The European Union and the Council of Europe

M. Kolb

• Publisher: Palgrave Macmillan
• Year: 2013
• Print ISBN:
  9781137023629
• eBook ISBN:
  9781137023636
• Topic: Politics & International Relations
• Subtopic: European Politics
• Index: Politics & International Relations

Marina Kolb traces the relationship between the EU and the Council of Europe in the field of human rights. Applying an implementation literature and management studies-perspective, it argues that the biggest threat to interorganizational cooperation is organizational self-interest, despite a shared policy interest.

Part I

Introduction

1

Introduction

‘Fundamental rights at the heart of policy making’ was the title of a press release sent from the newsroom of the European Commission in April 2012 (Commission 2012b), illustrating the increasing prominence of fundamental rights within the European Union (EU). This fact is reflected, most importantly, in the Charter of Fundamental Rights of the European Union in force and legally binding for over two years now. With the ratification of the Lisbon Treaty, EU member states obliged the EU to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of the Council of Europe (COE). To this end, the European Commission (henceforward, Commission) and the COE kicked off joint talks on the EU’s accession to the ECHR in July 2010. Two years later, technical negotiations have concluded and a draft accession agreement has been drawn up. However, the accession process is still far from the finish line: the accession, based on an international treaty among all 47 COE member states, will only enter into force upon ratification by all parties, which – this goes without saying – is a rather lengthy process.

The idea of EU accession to the ECHR did not appear out of the blue during negotiations over the Lisbon Treaty; on the contrary, it is part of ongoing and long-standing reflections and discussions dating as far back as the 1970s. At its core, the accession process examines the question of how the EU’s accession to the ECHR should be tackled while simultaneously implying at the much broader question of how to deal with the increasing overlap between the EU and the COE must be looked at: the more competence the EU has gained over the past two decades, especially in the field of Justice and Home Affairs (JHA), the more urgent it has become to reflect upon the relationship between these two regional organizations that both deal with human rights in Europe. The Action Plan adopted at the so-called Warsaw Summit of the COE in 2005 recognizes this overlap in the legal field and stresses the need for increased cooperation (COM 2005b: Chapter IV.1):

Considering the important contribution of the Council of Europe to democracy, cohesion and stability in Europe, we call on the Council of Europe to:

strengthen its relations with the European Union so that the Council of Europe’s and the European Union’s achievements and future standard-setting work are taken into account, as appropriate, in each other’s activities (emphasis added).

Originally, however, the COE and the slightly younger EU (at that time the European Economic Community and the European Atomic Energy Community, respectively) were founded as alternatives that aimed at European integration (Schneider 1977: 217; Rittberger 2001: 687, 694; Petaux 2009: 274–8). They have run parallel for most of their existence, each within its very own field of activity and each forging different paths for integration (Mitterand 1982: 31; Commission 1989: 2; Juncker 2006: 1; Joris and Vandenberghe 2008/2009: 4). The COE, as the main European organization for the protection of human rights, has fostered European integration through the protection of human rights, pluralist democracy, and the rule of law since 1949. The slightly younger EU, founded in 1957 (except in Chapter 3 dealing with the historical development of the EU–COE relations, the term EU is used to enhance readability; hence the names of EU’s predecessors, namely the European Coal and Steel Community, the European Economic Community, the European Atomic Energy Community, and the European Community (EC) are omitted), took another road and tried to bring the European countries closer by focusing on coal and steel. Since then, the EU has grown in both its competencies and the number of its member states. At present, the EU is far from being the coal and steel organization of the 1950s (see, for example, Wallace et al. 2005), and through its development it intrudes into competence spheres of other European organizations. By putting ‘the human rights issue at the forefront’ (Commission 2012d), the EU’s engagement in the field of human rights is becoming increasingly visible. While the EU had started combining trade agreements with human rights requirements as early as in the 1970s, it was only in 1993 that the EU adopted its first specific human rights norm, which incidentally strongly resembled the COE criteria for membership: the so-called Copenhagen Criteria, which accession countries have to fulfill before becoming members of the EU (Chalmers et al. 2006: 243–4). The EU’s interest in human rights has steadily increased from the 1990s (Brosig 2006a: 9–16), the most visible consequences of which include – other than the Charter of Fundamental Rights of the EU (2000) – the Fundamental Rights Agency (FRA) (2007) and, in terms of staff restructuring, the new Commissioner post for Fundamental Rights (2009). Having exhausted the Common Market as a vision for further integration, the EU has been intrigued by human rights as a new raison d’être and longs to portray itself as a human rights organization (Von Bogdandy 2000). As a result, the EU is eager to (retrospectively) construct a foundational human rights myth that would suggest that the EU and human rights are, and always have been, intrinsically linked (Smismans 2010).

