The Human Rights Policy of the European Union: between ambition and ambivalence

October 11, 2011 - nr.76
Summary

Conclusions and recommendations

1 General

Recently, a number of significant changes have occurred in the context within which the EU’s human rights policy is formulated. At global level, the economic and political status of the West is declining, due in part to the financial and economic crisis of the past few years. At the same time other, newer major players on the world stage, such as China, Brazil, India and South Africa, are becoming more assertive. This tendency can be observed in a number of areas, including these countries’ attitudes towards the ‘Western’ human rights agenda. At the same time, the EU member states themselves are increasingly being confronted with and called to account for the need to prevent human rights violations within the EU and within their own borders.

As explained in Chapter 1, the Treaty of Lisbon, which has been in force since 1 December 2009, created a number of institutional prerequisites for a coherent and effective EU human rights policy. Besides the detailed basis provided for human rights as values that the European Union aspires to (as expressed, for example, in the Charter on Fundamental Rights), these prerequisites include the Union’s planned accession to the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR); the appointment of a High Representative of the Union for Foreign Affairs and Security Policy (who is also vice president of the Commission); and the establishment of a European External Action Service (EEAS).

The Netherlands is now witnessing a heated debate about the usefulness and necessity of European cooperation. The AIV differentiates two tendencies within this debate: on the one hand, a certain Euroscepticism, which manifests itself in a growing emphasis on Dutch self-interest and resistance to perceived interference by Brussels. The recent discussion about the role and relevance of the European Court of Human Rights can also be seen in this light. On the other hand, it is becoming increasingly clear that, in order to safeguard and build on the gains of over half a century of European integration, it will be necessary to work together in more areas, including politically sensitive ones. The same applies to the financial and economic issues and to asylum and migration policy.

The shifts in global relationships, the changes within the EU and the Dutch debate on European cooperation make this a particularly appropriate time to examine the effectiveness of EU human rights policy.

Chapter 2 of this report shows that a study of the history of European integration reveals not only an ambition to pursue an active human rights policy, but also a perennial ambivalence about that ambition.

The first proposals for the establishment of a European Political Community, which date back to the early 1950s, envisioned a Community with the aim of protecting human rights and fundamental freedoms in the member states, on the basis of the ECHR as an integral part of the statute of that Community. The draft treaty establishing a European Political Community even gave individuals the right to petition the Court of the European Community to redress violations of the ECHR by Community institutions.

At the time there was broad support for these proposals to establish a European Political Community where human rights would be a core value for both internal and external policy, the ECHR would be integrated into its statute and robust legal enforcement would be possible. However, when plans for a European Defence Community fell through, these proposals eventually foundered and European integration proceeded for some time in accordance with a much more limited, pragmatic agenda, which focused principally on economic questions.

In the late 1960s and 1970s, a U-turn in this area was heralded by the case law of the European Court of Justice, which would gradually lead to the incorporation of human rights into the European legal order. At that time the question on people’s minds was not so much whether the European Community should get involved with protecting human rights, but rather what role it should play in this regard. The political organs of the Community, such as the European Council, also began to speak out on this issue, for example in the Declaration on European Identity of 1973, which characterised respect for human rights as a fundamental element of that identity. This was followed, in 1977, by the first Joint Declaration on Human Rights by the European Parliament, the Council and the Commission.

Eventually, the Treaty of Maastricht (1992) formally recognised that human rights were part of EC/EU law. Developing and consolidating human rights and fundamental freedoms was elevated to an official policy goal, particularly for externally oriented activities, such as development cooperation and the common foreign and defence policy.

In the period that followed, a number of positive steps were taken with regard to the internal dimensions of EU human rights policy. For example, a mechanism was introduced that made it possible to suspend the rights of a member state if it was found to be responsible for committing serious human rights violations or to be at risk of doing so (article 7 of the Treaties of Amsterdam and Nice). The adoption of the Charter of Fundamental Rights formed the next important step, although it would be some time before the Charter achieved binding legal status; the full text was not incorporated into the Treaty, and a protocol offers an opt-out to a number of member states. Accession to the ECHR had been discussed since 1979 and finally included as an obligation in the Treaty of Lisbon. In 2007 an Agency for Fundamental Rights (FRA) was established, though it lacked a mandate to critically review internal compliance with human rights, either by EU bodies or the individual member states.

