Jean Monnet Center at NYU School of Law


9 The Commission

A The Commission's Role, especially in the Field of External Relations

In relation to a very large number of countries, the Commission has played a vital, constructive and often innovative role in supporting human rights and democracy initiatives, providing funds for election support and observation, and ensuring humanitarian assistance. Its budget is one indicator of its particular significance in terms of human rights and democracy. The `European initiative for democracy and the protection of human rights' (Chapter B7-70 of the Community budget) began in 1994 with a budget of 59.1 million euros. It has since almost doubled and some 97.4 million euros were available for grants in 1998. Salaries for EU officials are not included in this amount. By way of comparison, the regular UN budget funding for the Office of the UN High Commissioner for Human Rights, much of which is devoted to salaries, is currently less than one-quarter of this amount (at around US$22 million).67

The role, impact and effectiveness of the Commission's activities would be considerably enhanced if measures were taken to address the three major problems which we believe impede the work of the Commission in the human rights area. They are: its legal basis; its internal fragmentation; and its lack of staff, expertise and bureaucratic `clout'.68

The legal basis: Chapter B7-70, the principal human rights budget line, was one of those most heavily affected by the ruling of the Court of Justice of 12 May 199869 and the subsequent large-scale freeze on many disbursements and new initiatives.70 The inadequacy of acknowledged Community competences in this area had already been highlighted by the debates around a draft Regulation proposed by the Commission in December 1997, well before the Court's judgment.71 Those debates have since gathered speed and urgency and have focused on two draft Regulations presented by the Council in July 1998. As one report to the Parliament put it, the uncertainty illustrates the fact that the TEU `does not provide a clear legal basis for comprehensive action by the Union in the promotion of democracy, the rule of law and human rights other than the one upon which the CFSP is based', and that Second Pillar basis is inappropriate in a number of respects for this purpose.72 We deal below with what we consider to be the principal shortcomings in the proposed Council response.

Internal fragmentation: As noted earlier,73 the problem of administrative fragmentation is illustrated by the fact that the `Standing Inter-Departmental Human Rights Co-ordination Group' consists of 19 different entities from within the Commission. In the view of the Parliament, the Commission's strategy for using its funds is lacking and the responsibility unduly divided. It considers the Co-ordination Group to be `a mirror image of the fragmentation of responsibilities'.74 There is no doubt that outsiders wishing to understand where and how Commission policy is being developed and implemented will be utterly defeated by existing arrangements. Even more troubling, however, is that insiders themselves, including the representatives of Member States, Members of Parliament and EU officials, are not much better off. The lack of coordination is thus associated with inefficiency, fragmented policy responses, unclear lines of responsibility, an inability to develop necessary expertise, the marginalization of Parliament, and a general lack of transparency.

Lack of staff, expertise and bureaucratic `clout': The fragmentation of responsibility means that none of the bureaucratic entities responsible for human rights policy is large enough to develop the range of staff and the level of expertise required to contribute to the development of the `consistent, transparent, efficient, credible and conspicuous' human rights policy to which the Union aspires. This is compounded by the lack of clear responsibility within the Commission. In formal terms the position is that the President of the Commission is responsible for the overall promotion of a human rights policy, while another Commissioner (currently Mr Van den Broek) is responsible for the horizontal and thematic issues relating to human rights. In practice, however, a range of Commissioners deal with human rights issues. These issues not only cut across thematic portfolios, such as development, social issues, humanitarian affairs, migration, foreign policy and commercial policy, but also arise in relation to particular regions for which different Commissioners have responsibility. The result is that no individual Commissioner and no senior EU bureaucrat can be identified as the visible face of human rights either within the Commission or viewed from outside. While perfect consistency and coordination will never be attainable, the existing scope for letting many different human rights policies bloom within the Commission is greatly excessive. As one informed observer has accurately concluded, `the current system ... simply does not work'.75

