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.100 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 1998101 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.102
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.
The two draft Regulations referred to above have important implications in terms of this relationship. Without needing to challenge the objectives, the means, or the balance of institutional responsibilities reflected therein, there are several aspects of the proposals which warrant attention.
First, when the Commission carries out the tasks entrusted to it under the draft Regulations, it will be necessary for the lead role to be taken by the Directorate-General responsible for Human Rights and the new Human Rights Commissioner, albeit of course in cooperation with the various Commission services responsible for development cooperation and for other relations with third countries in the framework of Community cooperation policy. It makes no sense to further entrench the fragmentation of overall human rights responsibility among different Commission services, nor does it make sense to promote an unnecessary gap between the internal and external dimensions.
Second, the democratic accountability of the Community's proposed action is weak. The European Parliament will, effectively, only be able to exercise control through the budgetary procedure but is excluded from substantive scrutiny and dialogue. In contrast, the `Human Rights and Democracy Committee', proposed to be set up under Article 12, will perform a powerful oversight role. Yet it will be composed of Member State representatives, even if it is to be chaired by the Commission. The role of the European Parliament must be strengthened and made commensurate to that of the Member States or, in effect, the Council. As envisaged in the present draft, the Committee lacks precisely the democratic accountability which it will be supposed to promote in third countries.
Third, the programmes to be undertaken under the proposed Regulations involve the distribution of large sums of money (estimated by the Council at 400 million euros over five years, but likely to be greater) which will be administered either directly by, or on behalf of the Community, by a variety of public, semi-public or private agencies. Neither under the proposed Regulations, nor under the standing procedures for the Ombudsman, are there provisions for individual complaint and/or investigation of the manner in which these funds are spent, or policies are administered, by or on behalf of the Community. It is an area which is susceptible to abuse and misuse. In accordance with the general rule-of-law principle established within the Community, appropriate safeguards should be implemented. The Ombudsman, or a surrogate for the Ombudsman (such as the Inspection Panel suggested above)103 should be established to receive and investigate such complaints and, where necessary, to take further necessary action.
It will, of course, be for the European Council to take the lead in adopting the initiative for a fully-fledged human rights policy for the Union. And, to the extent that the internal dimension of the human rights policy involves legislation, the Council will play its normal constitutional role in the legislative process, both at primary level and through Comitology. The critical role of the Council will, however, be in the external dimension of the human rights policy.104
The Union has a key role to play in enhancing human rights in all aspects of its common foreign and security policy and not only in relation to democratization, the rule of law and good governance in narrowly defined areas of the world. There is, after all, no material, geographical or political limitation on the reach of the Union under the second Pillar. Thus, human rights should become an important, regular and systematic dimension of the Union's foreign posture under Pillar Two.
Until now, little attention seems to have been given to developing the Council's capacity to make human rights a significant part of its activities.105 The secretariat of the Council is not currently well-equipped to perform human rights functions. While the Council's Committee on Human Rights (COHOM) plays an important role, it deserves a more focused and better coordinated secretariat interlocutor with which to work.
The Amsterdam Treaty creates the new post of CFSP (Common Foreign and Security Policy) High Representative (to be filled by the Council Secretary General). This post has already been popularly dubbed `Mr or Monsieur Pesc', based on the French acronym for CFSP which is PESC. There will also be a new form of CFSP `troika' consisting of the Council President, the CFSP High Representative and the Commission. We believe that within the framework of the `Mr PESC' function under Pillar Two, a special Human Rights Office should be established. This Office should work in close coordination with the Commission's new Human Rights Directorate-General, while preserving the constitutional demarcations between Pillar One and Pillar Two. An appropriately modified version of the more robust Community policies should guide CFSP.
Two objections to this proposal can be anticipated. They are that the Council Office will duplicate some of the work that the new Commission structure is supposed to perform and that its creation will only exacerbate the policy disagreements that characterize so much of the Commission-Council relationship. The effect will be to paralyse, or at least further complicate, overall EU human rights policy. These are valid concerns but they underestimate the extent to which the Commission and the Council do, and should, perform rather separate functions under their respective Pillar One and Pillar Two responsibilities. The proposal is also predicated upon the hope that greater expertise and more systematic information, on both sides, will help to align the different policy perspectives.
As already noted, there is no constitutional bar for the Union's foreign policy to pursue policies which would have as their objective and would be aimed at promoting and defending the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and the other international instruments concerning human rights, the development and consolidation of democracy and the rule of law in third countries, even outside specific Community policies. The existing Community model should provide guidance to the type of activities to be pursued under Pillar Two. It warrants emphasizing the fact that this Pillar does not contain any constitutional limitations to consensual action in this area.
The specific polices proposed in relation to the Council revolve around monitoring, cooperation, responding to violations and general policy promotion.
Monitoring. Under the auspices of the Commission, which would draw upon its 129 `delegations' in third countries, and in cooperation with `Mr PESC', an Annual Report should be prepared giving an overview and details of the state of human rights in the world from a European Union perspective. Part of this Report would cover those states coming within the EU's cooperation framework - and the main raw material would be generated by the Commission and its delegations. Reports for other countries would draw primarily upon information generated by the Office of Human Rights of CFSP using all resources available to it. It is acknowledged, however, that the precise modalities for drawing up the Annual Report would clearly need to be the subject of considerable discussion and negotiation among the institutions concerned. It would thus be foolhardy to seek to prescribe them in any detail in this context.