Despite the above-mentioned steps, when examining the historical background, it is striking how much the external and internal human rights ambitions of the EC/EU have diverged. Time and again there has been great resistance, especially among member states, to allowing the EC/EU to play a significant role in promoting and enforcing human rights within the Community/Union. Human rights are explicitly mentioned in the Treaty on European Union (TEU) (article 21) as an overarching goal of all the Union’s external relations, but when it comes to internal human rights policy, the role of the EU is limited to those areas in which the Union has specific competence (chiefly combating discrimination and social exclusion).

Even though the EU does not have more external than internal competences, since the early 1990s, human rights have gradually been spotlighted more systematically and emphatically in relations with non-EU countries than within the Union itself. Two clear examples of this are the Copenhagen Criteria for the accession of new member states and the human rights clauses in cooperation agreements with non-EU countries, which include the option to suspend or even terminate the partnership in the event of serious human rights violations. Since 1996, human rights and democratisation have also been integrated into political dialogues with non-EU countries. Since 1994 there has been specific financing in place for external human rights policy, which is currently provided by means of the European Instrument for Democracy and Human Rights. In addition, the present state of the EU’s external human rights policy is regularly examined in annual reports by the Council.

The discrepancy between the levels of ambition shown with regard to internal as against external human rights policy is a constant factor in the development of the EU’s human rights policy. While the Union clearly regards human rights as a major aspect of its international identity and tries to present itself as a normative force in this area, it plainly has difficulty demonstrating the same commitment internally. Against the historical backdrop outlined above, it is not surprising that the EU’s role in the area of human rights is often characterised as ambivalent. The tension between various players and interests has resulted in a stepwise evolution, with mixed results.

With its shortcomings and ambivalences, the EU’s current human rights policy sometimes undermines the Union’s credibility as an international actor more than it reinforces it. A similar effect can be observed with respect to the EU’s aspiration to exercise global normative leadership. As indicated earlier, this is all the more true now that the authority of the West is waning and the assertiveness of emerging powers and developing countries is rising.

In the view of the AIV, this does not, however, mean that the EU should abandon its ambition to play a leading global role in the area of human rights. But the time has come to consistently put into practice the principles enshrined in the Treaty and to use optimally, and where necessary modify, the existing set of instruments. Such an effort should be guided by a sense of realism, a certain modesty and an eye for feasibility.

In the context of this general analysis, the second part of this chapter will answer the government’s specific questions.

2. The government’s questions

General question: In the wake of the entry into force of the Treaty of Lisbon, how can the EU’s human rights policy be made more effective, more coherent and more visible?

  1.  How can the Union’s participation in international human rights forums like the UN, the Council of Europe and the OSCE be strengthened, without concerted action leading to diminished political impact or dilution of voting power?

In answering this question the AIV concentrated primarily on the UN, since the issues raised seemed especially relevant to that body. With respect to the Union’s relationship to the Council of Europe and the OSCE, it is more accurate to speak of the EU’s cooperation with these institutions, rather than its ‘participation in’ them. Nevertheless, the AIV’s observations about the UN can apply mutatis mutandis to the EU’s engagement in other multilateral human rights forums.

Multilateral engagement, particularly in a UN context, presents specific challenges to the EU. In the view of the AIV, these are in part due to the fact that the EU operates within the UN as a partly supranational organisation in an intergovernmental framework. Moreover, the changing international balance of power complicates decisive action by the EU and the formation of cross-regional coalitions.

Despite this, the EU can still certainly improve its effectiveness. In this connection the AIV would advise the government to urge the EU to devote more time and attention to:

  1. consultations with third countries and lobbying activities for EU proposals and standpoints;
  2. better coordination between Brussels, Geneva, New York and the individual capitals, in order to devise a more strategic form of engagement in the UN and to more fully harmonise bilateral and multilateral policy;
  3. forging new (cross-regional) coalitions.