B Development Cooperation, Trade and Related Policies76

The EU, especially since around 1990, has done much to ensure the inclusion of human rights provisions in a wide range of its external relations activities affecting aid, trade and other forms of cooperation. They include: the development cooperation arrangements under the Lomé IV Convention; a variety of other cooperation programmes relating to third countries, including TACIS, PHARE, MEDA and the Bosnia and Herzegovina Regulations; trade agreements with third countries and in relation to the operation of the EC's Generalized System of Preferences (GSP); and humanitarian assistance policies.77

It is appropriate that these policies should place an emphasis upon the principles of universality, indivisibility and interdependence, reliance upon international standards, a recognition of the need to work with and through multilateral organizations, an insistence upon the centrality of human rights in international relations, a commitment to dialogue with partners, and a preparedness to balance pro-active policies designed to encourage respect for human rights with reactive policies designed to respond to human rights violations, including through sanctions as a last resort.

In recent years there has been a very strong emphasis upon concerns closely related to human rights, such as democratization, the rule of law and good governance.78 While it is essential that human rights issues be addressed within their broader context, it is also important that the distinctive and authentic human rights component of such policies be ensured. In the Commission's overall external relations policies, specific human rights standards and initiatives would seem to have enjoyed an excessively low profile to date in the general context of efforts to promote democracy and the rule of law. While programmes such as PHARE and TACIS have some human rights components to which attention can be drawn in order to deflect criticism, these elements are far smaller than they should be and often seem to be little more than incidental.79

In fact, a recent evaluation study undertaken for the Commission recommended that the PHARE and TACIS labels be dropped in favour of a renamed `EU Democracy Programme'.80 In some respects, this recommendation highlights a much larger problem. The EU's insistence upon separate programmes for different areas reflects several entirely legitimate considerations, including the distinct legal bases invoked, the specific historical origins of the various initiatives, and the different bureaucratic and political considerations which are at work in support of specific programmes. At a deeper level, however, the preference for maintaining an alphabet soup of diverse and odd-sounding programmes may well be due to a deep-seated reluctance to accept that a democracy programme in its fullness should be undertaken by the EU. In this respect, it might be seen as another manifestation of the reluctance to embrace human rights and related issues as an authentic dimension of the Union.

There are four issues that should be given more prominence in the future development of the Union's policies in these areas.

1 Economic and Social Rights

The first concerns the negligible role accorded to economic and social rights. As noted earlier, despite a strong commitment in principle to these rights, EU cooperation policies have generally tended to neglect them. In the present context two aspects warrant attention. The first is that the financial and related crises dominating the situation in many Eastern European, Asian and Latin American states make it all the more imperative that a greater emphasis be placed upon these rights, both for their own sake and because of their vital role in reinforcing efforts towards democracy and respect for civil and political rights. The second is that many of the policies already pursued by the Commission could be adapted relatively easily in order to reflect a better balance. To give but one example, the Commission could earmark specific funds for countries wanting to develop the role of national human rights institutions in promoting respect for these rights through more effective monitoring at the domestic level.

2 Transparency and Accountability

The second issue is the achievement of a greater degree of transparency and accountability. Given the amounts of money involved, the considerable potential impact of the projects and the hopes that they represent from a human rights viewpoint, it is essential that the Commission's human rights activities be reasonably transparent. At present, official policy statements and formal reports are readily available, as are some evaluation and financial reports. Overall, however, the situation is unsatisfactory and makes a careful external evaluation of the effectiveness of the policies virtually impossible. For example, access to country strategy papers and to the National Indicative Programmes is highly restricted, despite their importance in ensuring that human rights are taken adequately into account in policy-making.

Similarly, very few evaluations have been performed in relation to human rights projects and those that are undertaken do not have any significant human rights dimension.81 Moreover, the information available on the relevant Commission websites provides few insights into these issues beyond official statements of policy. Similar concerns have been expressed by the Parliament.82 The Commission should address this issue specifically in the context of a detailed statement designed to improve the transparency of the cooperation process. In addition, it should prepare and publish an annual report providing an overview of the main human rights initiatives reflected in its cooperation activities and an evaluation of their effectiveness.