This compels the COE, previously the exclusive regional organization in the field of human rights protection, to confront a new competitor now heavily involving itself in the COE’s core task. As a result, the EU and the COE now (partly) occupy the same policy space, and their relationship is a contentious one, a problem that has not yet been resolved. On paper, they like to picture themselves as complementary partners that reinforce each other and consequently improve human rights protection in Europe. Yet, the inflicted principles of complementarity (that is, no parallel structures) and cooperation seem to remain empty claims when it comes to practice, as the to-the-point report by Jean-Claude Juncker (2006: 2), Prime Minister of Luxembourg, states on the relations between the EU and the COE:

Although each has enriched the other, the two organisations remain at best a shaky team. Although each has borrowed from the other, they have never been able to make themselves permanently complementary.

How international organizations (IOs) react when confronted with such organizational overlap, which is, an intersecting mandate (overlapping competencies), possibly accompanied by a common membership, is the core interest of this book. An organizational overlap can either lead to conflictive situations such as turf wars and duplication of tasks, or can allow IOs to cooperate and strive for common goals. Starting from the organizational overlap, the central research questions are the following: Do overlapping competencies lead to cooperation or conflict between IOs? What are the conditions conducive to either cooperation or conflict between IOs?

In the context of the steadily increasing number, importance, and complexity of IOs over the past decades, it is astonishing that existing political science literature has failed to sufficiently address and explain interorganizational relations (IOR). IOR were largely neglected by theoretically informed scholars rooted in international relations (IR), who considered the study of IOs as ‘the ugly duckling’ within the discipline and bypassed IOs on the basis of their notion of ‘international regimes’. Particularly in the aftermath of the Cold War, one can see IOs widening in their scope and membership, and the policy space at an international level becoming increasingly filled with IOs. As a result, earlier clear-cut arrangements between IOs on the question of who (unilaterally) deals with which policy issue have become blurred. In such complex settings, ‘[t]here are few social problems that still can be dealt with, let alone solved, within or by one or a few organizations working alone’ (Hanf and O’Toole 1992: 165). As the number of overlaps between IOs has risen and is still rising, it has become increasingly important to ask how they interact. Especially in the light of scarce resources and constraints of empty coffers, one has to scrutinize whether these overlaps between IOs hamper the efficient use of their finances. Will organizational overlaps lead to a waste of resources, be it through turf wars or duplication of tasks, or do IOs work efficiently and combine forces in order to achieve their goals? Implicit in these arguments is the practical assumption, which is – unsurprisingly – quite common among researchers dealing with IOR, that cooperative relations are more likely to lead to optimal (policy) outcomes than conflictive ones. However, from a market-oriented perspective, one could argue the opposite: the more IOs compete for resources and policy solutions, the better it would be for the states, since only those IOs that are successful in providing a specific service can survive (lower costs). At the same time, enhanced competition (for resources and policy solutions) improves IOs’ responses to current challenges as competition spurs innovation and, as a result, IOs are constantly trying to outdo each other. Applied to this book’s focus on human rights protection in Europe, it is argued that cooperative relations, and not conflictive relations, are more likely to lead to the better protection of human rights, since conflict brings forth conflictive norms and thereby the possibility of ‘forum shopping’, which means that actors (states) can select from each forum what suits them best.

Along with IR, organization theory can also possibly answer the question of which factors influence relations between IOs. Yet, for a long time, issues of an interorganizational nature were ignored by organization scholars. It was not until the 1970s that IOR became a topic worth researching, especially to those advocating the resource dependency approach, which suggests that IOs seek to accumulate resources via relations with one another. This book argues that the resource dependency approach offers one explanation as to why IOs engage in relations with each other in the first place, and is particularly adequate for analyzing networks (a multiplicity) of IOs and singling out the goods of exchange processes (money, expertise, and so on). However, it is less suitable for analyzing dyadic relationships, and it does not explain what, or which, factors trigger cooperative (or conflictive) IOR.

Given the above-mentioned research gap within the literature, one needs to look elsewhere to determine which factors influence the state of an interorganizational relationship. Managers make up one group that has long been preoccupied with IOR, since they have had to cope with larger systems (for example industries or societies) and, for practical reasons, have needed to think about diverse internal and external factors faced when operating within larger systems. Therefore, IOR are tackled most importantly in the field of applied management studies and in the literature on implementation. However, the literature emerging on IOR from 1970s onwards has been broad-ranging and heterogeneous. This is where this book’s research comes in: drawing on the fragmented literature, an innovative and coherent framework is constructed in Section 2.2 of Chapter 2, bringing together interest-based, organizational, physical, and cultural factors that may have an impact on interorganizational cooperation or conflict. According to the book’s guiding thesis, the biggest threat to interorganizational cooperation is organizational self-interest, despite a shared policy interest.