A more flexible and less defensive stance will probably elicit more support for EU positions among third countries than the current emphasis on consensus, which often means that the EU spends a great deal of energy on internal coordination and less on external consultations, and that sensitive issues, such as country-specific resolutions or the use of particular language, are now wholly avoided by the EU.

In addition, in terms of both internal and external human rights policy, the EU could take more advantage of the solid foundation offered by the normative framework developed within the UN and the results of the UN oversight procedures – such as the Universal Periodic Review of the Human Rights Council (HRC) and the recommendations of UN treaty bodies in response to country reports.

The Union could provide valuable support to the global human rights system if it confirmed that it considered itself to be bound by the UN’s nine core human rights instruments and committed to the UN treaty bodies and the work of the HRC, including the implementation of the UPR.

  1. How can the effectiveness of the Union’s many human rights instruments be enhanced so that they become integral to its external policy, and how can they be better tailored to specific situations?

Over the years the EU has amassed a wide range of instruments for external human rights policy. These run the gamut from the preventive to the supporting to the reactive. Based in part on the interviews it conducted in Brussels, the AIV feels that the present set of instruments is sufficiently extensive, though there is a need for clear priorities and more coherence between and systematic employment of the available instruments.

The human rights strategy announced by High Representative Ashton for 2011 could meet this need. Alongside the general human rights strategy, the introduction of specific human rights strategies per country could be advantageous. These strategies could be integrated into a broad EU strategy for relations with, and activities in, the countries in question. COHOM and the geographical working groups could jointly draw up human rights strategies per country. Within the EEAS, both the human rights department and the geographical departments would have to be responsible for implementation. The country strategies would form the framework for the policy and the use of specific instruments for both the EU and the member states.

As to the actual use of the various instruments, the AIV has concluded that the situation in practice is mixed. The integration of human rights and democratisation into accession policy is generally regarded as an example of a successful and effective step on the part of the Union. In its relations with other parts of the world, there is still considerable room for improvement in the way in which human rights policy is put into practice. Selectivity, inconsistency and the non-systematic implementation of human rights clauses and procedures are hampering effective action. Despite a number of shortcomings, many have welcomed the stance on human rights, both substantive and procedural, embodied by the Cotonou Agreement. The AIV believes that this could serve as an inspiration and example to other partnerships between the EU and third countries.

Experience teaches that human rights dialogues or consultations are mainly effective if the countries concerned hope for favours from the EU and are for that reason prepared to commit themselves to human rights. In relations with, for example, China and Russia, the human rights dialogue with the EU has had little result, and the AIV is moved to ask if the instrument might be more effective if it were modified to include, for example, specific benchmarks.

The AIV sees three general conditions for an effective EU human rights policy: coherence, consistency and credibility. As regards the first condition, coherence is required both within EU policy itself; and between the EU’s policy and that of the individual member states. The AIV feels that there are sufficient treaty safeguards in place to guarantee the internal coherence of EU policy. This is not, however, the case when it comes to the preparation and implementation of the policy. The coherence between the policy of the EU and that of the member states should also be enhanced. This can be encouraged in a variety of ways, including by improving information sharing practices and mapping out member states’ bilateral human rights policy and the activities undertaken by the member states’ missions and EU delegations in third countries. To the AIV’s knowledge no such overview exists at present. If we are ever to see a division of labour within the EU, as the Dutch government has been lobbying for, such an overview (with regular updates) will be one of the first requirements.

To ensure the consistency of the EU’s external human rights policy, the AIV would strongly advise against applying double standards. Having said that, the AIV does recognise that to be effective, a policy must be customised to some extent, with a focus on the actual conditions in a given country or for a given theme. Using relevant material that has been generated in a UN framework, such as UPR documentation or the concluding observations of UN treaty bodies, can provide a foundation for such a customised approach.