It is especially important in the context of cooperation programmes aiming to promote human rights that adequate possibilities exist to ensure the Union's accountability in cases in which it is alleged that EU development policies have had a significantly adverse impact or have failed to respect human rights. In theory, various avenues of redress already exist. In principle, the Parliament's Development and Co-operation Committee is able to express concerns and to question Commission officials, but in practice it is ill-equipped to pursue most such concerns effectively. Similarly, EU citizens and others resident or based in a Member State may petition the Parliament, but this is a time-consuming procedure, one which is not available to residents of third states. Another avenue is the Ombudsman who can receive complaints of maladministration, but that Office has yet to show whether it can be effective in relation to cases of this type. The Court of Auditors is not well placed to pursue individual cases, and for the most part does not. Finally, while a complaint for breach of contractual liability can be brought before the Court of Justice,83 such a remedy is never going to be very accessible in practice to those complaining of the impact of EU development policies. It has therefore been suggested that the Union should establish an Inspection Panel along the lines of that which has existed for some years within the World Bank.84 The Commission should consult broadly to assess the most appropriate form which such an initiative within the EU should take.

3 Human Rights Clauses

The third issue concerns the various types of human rights clauses that are now included in over 50 Community agreements.85 It is entirely appropriate for such clauses to become a standard feature of all such agreements. The Union should resist measures, whether by developed or developing countries, to exclude such provisions in future agreements. The principal value of these clauses is to ensure that the human rights dimensions of an issue are taken into account whenever relevant. No particular importance should thus be attached to the fact that no such clause has yet been formally invoked as the basis for suspending or otherwise not carrying out trade preference or aid arrangements. This has not prevented a range of other measures from being undertaken in order to enhance respect for human rights with various countries covered by such agreements.86

Several innovations are needed, however, in order to improve the operation of these clauses:

4 Human Rights Training

If EU officials are to do everything possible not only to make EU cooperation policies consistent with respect for human rights but also to actively promote their realization, they need to have a full understanding of the relevant standards and procedures and of their potential implications in the context of a wide range of development policy situations. Given the complex and increasingly technical nature of these standards and the need to avoid arbitrary or subjective interpretations, systematic training is an essential component of an effective EU policy in this area. Such training is not currently provided on any systematic basis; the Commission should initiate an appropriate programme of this type.

C The Commission after Amsterdam

Quite apart from the shortcomings that characterize the existing role of the Commission, the entry into force of the Amsterdam Treaty will bring a variety of new demands which would be sufficient in themselves to require a thorough rethinking of the Commission's human rights activity. Apart from the expanded general Community mandate in relation to human rights, discrimination and related issues, to which the Commission will have to respond, there are three other significant aspects.

The first is that the new arrangements in relation to the common foreign and security policy, which are dealt with below in relation to the Council,89 will provide not only the opportunity, but also a clear need, for the Commission to work more closely with the Council, through the Troika as well as more generally. The Commission will also need to develop a more systematic input to the work of Council Committees such as COHOM (the Committee on Human Rights).

The second is the Treaty's provision for the suspension of Member States' rights in response to a `serious and persistent breach' of the `principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law'.90 The Commission is empowered to propose that the Council meet to make such a determination. In order to do so it will need to have developed a methodology and guidelines for dealing with such cases, and it will need to be in a position to provide the Council with a detailed analysis of its reasons for concern. This will require the development of the necessary capacity as soon as possible, rather than leaving the provision as a virtual dead-letter to be resuscitated only after a crisis has erupted. For this purpose, the Commission, in consultation with the Council and Parliament, should undertake a study of the procedures to be applied in considering whether to suspend the rights of a Member State for a serious and persistent breach of human rights.

