Children's rights, Eastern enlargement and the EU human rights regime

Ingi Iusmen

• Publisher: Manchester University Press
• Year: 2015
• Print ISBN: 9780719088223
• eBook ISBN: 9781526102324
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

Critically examines how and why Eastern enlargement has impacted on the EU human rights policy

1

The European Union and human rights: historical outlook and analytical frameworks

We are not a human rights organization: our bread and butter business is the acquis communautaire; and the bread and butter of the accession negotiations are ‘adopt the acquis communautaire’.

(Commission official)

Introduction

The last rounds of enlargement saw the European Union’s (EU’s) intervention in a wide range of human rights matters in the Eastern candidates. The European Commission’s pro-active role in applying the accession conditionality had a transformative impact on the candidates’ institutions and policy structures upholding human rights. It is not surprising, therefore, that due to its strict application of human rights standards, the European Commission has been described as a ‘human rights’ actor (Sedelmeier, 2006) using a human rights discourse (De Burca, 2003). The human rights catalogue monitored and scrutinized in the Eastern candidates constituted the apex of the EU’s engagement with human rights matters in non-EU countries. This chapter provides a brief historical overview of the EU’s human rights policy and EU efforts to Europeanize the Central and Eastern European countries (CEECs) during accession negotiations. The feedback effects of EU human rights conditionality – as applied to CEECs – on the EU itself are conceptualized as amounting to policy development via entrepreneurial actions and policy continuation. This chapter, therefore, sketches the analytical frameworks employed in the book to explain how and why Eastern enlargement can trigger far-reaching effects on the EU’s institutional structures and policies.

The EU and human rights: a contested relationship?

The EU’s involvement with human rights matters has been contested throughout the history of European integration for a number of reasons, such as the EU’s limited competence and acquis in relation to human rights. From the outset, the European integration was conceived essentially as an economic project, while the Council of Europe was regarded as the legitimate European organization in charge of upholding human rights protection in Europe. Indeed, after the Second World War, the Council of Europe was responsible for establishing a European human rights regime, while the European Community/EU was entrusted with the task of generating peace, stability and prosperity in Europe via economic integration. In other words, there was to be no overlap with respect to the EU and Council of Europe’s missions in Europe after the end of the Second World War. Therefore, EU Member States retained the primary responsibility and mandate for safeguarding the protection of human rights at the domestic level, although processes of economic integration, as forged by the EU, would indirectly impact on the provision of fundamental rights across Europe. However, norms such as human rights, peace and democracy have always been at the heart of the European integration process and have shaped particularly the EU’s external role as a ‘civilizing power’ (Duchene, 1972; Sjursen, 2006a, b), ‘ethical power’ (Aggestam, 2008), ‘vanishing mediator’ (Nicolaidis, 2004), ‘normative power’ (Manners, 2002) or ‘gentle power’ (Merlini, 2001; Padoa-Schioppa, 2001). The steady political and constitutional emergence of human rights matters at the European Community level starting with the late 1960s (Cassese et al., 1991) came to fruition with the adoption of the EU Charter of Fundamental Rights in 2000, which places the protection of human rights, at least in terms of political visibility and constitutional salience, at the core of the EU processes (Von Bogdandy, 2000). Moreover, it has been claimed that the post-Lisbon reinforcement of human rights as general principles of law along with the EU’s prospective accession to the European Convention on Human Rights (ECHR) ‘together will change the face of the Union fundamentally’ (Pernice, 2008).

The European Community – and later the EU – gradually engaged with human rights primarily in its external relations, although it lacked a solid and formal treaty provision for its involvement with human rights until the late 1990s. The European project was initially conceived as a model of economic integration, whereby economic cooperation was fundamentally aimed at securing peace and prosperity in Europe. The EU’s core objectives, such as economic growth, peace and stability, were to be achieved via the creation of a common market, where the EU would play the role of a regulatory agency (Majone, 1998), and, therefore, politically sensitive issues like human rights and minority protection were to be part of the national competence; while human rights policing inside Europe was the remit of the Council of Europe. Indeed, all EU Member States are requested to be parties to the ECHR, although the Council of Europe system is deemed to be the lowest common denominator in terms of human rights protection within the EU (Alston and Weiler, 1999), a fact which is also reflected by the gaps in the ratification of the ECHR protocols by the EU Member States.