Coherence and consistency are, in turn, prerequisites for credibility. Beyond that, the EU can only be credible in its external human rights actions if it and its member states assume a critical yet constructive stance towards countries like the US, China, Russia and Israel. Furthermore, the AIV believes that the EU needs to acknowledge that there are limits to the traditional state-to-state approach and efforts to influence policy by criticism. A more promising approach would be, on the one hand, to encourage change from the bottom up and contribute to that change by supporting critical human rights organisations and trade unions; and on the other, to engage in a dialogue premised on equality. Preference should be given to a positive approach on this front. If, however, a country is committing gross or systematic human rights violations and no other instruments prove effective, the imposition of economic or other sanctions or the suspension of aid (or the threat of doing so) can be a last resort.

Effectiveness also depends on adequate capacity. Various EU players are active in external human rights policy. The High Representative and the EEAS are the most recent additions to this group; they are gradually becoming acclimatised to their respective roles. The EEAS, both in Brussels and at the delegations in third countries, must be given sufficient knowledge and capacity in the field of human rights. The AIV advises the government to push firmly for such a move. The Council could function much more effectively if COHOM were converted into a Brussels-based working group that met more frequently; this is another change the Netherlands should continue to press for. By broadening COHOM’s role and increasing the capacity of the EEAS, it might be possible to narrow the gap created by the discontinuation of the rotating Council Presidency. The European Parliament’s opportunities for decisive action on human rights could benefit from the creation of a full-fledged human rights committee (instead of the subcommittee that now exists), especially given its powers it has acquired with respect to ratifying agreements (including trade agreements with third countries).

  1. How can the coherence between internal and external human rights policy be enhanced?

As outlined at the start of this chapter, the AIV has observed a clear discrepancy in ambition between the EU’s external and internal human rights policy, with the latter referring to both the policy of EU institutions and that of the member states (in implementing EU law and in other respects). The EU has defined human rights as an overarching objective of its external relations and seeks to present itself to the outside world as a normative force; yet its internal ambitions are still relatively modest. This can clearly be seen in the treaty framework, but it is also apparent from the fact that the EU is a virtually autonomous entity with regard to the international human rights system. EU policy is not reviewed by regional or international supervisory bodies (such as treaty bodies), as is that of the member states. The member states, for their part, are highly reluctant to grant the EU powers to evaluate their national human rights policy.

The AIV believes that this situation is not tenable over the long run. If the EU aims to evaluate the humans rights policy of not only candidate countries but also third countries around the world, it must also be willing to critically review, and where necessary amend, its own policy. The EU’s adoption of the Charter of Fundamental Rights and its accession to the ECHR and the UN Convention on the Rights of Persons with Disabilities are steps in the right direction: now EU institutions, too, can be called to account for their actions as they affect the rights enshrined in the ECHR (and in the Charter and Convention). Another positive development is the European Commission’s publication of an annual report on the implementation of the Charter of Fundamental Rights. In the view of the AIV the EU would also be well advised to adopt a less remote attitude toward the international human rights system and do more to integrate recommendations and guidelines from the UN and other international human rights forums into its policy. The AIV advises the Dutch government to lobby strongly for this position within the EU.

As regards the relationship between the EU and the European Court of Human Rights (ECtHR), the AIV would draw attention to the equivalent protection doctrine of the ECHR, which states, in essence, that in cases where human rights protection within the EU can be regarded as equivalent to that of the Council of Europe, the ECtHR does not regard itself as competent to pass judgment on that protection. The AIV stresses that this doctrine entails a special responsibility to ensure that human rights protection within the EU remains at the required standard.

A problem with the existing system, for which no solution has yet been found, is that no mechanism exists to document and discuss the human rights situation within the Union and the member states themselves. This could be rectified by introducing a regular form of consultation that can be conducted on the basis of existing reports by the UN, the Council of Europe and other institutions. The fundamental rights commissioner and the working group on fundamental rights could help in preparing such a consultation, and its progress could be documented in a publically accessible report. This would be a tangible demonstration that the EU is serious about human rights within its own ranks as well.

The AIV advises the government to support proposals along these lines or consider whether to initiate them itself, in cooperation with a number of likeminded countries. In the long run, the AIV believes that the mandate of the Agency for Fundamental Rights should be amended in such a way that it can be transformed into a European Human Rights Institute in accordance with the Paris Principles.