Thirdly, the Amsterdam Treaty formalizes the fact that the acts of the Council, Commission and Parliament are reviewable by the European Court of Justice in cases in which violations of human rights are alleged. In order to minimize the uses of this procedure in relation to its own work the Commission will need to scrutinize draft legislation and a wide range of other proposed measures to ensure its conformity with the applicable human rights standards as defined in Article 6(2) TEU.

D Proposed Reforms: A Commissioner and a Directorate-General

For all of these reasons, both practical and symbolic, it is essential that human rights become the subject of a central and separate portfolio within the Commission. This raises the question as to whether the Commissioner for Human Rights should have other responsibilities. On the one hand, the adding of other portfolios may make organizational sense, given that important aspects of human rights policy overlap with responsibilities in fields such as social policy, immigration and asylum, citizens' rights, humanitarian assistance and the like. Moreover, status and authority within the Commission sometimes seem to be linked to the number of staff and the size of the budget of a portfolio. On the other hand, there would seem to be a significant risk that combining human rights with one or more other portfolios would make the former a subsidiary concern and create possible or actual conflicts of interest on the part of the Commissioner. This would be especially the case if the Commission moves to bring external relations under the responsibility of a Vice-President, as suggested in a Declaration agreed by Member States at Amsterdam, and if that new post were also expected to take the lead on human rights.

It is therefore proposed that a separate Commissioner for Human Rights be appointed within the Commission. It would be best if no major additional portfolio responsibilities were linked thereto; if that is considered to be impossible for general administrative reasons, the only linkage that would seem to be compatible would be with humanitarian affairs and the European Community Humanitarian Office (ECHO). In order to facilitate a strong role in policy coordination and the mainstreaming of human rights, consideration should also be given to according the status of Vice-President to that Commissioner.

Some observers will inevitably seek to reject this proposal on the grounds that there are already too many Commissioners, and perhaps even more problematically, too many Directorates-General. As a result, there are strong pressures towards reducing the existing 26 Directorates-General down to some 10 to 15. But the need for administrative streamlining is a poor justification for dismissing the need to remedy a major shortcoming in the Commission's make-up.

The Directorate-General which would be responsible to the Commissioner would have three principal functions and responsibilities:

1. In its `mainstreaming' function it will bear the principal horizontal coordinating responsibility within the Commission to ensure that in all their legislative and administrative activities the various Commission services give the necessary attention to human rights concerns. This is a coordinating responsibility since we do not envisage the Directorate-General for Human Rights having an exclusive internal monopoly in this field. On the contrary, we are concerned to enhance human rights sensibility throughout the Commission. This will happen only through regular, streamlined interaction between the various specialized services and the one service (the Directorate-General) which has specialist expertise in human rights.

2. The Directorate-General will also be the principal interlocutor and recipient of the reports or surveys presented by the Vienna Monitoring Agency. These reports will be the basis for Commission action designed to deal with specific problems highlighted by the Monitoring Agency, in so far as Community-level action is appropriate. Similarly, the Directorate-General could undertake or coordinate an evaluation function in relation to the human rights components of the development cooperation and other external relations activities of the Commission.

3. Finally, and possibly most importantly, the Directorate for Human Rights will be responsible for developing policies and initiatives designed to make the protection of existing human rights more effective in the long run. This will be done through: contacts and coordination with Member States; support for, and consultation with, non-governmental organizations in the field of human rights; legislation attentive to the changing demands required to ensure respect for human rights, contacts and cooperation with similarly situated bodies at the international and national levels; and, critically, cooperation and consultation within the other parts of the Commission and its specific services.