Over the last 50 years, however, there has been a progressive advancement of an EU human rights provision.¹ The EU’s engagement with human rights entailed two separate pathways: internally, the lack of explicit treaty references to human rights restricted the EU’s scope in this area, whilst externally, human rights clauses and provisions became an integral part of the agreements concluded with third² countries (Fierro, 2003; Bartels, 2005). The founding treaties were silent with respect to human rights, although a vague reference was made in the Preamble of the Treaty of Rome (1957) to the constant improvement of the living and working conditions of the peoples of the Member States.³ Yet, in the absence of clear and explicit arrangement in the founding treaties and in response to challenges of the supremacy of Community law over national constitutional law by the constitutional courts of Germany and Italy, the European Court of Justice (ECJ) took the lead in integrating human rights within the Community legal order. For instance, in 1969 the ECJ established for the first time that respect for human rights was part of the ‘general principles of Community law’ which have to be protected by the Court. The danger initially highlighted by the German Constitutional Court was that by giving away power to an organization outside the German constitutional structure, such as the European Community, it would actually empower a supranational executive which was not bound by the fundamental guarantees of the German Basic Law (Craig and De Burca, 2003: 269). To this end, the initial ruling of the German Constitutional Court was that the protection of fundamental rights in the German Basic Law would have to prevail over the Community law. The Court took the lead in developing a doctrine on the protection of fundamental rights (Craig and De Burca, 2003: 271) which eventually convinced the German Constitutional Court to accept the supremacy of the Community law at the national level. Furthermore, the ECJ played a key role in establishing the principles governing Community law, such as supremacy and direct effect, and the protection of human rights as a restraint upon the powers of the Community institutions rather than as a restraint upon Member States. The respect for human rights, therefore, was gradually introduced and embraced by EU institutions as a constraint on the discretion of the supranational institutions (Von Bogdandy, 2000:1308). The Court’s actions have been compared to a ‘quiet revolution’ (Weiler, 1994) whereby the ECJ promoted ‘integration through law’ (Weiler, 1991), with the Court’s remit providing an instrument to facilitate and advance European unification by means of judicial interpretation (Grimmel, 2011). It has been claimed, therefore, that the Court’s judicial activism and case-law in the field of human rights led to the discovery of an unwritten Bill of Rights against which to check the legality of Community measures (Weiler, 1999: 108).

The explicit inclusion of fundamental rights and later, respect for human rights, at the treaty level, emerged in the early 1990s. Initially, the Preamble of the Single European Act (1986) made reference to fundamental rights;⁴ however, it was Article F⁵ in the Treaty of Maastricht (1992) that enshrined for the first time the ‘respect for fundamental rights’ in line with the ECHR provisions. Later on, Article 6(1) TEU as modified by the Amsterdam Treaty (1997) – which entered into force in 1999 – further reinforced this provision by stipulating that respect for human rights constitute the foundational principles of the Union.⁶ The wording of human rights articles at the treaty level led to the contention that the EU attaches divergent functions to human rights in its internal and external policy spheres. For instance, it has been claimed that the wording of Article 6 (2) TEU (Treaty of Amsterdam) guarantees that EU institutions will respect fundamental rights, but it does not establish an EU ‘objective’ to respect these rights (Bartels, 2005: 204) and, therefore, the legal effect of Article 6(1) TEU is that it sets out certain assumptions on which the Treaty is predicated, without establishing clear-cut objectives. On the other hand, Article 11 TEU, as modified by the Treaty of Amsterdam, provides that one of the objectives of the Common Foreign and Security Policy (CFSP) is to ‘develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms’. Thus, while Article 11 TEU makes the promotion of human rights an external objective of the Union, the EU does not have a corresponding objective – according to Article 6 TEU – of promoting human rights and democratic principles inside the EU (Bartels, 2005: 204). Therefore, the Treaty of Amsterdam signalled a clear disjuncture between the EU’s internal and external objectives in relation to human rights, which was in place at the time of the accession negotiations with the CEECs. Put bluntly, when accession negotiations commenced with the CEECs, at the Treaty level there was a striking dissonance between the EU’s role in human rights inside and outside the Union.