  1. How can the EU raise the profile of its interventions in support of human rights?

A concept that is often mentioned together with credibility of external human rights policy is visibility. The AIV believes, and many interviewees in Brussels have affirmed, that these two notions are not always compatible. Visibility must be dealt with cautiously, since publicity can put lives at risk and because a policy of public confrontation can sometimes be counterproductive. Decisions on this issue must be taken carefully. Yet this should not lead to a state of affairs where publicity is given only to processes and where any specific information is omitted from consideration by default. The visibility of human rights policy and concrete actions is key, not only to ensuring the credibility of policy, both inside and outside the EU, but also because of the pressure generated by public statements or activities. In this connection the AIV believes it would be useful to consider whether to incorporate guidelines or criteria into the EU’s human rights strategy to give direction to the EU’s ‘visibility policy’ in the field of human rights.

With a view to increasing the visibility of EU human rights policy, the European Parliament has proposed appointing special representatives on a number of important issues (human rights defenders, humanitarian law, women’s rights and children’s rights). The AIV, however, believes that this proposal risks duplicating what is already happening internationally (especially in a UN context) and furthering the fragmentation and inconsistency of policy. By contrast, the AIV feels that the appointment of a general Special Representative for Human Rights does have sufficient potential. This could increase the opportunities for coherence and consistency of the EU’s external human rights policy, and it would certainly make the Union’s involvement in human rights issues more visible. The AIV would therefore advise the government to back any proposals for the appointment of such a representative.

Although the request for advice relates to the visibility of external policy, the AIV wishes to underscore that the visibility of internal human rights policy can substantially boost the external credibility of the EU. If, as stated earlier, the EU succeeds in creating a regular consultation on the human rights situation within the Union and the member states and reports on the results in the form of a public, reader-friendly report, this would send a very positive message to third countries that accuse the EU of not applying its tough standards in its own backyard. The AIV recommends that the government work to ensure that the visibility of internal EU human rights policy is also promoted.

  1. Conclusion

Finally, the AIV would like to make a few remarks on a question that does not appear in the request for advice but which is directly related to it: in the years ahead, should the Netherlands focus more on pursuing its external human rights objectives via the European Union? The human rights memorandum that the government presented in April 2011 had the following to say on this point:

Effectiveness also means taking a good look, on an issue by issue basis, at what channels we should use to achieve our goals. Our credo is: multilateral where possible, bilateral where necessary. The Lisbon Treaty and the appointment of the High Representative for Foreign Affairs have placed the EU in a better position than ever before to pursue a strong, coherent human rights policy. The Dutch government intends to use this opportunity to the full, in addition to existing instruments. In communication and dialogue on human rights, it is the result that counts.1

The AIV endorses the advantages of scale associated with taking external action in an EU context that were mentioned above. Further, it is convinced that acting via the EU – including in the area of human rights – can potentially have substantial added value and, in many respects, be more effective than acting bilaterally. The AIV therefore believes that it makes sense, in principle, to take this route, in part because the TEU creates certain obligations in this area.

However, the AIV emphasises that the Netherlands should not only promote human rights via the EU’s common foreign policy, but also by means of its own foreign policy. A point to consider in this connection is that, even though the EU treaty framework and existing instruments already offer a solid foundation for pursuing a robust external EU human rights policy, this is very often not put into practice. This has to do with the lack of coherence and consistency within the EU’s external policy and a disconnect between the EU’s policy and that of the individual member states. In addition, there is a plain discrepancy in ambition between the EU’s external and internal human rights policy, a fact that undermines the credibility and legitimacy of the EU as a global human rights actor.