All three functions will operate synergistically. What is envisaged is a period of strategic thinking and planning in each and every one of the myriad operational services of the Commission, throughout the Secretariat and all its Directorates-General. Each Directorate and/or Division should prepare, in consultation with the Directorate-General for Human Rights, an analysis of those areas of responsibility which are `human rights sensitive' - either in the sense that the Commission or the Community itself may, unwittingly, be accomplices to abuse or that within the relevant sphere of responsibility the Commission or Community could enhance the respect for fundamental human rights. Following such a period of internal assessment, each service would draw up a plan, setting out the steps and means required to further the objective of enhanced respect for human rights. Once again, this would be done in cooperation with the accumulated expertise of the Directorate for Human Rights. Eventually, a new matrix of action will emerge across the area of activity of the Community. In some cases, action will be required across the board; in others, it will be tailored to the functional and operational specificities of each service.

The means of action will range from educational programmes, measures promoted through citizen and resident information and advice bureaux, and the proposing of strategic legislation and enforcement measures where merited through the support and funding of public and semi-public groups and NGOs operating wholly or partly within the sphere of application of Community law.

The Directorate-General for Human Rights will have special responsibility in the field of European Citizenship, some of the details of which are dealt with below.91

67 Van der Klaauw, `European Union', 15 Netherlands Quarterly of Human Rights (1997) 204, at 208.

68 This analysis draws on Simma, Aschenbrenner, and Schulte, supra note 14.

69 Supra note 18.

70 Van der Klaauw, `European Union' 16 Netherlands Quarterly of Human Rights (1998) 378.

71 Van der Klaauw, supra note 66, at 208.

72 `Working Document on the proposal for a Council regulation (EC) on the development and consolidation of democracy and the rule of law and respect for human rights and fundamental freedoms', Rapporteur: Mr Galeote Quecedo, COM(97)0357 of 12 Feb. 1998.

73 See supra note 26.

74 Resolution on setting up a single co-ordinating structure within the European Commission responsible for human rights and democratization, pream. paras. R and S, 19 Dec. 1997, Doc. A4-0393/97, OJ C14/403, 19.01.98.

75 Gijs M. de Vries, `Human Rights and the Foreign Policy of the European Union', unpublished paper, April 1998.

76 See generally K. Tomasevski, Between Sanctions and Elections: Aid Donors and Their Human Rights Performance (1997), Ch. 3; Arts and Byron, `The Mid-term Review of the Lomé IV Convention: Heralding the Future?', 18 Third World Quarterly (1997) 73; and Arts, `Principles of Cooperation for Development in ACP/EC Relations', in: E. Denters and N. Schrijver (eds), Reflections on International Law from the Low Countries in Honour of Paul de Waart (1998) 86.

77 Simma, Aschenbrenner, and Schulte, supra note 14.

78 See, for example, the Communication from the Commission to the Council and the European Parliament entitled `Democratization, the rule of law, respect for human rights and good governance: the challenges of the partnership between the European Union and the ACP States', Doc. COM(1998) 146 final, 12.03.1998.

79 See European Commission, The European Union's Phare and Tacis Democracy Programme: Compendium of Ad-hoc Projects 1993-1997 (1998).

80 See `Evaluation of the Phare and Tacis Democracy Programme - 1992-1997', Section 6.1,

81 Since it began operations in January 1997, the Evaluation Unit within DC1A has undertaken or begun some 40 evaluations. Of these only one was available on-line by mid-September 1998 and it contains no significant treatment of human rights issues per se. See `Evaluation of the Phare and Tacis Democracy Programme - 1992-1997', /evaluation/ptdp.

82 Resolution on setting up a single co-ordinating structure within the European Commission responsible for human rights and democratization, para. 19, 19 Dec. 1997, Doc. A4-0393/97, OJ C14/403, 19.01.98.

83 Article 288 TEC.

84 See I. Shihata, The World Bank Inspection Panel (1994); and P. Feeney, Accountable Aid: Local Participation in Major Projects (1998).

85 Brandtner and Rosas, supra note 13.

86 Riedel and Will, supra note 65.

87 See Section 10B below.

88 Doc. COM(1998) 146 final, 12.03.1998, Part III, para. 14.

89 See text accompanying note 103 below.

90 Article 7, TEU.

91 See text accompanying note 111 below.

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