Jean Monnet Center at NYU School of Law


13 The European Human Rights Monitoring Agency

Monitoring is an indispensable element in any human rights strategy. Systematic, reliable and focused information is the starting point for a clear understanding of the nature, extent and location of the problems which exist and for the identification of possible solutions. It is also a necessary element in any strategy to garner the support of civil society and the community at large for measures to promote and protect the human rights of vulnerable groups. The transnational dimension of many human rights challenges, combined with the need to facilitate coordinated responses within the Union, demand that a general monitoring function be performed by the Community. The principal need is to produce an Annual Survey of Human Rights within the EU which would be factual, objective and designed to facilitate informed policy-making. But it must be emphasized that Community-level monitoring is separate from policy-making, policy implementation and enforcement. Those functions would not be entrusted to the Agency.

Indeed there is no assumption that any form of Community-level action need necessarily follow from the results of the monitoring process. In egregious cases and where a matter is within Community competence, the Community would be expected and even required to react to the reports provided to it by the Monitoring Agency. But it will often be the case that the specific measures to be taken will either fall outside the fields of competence of the Community, or would, in any event, be more effectively taken at the national level. Thus, in various ways, we consider that the principle of subsidiarity is again fully compatible with the proposed policy initiative.

It is proposed either that a separate Monitoring Agency be created or that the jurisdiction of the Vienna Monitoring Centre on Racism and Xenophobia should be enhanced so as to make it into a fully-fledged agency with monitoring responsibility over all human rights in the field of Community law. The latter proposal is put forward because it seems likely to be more politically palatable and less administratively challenging than the creation of an entirely new agency. That option should, however, be pursued if it is more acceptable to Member States. The remainder of this analysis focuses on the Vienna option.

The same logic which justified the establishment of the Vienna Centre, the same legal basis which underpins that initiative, and the same manner of functioning all apply equally to the proposed expanded agency. For those reasons it is highly instructive to review some of the principal elements cited in the Preamble to the Regulation setting up the current Centre.

(1) Whereas the Community must respect fundamental rights in formulating and applying its policies and the legal acts which it adopts; whereas, in particular, compliance with human rights constitutes a condition of the legality of Community acts;

This first paragraph restates, in an admirably succinct manner, much of the approach that is called for earlier in this article.

(2) Whereas the collection and analysis of objective, reliable and comparable information on the phenomena of racism, xenophobia and anti-Semitism are therefore necessary at Community level to provide full information to the Community on those phenomena so as to enable the Community to meet its obligation to respect fundamental rights and to enable it to take account of them in formulating and applying whatever policies and acts it adopts in its sphere of competence;

The importance of monitoring is thus acknowledged, although it is not apparent that the phenomena mentioned are fundamentally different in nature from many of the broader human rights concerns with which our present article is also concerned.

(14) Whereas in order to carry out this task of collecting and analysing information on racism, xenophobia and anti-Semitism as well and as independently as possible and in order to maintain close links with the Council of Europe, it is necessary to establish an autonomous body, the European Centre on Racism and Xenophobia (Centre), at Community level with its own legal personality;
(20) Whereas, in order to enhance Co-operation and avoid overlap or duplication of work, the tasks assigned to the Centre pre-suppose close links with the Council of Europe, which has considerable experience in this field, as well as Co-operation with other organizations in the Member States and international organizations which are competent in the fields related to the phenomena of racism and xenophobia;
(23) Whereas the Centre must enjoy maximum autonomy in the performance of its tasks;

These three paragraphs underscore the importance of independence which is a necessary element in any effective and authentic human rights institution, while at the same time noting the need for close collaboration with other relevant human rights bodies - especially, in this instance, the Council of Europe.

(15) Whereas the phenomena of racism, xenophobia and anti-Semitism involve many complex, closely interwoven aspects which are difficult to separate; whereas, as a result, the Centre must be given the overall task of collecting and analysing information concerning several of the Community's spheres of activity; whereas the Centre's task will concentrate on areas in which sound knowledge of those problems is particularly necessary for the Community in its activities;

The analysis reflected in this paragraph is particularly apposite to the broader human rights focus since it highlights the impossibility of artificially separating those issues which fall directly within the Community's competence and those which do not. But rather than drawing the conclusion that the Community should thus have no role, it draws the far more logical and acceptable conclusion that, while all relevant information must be collected, particular emphasis must be given to matters which are of relevance to the Community.

(16) Whereas racism and xenophobia are phenomena which manifest themselves at all levels within the Community: local, regional, national and Community, and therefore the information which is collected and analysed at Community level can also be useful to the Member States' authorities in formulating and applying measures at local, regional and national level in their own spheres of competence;
...(17) Whereas therefore the Centre will make the results of its work available to both the Community and the Member States;

These paragraphs reinforce the earlier one by noting that there is no question of excluding any particular levels within society from the remit of the Centre and emphasizing, as we also do, that action at the level of the Community itself will often be unnecessary. This, in turn, in no way limits the role of the Community in making the relevant information available to other levels of government to facilitate their policy-making endeavours.