The Netherlands has always considered human rights and the promotion of the international legal order as major pillars of its foreign policy, particularly since the release of the human rights policy document in 1979. In that light the AIV advises the government to continue to focus intently on pursuing human rights policy via the EU, in cases where this is more effective than acting bilaterally. It is only appropriate, however, to entrust ‘partners in the European Union’ to undertake special efforts on specific issues, as stated in the 2011 human rights memorandum in reference to the ‘protection of ethnic minorities, combating racism and promotion of children’s rights in foreign policy’2, if these efforts are also guaranteed and of good quality and if there are clear reasons for them3. In this connection it is worth recalling the above recommendation that an overview should be made of the bilateral human rights policy of the member states and the activities undertaken by member states’ missions and EU delegations in third countries. A well-documented and regularly updated overview of these issues is a prerequisite for achieving the division of labour desired by the Dutch government.

Given the EU’s institutional structure, the CFSP and the foreign policies of each individual member state will continue to co-exist side by side in the years ahead. In the opinion of the AIV, the time is not yet ripe to conclude that acting via the EU is preferable to acting bilaterally in the field of human rights. This could change in the future, if the EU’s common action on human rights could be further enhanced. This presupposes, however, that better guarantees will be incorporated into the EU’s institutional structure for adequate capacity and expertise in the area of human rights; that external EU human rights policy shows improvements in practice; and that the member states succeed in formulating a convincing internal human rights policy. Giving human rights a central place within both the Union’s external and internal policy will also require political will on the part of the member states.
 

 


1 Policy memorandum ‘Responsible for Freedom: Human Rights in Foreign Policy’, 5 April 2011. Retrievable at http://www1.minbuza.nl/en/Key_Topics/Human_Rights/Dutch_Human_Rights_Policy
2 Ibid., p. 6.
3 In the case of children’s rights, for example, there is cause to question this decision, which comes at a time in which the government is supporting, through the Cofinancing System 2010-2015 (MFS II), the activities of a relatively large number of Dutch civil society organisations devoted to protecting children’s rights around the world. By no longer undertaking any special efforts of its own in the area of children’s rights, with the exception of child labour, which remains a priority, the government risks creating an undesirable dichotomy.
 
Advice request

Mr F. Korthals Altes
Chairman of the Advisory Council
on International Affairs
P.O. Box 20061
2500 EB The Hague

Date 26 November 2010
Re Request for advice on the effectiveness of European human rights policy

Dear Mr Korthals Altes,

The universality of human rights is increasingly being questioned at international level, and this entails risks for the observance of the human rights enshrined in international agreements – which already leaves much to be desired. To counter this trend, in addition to forceful action by individual states, an effective, tailor-made European Union human rights policy is crucial.

Human rights are anchored in the external policy of the Union. Not only is the protection of human rights one of the basic objectives of the EU’s relations with the wider world, but respect for human rights is one of the values on which the Union itself is founded (see e.g. article 2 and article 3, paragraph 5 of the Treaty on European Union). Several different instruments have been developed to implement the EU’s external human rights policy, including démarches, declarations, human rights dialogues, human rights guidelines, the European Instrument for Democracy and Human Rights (EIDHR, a Commission funding instrument), and standard human rights clauses in agreements with third countries. Achieving coherence between internal and external policy remains a major challenge. Greater progress could also be made in raising the profile of EU human rights policy and making it more forceful.

The Treaty of Lisbon provides means of pursuing these goals. The appointment of a High Representative for Foreign Affairs, who is also Vice President of the European Commission, gives the Union a clearer profile to the outside world. The European External Action Service (EEAS) provides important support to this role. The European Parliament will also keep a critical eye on all of the Union’s policy areas, ensuring that human rights play an integral role in them all.

It is not yet clear to what extent these institutional changes will lead in the foreseeable future to a more effective EU human rights policy. One major step in the right direction was High Representative Ashton’s promise to the European Parliament to present an EU human rights strategy in 2011. In preparation for this strategy, a discussion and evaluation process is taking place under the Belgian Presidency on embedding human rights more firmly in the Union’s external policy. This evaluation will be presented to the High Representative together with recommendations by the member states.

As part of the process of determining the Dutch government’s position on an EU human rights strategy, we are submitting the following question to the AIV:

In the wake of the entry into force of the Treaty of Lisbon, how can the EU’s human rights policy be made more effective, more coherent and more visible?

