Given the problems that remain to be overcome in this area it is inconceivable that new policies will not be needed. The broader human rights context of any such policies should be clearly recognized.
  
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  The Third Pillar reforms dealing with police and judicial cooperation in criminal matters require significant accompanying initiatives in the human rights field.
  
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  As also noted above, the Treaty introduces the possibility of suspending the rights of a Member State for human rights breaches. That provision cannot be permitted to remain a dead letter. Consideration must be given now to the procedures which will be followed in such an event.
  

In summary, although there is just cause for satisfaction with a Europe which is taking formidable steps to realize its aspirations, two hard and discomforting truths must also be faced. First, current policies such as monetary union, enlargement and ever greater engagement with the global economy pose new threats, and create new challenges, to the European commitment towards the safeguarding of fundamental human rights. Second, public opinion is deeply ambivalent towards some of the principal developments within the Union. A cleavage between the increasingly generous verbal affirmation of commitment to human rights without matching the rhetoric with visible, systematic and comprehensive action will eventually undermine the legitimacy of the European construct. In the pursuit of this grand design that is the European Union it is essential to keep constantly in mind the centrality of the individual – the men and women of whom and for whom ultimately Europe is made.