The entry into force of the Lisbon Treaty and the binding nature of the EU Charter of Fundamental Rights led to the constitutionalization of human rights at the EU level (Groussot and Pech, 2010). In legal terms, the inclusion of human rights in the Treaties, which have the force of EU primary law, has attached a constitutional role to the protection of human rights within the EU project, particularly due to the binding aspect of the EU Charter of Fundamental Rights. The Lisbon Treaty lists the protection of human rights among the values of the Union⁷ and, subsequently, the EU aims to promote its values in its actions (Article 3 TEU). The reinforcement of human rights protection at the Treaty level has to be corroborated with the provisions in and binding nature of the EU Charter of Fundamental Rights. The Charter – stemming from the Treaties, ECJ case-law, the European Union Member States’ constitutional traditions and the ECHR – brings together into a single text all the civic, political, economic and social rights enjoyed by the citizens and residents of the European Union. All EU institutions have to ensure that EU legislation and policies do not violate the principles and provisions in the Charter. Yet, the Charter applies to EU Member States only when they are implementing EU law and, above all, the Charter does not extend the EU’s competences in the field of human rights as it acts rather like a brake on the powers of the EU institutions (Piris, 2010). A future accession to the ECHR, as provided by the Lisbon Treaty, will further boost the EU’s human rights credentials, although this accession shall not affect the EU’s legal competence in human rights.

A prolific involvement in the promotion of human rights has emerged as part of EU external policy dimension. Human rights, democracy and rule of law constitute values embraced by all EU Member States, although these norms mostly became the currency of EU external relations. The EU advances human rights norms through various agreements implemented with non-EU countries and through the political dialogues that it conducts with them as part of its foreign policy. In doing so, it uses a specific legal basis – a human rights clause – which is incorporated in nearly all EU agreements with non-EU countries. Since 1995 all association, partnership and cooperation agreements with third countries contain a human rights clause stipulating that human rights are an essential element in the relations between the parties (Muller-Graff, 1997). The use of human rights clause is intended to guarantee the protection of human rights in non-EU countries and it includes a suspension clause in case of serious violations of human rights provision. The human rights clause makes ‘respect for the democratic principles and human rights as defined in the Helsinki Final Act and Charter of Paris for a New Europe’ an essential element of the agreement, thereby enabling the EU to suspend or terminate such an agreement in connection with a failure of the non-EU country to comply with those standards (Pentassuglia, 2001). Therefore, the protection of human rights has become an integral part of the EU’s external and development policy and the EU insists that all trade, cooperation, dialogue, partnership and association agreements with third countries include a human rights clause (Miller, 2004: 9). The employment of a human rights clause ascribes a normative and ethical dimension to EU external relations in general.

The protection of human rights also constitutes a key condition for EU membership. For instance, in 1977 a joint declaration – Joint Declaration by the European Parliament, the Council and the Commission on Human Rights – was issued by the three institutions and stressed the fundamental importance attached to the protection of fundamental rights and the commitment of these institutions – the Parliament, the Commission and the Council – to respect them both in the exercise of their powers and in the pursuance of the aims of the European Economic Community (Williams, 2004: 55). Furthermore, the European Council meeting in Copenhagen in 1978 re-stated the same principles according to which the ‘respect for and maintenance of representative democracy and human rights in each member state are essential elements of membership in the European Communities’ (quote in Smith, 2003: 110). However, it was the end of the Cold War and the EU’s decision to enlarge to the East that signalled a new era for the EU’s promotion of human rights norms. Indeed, Eastern enlargement entailed a qualitatively and quantitatively distinctive phase in the EU’s external human rights policy, in terms of both the Commission’s involvement with the CEECs and the high-profile attached to human rights during EU accession negotiations in general. For instance, on 16 December 1991, the EC Foreign Ministers issued a declaration – Declaration on the Guidelines on the Recogni...

Table of contents

• Cover
• Half Title Page
• Title Page
• Copyright Page
• Contents
• List of tables
• Acknowledgements
• List of abbreviations
• Introduction
• 1 The European Union and human rights: historical outlook and analytical frameworks
• 2 European Union accession conditionality and human rights in Romania
• 3 Child protection in Romania and European Union accession
• 4 Policy feedback effects
• 5 Drivers of change, policy entrepreneurship and the institutionalization of children’s rights
• 6 European Union human rights regime: from Eastern enlargement to the Lisbon Treaty and beyond
• Conclusion
• References
• Index