1.1 The focus of the book

To answer the guiding research questions given earlier, this book looks into the issue of setting human rights standards, an area in which the overlap is most visible and in which the COE’s role is the most potentially challenged by the EU. The COE’s ‘membership increasingly overlaps with that of the EU and the EU has, by taking on greater responsibility in the area of human rights, strayed into the COE’s area of technical specialization’ (Stivachtis and Habegger 2011: 170) and threatens the COE’s role as the standard-setter par excellence in Europe. From a geographical point of view, the study therefore focuses on the internal dimension, that is, human rights protection within the EU-27. Those interested in the external dimension, such as the joint programs between the Commission and the COE targeted at non-EU member states, may wish to consult Brosig (2010).

The literature is divided into whether relations between the EU and the COE are expected to be cooperative or conflictive. Given the large number of member states (currently 47) and the sophisticated ECHR control system, the scenario of the EU replacing, or rather absorbing, the COE – ‘ “the” watchdog for human rights in Europe’ (Brummer 2010: 281) – is not very likely, at least not in the near future. Yet, one strand of the literature argues that the COE is rather skeptical about the EU’s approach toward the human rights field and sees the expanding leverage of the EU with partial disapproval. In this context, De Schutter (2007: 3–5) refers to the COE’s fear of marginalization and traces this fear back to the fact that due to the enlargement of the EU to 27 member states, the EU now forms a majority within the 47-member COE. As a result, the COE risks becoming a standard-receiver in cases for which the EU has taken legislative initiatives. In other words, no longer able to act independently, the COE often has to align itself with these new EU standards. Therefore, one would expect IOR to be conflictive. Another strand of literature argues that, while human rights form the core policy of the COE, the EU sees human rights only as a peripheral policy. In this line of reasoning, the EU does not threaten the COE’s position, and IOR will be cooperative (Brosig 2010: 15–6). This book’s research will show which of the two arguments is accurate for EU–COE relations.

1.2 The case studies

To find out whether the EU’s incursion into some of the COE’s core areas of competency has fueled the COE’s fear of marginalization and, if so, if this fear is justified, this book analyzes the following five cases in depth: the establishment of the EU Fundamental Rights Agency (FRA) in Vienna, Austria; the negotiations regarding the joint cooperation agreement Memorandum of Understanding (MOU); and IOR in the three issue areas of data protection, the fight against terrorism, and the fight against Roma discrimination. From this list it is apparent that this research analyzes two kinds of relations: relations dealing with institutional issues on the one hand and those dealing with policy issues on the other hand. Relations dealing with institutional issues can be regarded as politically sensitive and high-level ones and those dealing with policy issues are expected to be rather operational and low-level ones.

Given that the FRA and the MOU are the two most important issues in the relations between the EU and the COE regarding institutional questions, they are selected to be part of this study. With data protection, the fight against terrorism, and the fight against Roma discrimination, this research has chosen policy issues fulfilling two criteria – first, issues that both IOs are engaged in contemporaneously, otherwise there is no overlap; and second, issues that are high on the agenda of both IOs, conducive for IOR to take place and offering an interesting variance across policy field (JHA and social policy) and across time (data protection starting in the mid-1990s, fight against terrorism after 2001, and fight against Roma discrimination after 2004). For details on the case selection, see Section 2.4 of Chapter 2 and Table 2.1.

1.3 Goals and deliverables of the book

This section highlights and summarizes the book’s objectives and defines how the research contributes to the existing literature. This research is innovative in three aspects that are of theoretical as well as of empirical relevance.

• Its primary goal is to shed light on IOR between the EU and the COE by generating and providing primary data on five empirical cases dealing with policy and institutional issues in the realm of human rights.

Although the current literature acknowledges the role of the COE within the European human rights protection system, it barely subjects it to closer scrutiny, not to mention its lacking analysis of the IOR between the COE and its most important partner, the EU. There are two reasons why the COE exists, for the most part, only as a long footnote in the social science community and/or is absorbed under the heading ‘EU’: first, the COE tends not to hold too high of an opinion of itself and has a rather reticent attitude as opposed to other IOs, such as the EU; and second, the COE has acted very generously with regard to the EU, allowing it to hold its sessions in the COE Palais de l’Europe in Strasbourg, France, and adopt the COE’s symbol (the COE flag adopted in 1955 shows 12 stars against an azure background) and anthem (the COE approved Ode to Joy as the European anthem as early as 1971). Given the ‘blurring’ of the two IOs and the joint use of symbols, the public, the media, and even major scholars are confused and do not distinguish between the EU and the COE. By providing a thorough account of the EU–COE relationship in the field of human rights and exploring instances of cooperation and conflict therein, the book ai...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• List of Figures and Tables
• Acknowledgments
• List of Abbreviations
• Part I: Introduction
• Part II: Policy Cases
• Part III: Institutional Cases
• Part IV: Conclusion
• Appendix
• References
• Index