It is sometimes suggested that such reporting, long called for by others, should focus only on countries with which the EU has a specific relationship. But this would make little sense in terms of the resulting coverage and would require many invidious decisions as to which countries to cover and which to overlook. The resulting patchwork would be seen as discriminatory and incomplete.
The very publication of this report - the idea of which, it can safely be anticipated, will be contested by many in the national foreign policy establishments - should be a constant and stable feature of the Union's foreign policy posture. Third countries will simply know that their human rights record will be one element in their relationship with the Union and that it will not be an ad hoc, subjective or avoidable dimension of the relationship.
As noted above,106 the Parliament has consistently criticized the Annual Memorandum presented to it by the Council on the grounds that it is both inadequate and greatly delayed. The new report which we propose would be sent annually to the European Parliament and would provide it with an ideal basis upon which to play a constructive and informed role in relation to its long-standing human rights concerns.
Cooperation. Over time, the CFSP should adopt and put in place the same type of pro-active programmes which are already a feature of the Community's cooperation and development cooperation frameworks. These would involve support for public and private organizations involved in the enhancement of respect for human rights. Such initiatives could be characterized as Common Action and be subject to all Pillar Two management, budgetary and decisional procedures. They would be designed to give the CFSP the necessary flexibility to provide positive forms of assistance to reinforce its other policy orientations. Perhaps the best example is the possibility for the Council to offer funding and expertise to assist governments in third states to establish national human rights commissions. This is a high priority objective of the UN human rights programme and has been strongly supported by the EU in that context. Again, however, it is somewhat anomalous that national commissions have not been set up within most EU countries.107
Responding to violations. The Union cannot remain indifferent to large-scale violations of human rights. While acknowledging the particular difficulties faced by the EU in relation to especially complex and controversial cases, we believe it is essential for the EU to continue to strive to ensure an appropriate balance between the positive and negative dimensions of its policies. Whilst we do not agree with those who advocate the automatic application of economic or other forms of sanctions in certain circumstances, and while we consider that the impact of any proposed sanctions upon human rights must always be taken fully into account, it is clear that sanctions should not be excluded from the range of policy options available to the Union. Their appropriate form and duration will inevitably differ from case to case, but there will be instances in which there is no other reasonable response.
There are two developments which could assist greatly in enabling a tailored and more effective EU response to violations. The first is the better integration of human rights considerations into defence and security policy as well as economic and commercial policies. The second is the development of the expertise and routine consideration of human rights which would result from the creation of the proposed Human Rights Office.
General policy promotion and representational policies. The EU has a particularly important representational role, especially vis-à-vis other international organizations, in the context of which greater attention should be paid to human rights. These issues are increasingly prominent on the agenda of the UN Security Council and should be made so in relation to those of the World Bank and the International Monetary Fund, to name but two important forums. The EU should take a more pro-active role, both through its individual Member States and collectively, to promote the incorporation of human rights concerns into the mainstream activities undertaken within such settings.
100 On the role of the Council in general see M. Westlake, The Council of the European Union (1995).
101 Supra note 18.
102 See the `[Draft] Council Regulation (EC) laying down the requirements for the implementation of development co-operation which contribute to the general objective of developing and consolidating democracy and the rule of law and to that of respecting human rights and fundamental freedoms'; and its companion `[Draft] Council Regulation (EC) Laying down the requirements for the implementation of community operations, other than those of development co-operation which, within the framework of community co-operation policy, contribute to the general objective of developing and consolidating democracy and the rule of law and to that of respecting human rights and fundamental freedoms in third countries', both of 1 July 1998.
103 See text accompanying note 83 above.
104 For a detailed analysis see Clapham, `Where is the EU's Human Rights Common Foreign Policy, and How is it Manifested in Multilateral Fora?', in Alston, supra note 10. Also Fouwels, `The European Union's Common Foreign and Security Policy and Human Rights', 15 Netherlands Quarterly of Human Rights (1997) 291; Packer, `Reflections on the Development of a Common and Comprehensive Foreign Policy of the European Union', in Contemporary International Law Issues: New Forms, New Applications (1997) 231; and Winn, `The Proof of the Pudding is in the Eating: The EU Joint Action as an Effective Foreign Policy Instrument?', 13 International Relations (1997) 19.
105 The Council's own accounting of its human rights-related activities is reflected in the Annual Memorandum to the European Parliament on this subject. These are reproduced in the relevant issues of the EPC [European Political Co-operation] Documentation Bulletin and its successor European Foreign Policy Bulletin on-line at <http://www.iue.it/EFPB/Welcome.html>.
106 See text accompanying note 94 above.
107 There is, of course, a wide range of institutions within different EU countries which perform various, and in some cases most, of the functions undertaken by a full-fledged national human rights commission. It is beyond the scope of this paper to review those arrangements, but it is revealing that the `Good Friday' agreement of 10 April 1998 relating to Northern Ireland provides that human rights commissions will be established in both Ireland and Northern Ireland and commits the British Government to consider bringing together various existing functions into a `unified Commission'. But, as has been argued elsewhere, even that proposal falls significantly short of constituting a national human rights commission, per se, for Britain. See S. Spencer and I. Bynoe, A Human Rights Commission: The Options for Britain and Northern Ireland (1998).
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