(18) Whereas, in the Member States, there are numerous outstanding organizations which study racism and xenophobia;(19) Whereas the co-ordination of research and the creation of a network of organizations will enhance the usefulness and effectiveness of such work;

These paragraphs recognize the essential role of non-governmental organizations in this field and foreshadow a strong cooperative and networking approach between them and the Centre.

The rationale offered by these preambular paragraphs for establishing a European Monitoring Centre on Racism and Xenophobia is entirely compelling.109 What is not compelling, from a broader perspective, is to limit the focus of such a centre exclusively to racism and xenophobia. Both constitutionally and pragmatically the same rationale that has been developed in relation to those issues can and should be extended to the entire area of human rights coming within the field of application of Community law. The same complexity, the same need for multi-level action, and the same need for autonomy and independent legal personality all apply equally to the broader focus on human rights with which this article is concerned. This is reinforced by the new commitments in the Treaty of Amsterdam to respect human rights and to combat all forms of discrimination. In terms of the legal basis for such an initiative, there would appear to be no doubt that it is sufficient.110

The European Council should thus make a Statement confirming its overall commitment to ensuring effective action to promote respect for human rights by recognizing that a monitoring mechanism is not only a desirable, but also an essential, Community contribution. Accordingly, the objectives of the existing Centre should be expanded and adapted to enable it to perform the necessary tasks.

The new Vienna Human Rights Monitoring Agency should be given a set of objectives which would closely follow those that apply in the case of the existing Centre. In order to give a clear sense of what is involved, the following model is proposed.

1. The prime objective of the Vienna Agency shall be to provide the Community and its Member States reliable and comparable data at European level on respect for human rights in the Community in order to help them when they take measures or formulate courses of action within their respective spheres of competence.
2. The Agency will study the various aspects of human rights and their abuses and examine examples of good practice in dealing with such abuses. To these ends, in order to accomplish its tasks, the Agency shall:
a. collect, record and analyse information and data, including data resulting from scientific research communicated to it by research centres, Member States, Community institutions, international organizations and non-governmental organizations;
b. build up cooperation among the suppliers of information and develop a policy for concerted use of their databases in order to foster, where appropriate at the request of the European Parliament, the Council or the Commission, wide distribution of their information;
c. carry out scientific research and surveys, preparatory studies and feasibility studies, where appropriate, at the request of the European Parliament, the Council or the Commission. In doing so, the Centre shall take account of already existing studies and other activities (conferences, seminars, ongoing research, publications) in order to avoid duplication and guarantee the best possible use of resources. It shall also organize meetings of experts and, whenever necessary, set up ad hoc working parties;
d. set up documentation resources open to the public, encourage the promotion of information activities and stimulate scientific research;
e. formulate conclusions and opinions for the Community and its Member States;
f. develop methods to improve the comparability, objectivity and reliability of data at Community level by establishing indicators and criteria that will improve the consistency of information;
g. publish an annual report on the situation of human rights within the sphere of application of Community Law, highlighting examples of good practice, as well as on the Centre's own activities;
h. establish and coordinate a European Human Rights Information Network consisting of the Centre's own units, which shall cooperate with national university research centres, non-governmental organizations and specialist centres set up by organizations in the Member States or international organizations;
i. facilitate and encourage the organization of regular round table discussions or meetings of other existing standing advisory bodies within the Member States, with the participation of the social partners, research centres and representatives of competent public authorities and other persons or bodies involved in dealing with human rights.
In a similar manner, the organizational arrangements, management structure and budgetary accountability of the new Agency could also be adapted from those of the existing Centre. The most important function of the Monitoring Agency would be the preparation of an Annual Survey of Human Rights within the EU. This Survey would be forwarded to the Commission and the Parliament for consideration, as well as to the Member States for information.
Finally, it should again be made clear what is not envisaged in calling for the establishment of such a Monitoring Agency. It will not be a policy-making body. It will not be responsible for implementing any human rights policies. It will have no enforcement powers. And it will not address itself solely to the institutions of the Community. Indeed its keys partners will be Member States and the broader network of social partners, research centres, public authorities, and groups with expertise in the human rights field.

109 See Gearty, `The Internal and External "Other" in the Union Legal Order: Racism, Religious Intolerance and Xenophobia in Europe' in Alston, supra note 10.

110 As Professor Gaja notes: `Opinion 2/94 does not appear to imply that the Treaty [would need to] be amended in order to establish within the European Community a monitoring system concerning the respect of human rights by Community institutions and by Member States within the scope of Community law.' Gaja, `New Instruments and Institutions for Enhancing the Protection of Human Rights in Europe?', in Alston, supra note 10.

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