The following subsidiary questions are relevant to the main question:

  1.  How can the Union’s participation in international human rights forums like the UN, the Council of Europe and the OSCE be strengthened, without concerted action leading to diminished political impact or dilution of voting power?
  2. How can the effectiveness of the Union’s many human rights instruments be enhanced so that they become integral to its external policy, and how can they be better tailored to specific situations?
  3. How can the coherence between internal and external human rights policy be enhanced?
  4. How can the EU raise the profile of its interventions in support of human rights?

The fact that third countries, as well as international organisations like the Council of Europe, reproach the EU for applying double standards raises the question of how ambitious and effective the EU can be. Promoting internal and external coherence in human rights policy is vital for its credibility, particularly since the Lisbon Treaty has created an architecture and institutions specifically for that purpose, such as the Commissioner for Justice, Fundamental Rights and Citizenship and the Council Working Party on Fundamental Rights, Citizen’s Rights and Free Movement of Persons.

The Minister for European Affairs and International Cooperation and I would appreciate receiving an advisory report from the AIV on the questions outlined above and any related issues.

Yours sincerely,

 

Uri Rosenthal
Minister of Foreign Affairs
 

Government reactions

THE GOVERNMENT’S RESPONSE TO THE AIV’S ADVISORY REPORT ‘THE HUMAN RIGHTS POLICY OF THE EUROPEAN UNION: BETWEEN AMBITION AND AMBIVALENCE’

17 January 2012

The Advisory Council on International Affairs (AIV) was asked to answer the following questions. How can the European Union’s participation in international human rights forums be strengthened, without concerted action leading to diminished political impact or dilution of voting power? How can the effectiveness of the EU’s many human rights instruments be enhanced so that they become integral to its external policy? How can the coherence between internal and external human rights policy be enhanced? And how can the EU raise the profile of its interventions in support of human rights?

The government thanks the AIV for its advisory report ‘The Human Rights Policy of the European Union: Between Ambition and Ambivalence’. It is a valuable and well-documented contribution to the discussion on EU human rights policy. In its response, the government will focus on the main recommendations and conclusions in the report.

General
The government shares the AIV’s opinion that there is a need to counterbalance the changes taking place in the global context, such as the emergence of Brazil, India and China as major political powers and the growing debate on the universality of human rights. While forceful action by individual states remains a necessity, the Netherlands will strive for tailor-made European Union human rights policy wherever concerted action makes our national policy more effective and efficient. The EU needs to amplify its powers of persuasion and take more decisive action against serious violations. In this regard, the government is eager to see the High Representative for Foreign Affairs and Security Policy, Catherine Ashton, and the European External Action Service (EEAS) function as effective and efficient ‘coordination platforms’ for the member states’ human rights activities, not least through a better division of labour within the EU.

EU participation in international human rights forums
The AIV argues that more time and attention should be devoted to consultations with third countries and lobbying activities for EU proposals and standpoints, and recommends improving coordination between Brussels, Geneva, New York and the individual capitals. These recommendations dovetail with the government’s aims; within the EU the Netherlands will continue to advocate better preparation and coordination of EU human rights priorities within the UN context and draw attention to the need to identify the themes on which member states have difficulty agreeing a common position. Like the AIV, the government is of the opinion that the EU focuses too much on consensus; the Netherlands favours greater flexibility and a more active approach. The AIV states that its observations about the UN apply mutatis mutandis to the EU’s involvement in the Council of Europe and the OSCE. However, given that EU member states make up a large part or even the majority of the total number of member states in these regional organisations, the government believes it would have been logical for the AIV to have considered them separately.

Effectiveness of human rights instruments
The government shares the AIV’s view that the EU’s present set of human rights instruments is sufficient. EU sanction policy, for example, has proven its usefulness. As the AIV states, sanctions have a much greater impact if imposed by the EU rather than by an individual member state. However, there is a need for clear priorities and greater coherence between and systematic deployment of the available instruments. For a long time, the Netherlands has been pressing for priorities to be set and for improvement in the division of labour between the member states and EEAS and between embassies and EU delegations in third countries. The Netherlands is satisfied with the introduction of country-specific strategies that will be integrated into a broad EU strategy for relations with third countries.

Conditions for effectiveness
The report distinguishes three general conditions for an effective EU human rights policy: coherence, consistency and credibility.

Coherence is required both within EU policy itself and between the EU’s policy and that of individual member states. The government shares the AIV’s opinion that there is ground to be gained here and in this respect would reiterate the fact that the Netherlands has urged the EU to improve the division of labour among the member states. A division of labour of sorts has evolved in practice, and should be elaborated and formalised.

Consistency and, with it, credibility can be enhanced, according to the AIV, by avoiding double standards and assuming a critical yet constructive stance towards countries like the US, Israel, Russia and China. A number of the AIV’s examples require commentary. The government is of the opinion that the human rights situation in the countries mentioned differs greatly. Ideally, the countries that give greater cause for concern should be given more attention. In addition, the Netherlands has been consistent in its position that the EU should call to account any third country that commits serious violations, for example in the form of the death penalty, torture and enforced disappearance, and that serious offenders, wherever they come from, should be dealt with through ‘listing’.

Furthermore, the AIV considers it important for the EU to recognise that the effectiveness of the traditional state-to-state approach and efforts to influence policy by criticism is limited. The government agrees with the analysis that encouraging change from the inside by supporting critical organisations and conducting meaningful dialogue on the basis of equality are more likely to be effective. Closer relations with third countries and a strong human rights policy are not mutually exclusive. On the contrary. For example, while the EU is carrying on a human rights dialogue with Israel within the framework of the Association Agreement, opportunities for closer cooperation are being explored. The Netherlands (in accordance with the motion tabled by MP Kees Van der Staaij) recognises the effectiveness of the receptor approach in dealings with countries like China. Communication, rather than confrontation, is the essence of this approach. Countries are called upon to meet their treaty-based obligations but left in relative freedom to decide how to do so.

Coherence between internal and external human rights policy
The government shares the AIV’s view that while the EU presents itself internationally as a normative force in the area of human rights, it should also demonstrate its commitment to these rights internally. However, the government disagrees with the AIV’s criticism on this point. The Treaty of Lisbon introduced conditions for expanding human-rights monitoring within the Union and various concrete measures have been taken. For example, the EU Charter of Fundamental Rights is now legally binding, the European Commission has presented its own internal human rights strategy, the Council of the European Union announced earlier this year that it would ensure that every legislative proposal it approves is worthy of a ‘fundamental rights label’, the Council and the Commission have drafted methodological guidelines for monitoring the compliance of legislation with which the Council is involved with the Charter of Fundamental Rights and a permanent Working Party on Fundamental Rights, Citizens Rights and Free Movement of Persons (FREMP) was established as a forum for discussion on these issues. In ‘Responsible for Freedom’ the government pledged to make a contribution wherever it can to the functioning of the human rights policy of the EU institutions.

The Netherlands opposes amending the mandate of the EU Agency for Fundamental Rights with a view to transforming it into a European human rights institute. The Agency should not be monitoring compliance because this is a task that is already carried out by the UN and the Council of Europe. Overlap with the activities of these organisations should be avoided. The Agency’s remit is to advise and assist member states and it is currently expanding its advisory task. The Netherlands supports this, as it will enhance the effectiveness of the Agency’s activities. There are other agencies and supervisory bodies that are responsible for promoting observance of specific fundamental rights within the EU, such as the European Institute for Gender Equality and the European Data Protection Supervisor.

Visibility
Unlike the AIV, the government is not in favour of appointing a general Special Representative for Human Rights, and opposes any proposals to this effect. The EU already has eight Special Representatives and the appointment of a ninth could lead to further policy fragmentation and inconsistency. Human rights should be, in the words of High Representative Catherine Ashton, the ‘silver thread’ that runs through all EU external policy and it is her job to convey this message. The government does, however, support the recommendation that the visibility of the EU’s internal human rights policy be enhanced in order to boost the EU’s external credibility.

 

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