Institutional Responsibilities

Human Rights in the EU Area of Freedom, Security and Justice

• Human Rights in the EC/EU Treaties
• European Convention on Fundamental Rights
• Political Sanctions
• European Courts
• Domestic and Legal policy
• Combating Discrimination and the Protection of Minorities
• EU Enlargement
• Asylum and Migration
• Human Trafficking
• Human Rights and Economy

Human Rights in the European Foreign and Development Policy

• Common Foreign and Security Policy (CFSP)
• Development Policy
• The Long Journey Towards the Inclusion of Human Rights
• Treaties with the ACP States: from Lomé to Cotonou
• The Role of European NGOs
• Impact of European Cooperation: Strengths and Weaknesses
• Outlook

Internet links

Abbreviations

[Zusammenfassung]
Wolfgang S. Heinz: The European Union Human Rights Policy

Institutional Responsibilities

On the EU-level, there are many different players and institutions with influence in the area of human rights. For a long time, however, the EU has not succeeded in creating institutions with a clear human rights' mandate.

The European Parliament, especially the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs and the Petition Committee, the European Court of Justice (ECJ) and the European Ombudsman are responsible for the respect for human rights at EU level. They have a special responsibility for the control of the executive.

The EU Commission and European Council lay down the political guidelines on human rights and control their implementation. In the Council, the working party "Human Rights" (COHOM) coordinates the formation of public opinion. It publishes the EU human rights' report (cf. Internet Links).

Within the realm of domestic and legal policy (the traditional pillars of State sovereignty) the EU possesses no specific jurisdiction. Nevertheless, during the European Council in Vienna 1998, the EU Commission action plan for developing an area of freedom, security and justice was adopted. It is intended to bring about improved protection from threats by third parties and stronger cooperation between criminal and civil law. The Council for Justice and Home Affairs is the responsible body.

Within the EU development cooperation since 1999, the new Directorate General for External Relations (EU Commissioner Christopher Patten) has been responsible. The section on human rights and democratisation in this directorate is responsible for human rights questions worldwide and for coordination within the Commission. The Directorate General for Development is responsible for the foreign policy and cooperation with the ACP States, and has a special department for human rights.

Human Rights in the EU Area of Freedom, Security and Justice

Within the European Union, cooperation in the domestic and legal policy is at the forefront of the political agenda on human rights (third pillar of the EU policy). This includes the struggle against the drugs traffic, organized crime and terrorism. Institutionally, the respect for human rights within the EU is above all a task for the individual EU Member States.

Human Rights in the EC/EU Treaties

In the treaties establishing the EC there are no special clauses on the protection of human and citizens' rights.

There were no special clauses concerning the protection of human and citizens' rights in the treaties establishing the European community. The EEC, as forerunner of the EU, was originally concerned exclusively with the free movement of goods, people, services and capital, and for a long time human rights - with the exception of communal voting rights, voting rights for the European Parliament, prohibition of discrimination and the right to equal compensation for similar or equivalent work - scarcely had a part to play.

The EU Treaty integrates human rights into the legal system of the Community.

According to the European Union Maastricht Treaty, which came into force on 1 November 1993, the aim of the Common Foreign and Security Policy of the Union was "to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms" (Title V, Article 11 EUT).

With this treaty, human rights were integrated into the legal system of the community. In Art. 6 (1) it is stated that the EU is founded upon the principles of liberty, democracy, respect for human rights and fun-

Box 1: Development of EU Human Rights' Policy

Source: Barbara Lippert 1995, Menschenrechtspolitik, in: Weidenfeld, Werner/Wessels, Wolfgang (pub.), Europa A-Z, Bonn, P. 263 (supplemented by author).

damental freedoms, and the rule of law, principles that are common to all the Member States. According to Art. 6 (2) the EU shall respect fundamental rights, as guaranteed by the European Convention on Human Rights (ECHR) and as they result from the constitutional traditions common to the Member States as general principles of Community Law. There was a lively debate in the 90s concerning how to better embody human rights within the EU legal provisions. It was suggested on the one hand that the EU should join the ECHR as an organization (the first proposal was made by the EU Commission to the EEC in 1979). This would have been a difficult step, however, because only States can become members of the Convention. On the other hand, it was requested - especially by Germany - that the EU should develop its own Charter of Fundamental Rights. This proposal was presented in 1999 by Foreign Minister Fischer at the Cologne EU summit, which commissioned a convention to work out a draft.

European Convention on Fundamental Rights

As a result, a European Convention on Fundamental Human Rights was set up under Roman Herzog, who was the former Federal President of Germany. This was signed in December 2000 by the Council of Europe in Nice (cf. The European Charter on Fundamental Rights: On the Way to a European Constitution? Eurokolleg series Nr. 45).

The Fundamental Rights Charter includes all the citizens' rights. It is contentious, however, whether they will be legally binding within the framework of the European Constitution.

For the first time in the history of the Union, the Charter on Fundamental Rights combined in a single text the entire civil, political, economic and social rights of European citizens. These rights were based in particular on those recognized in the European Convention on Human Rights (ECHR); but the Charter also adopted new topics, such as data protection and the bioethical convention of the Council of Europe. The Charter will be part II of the European Constitution. The possibility of individual complaints, however, is very much restricted. EU citizens and governments are already referring increasingly to the Charter, as well as the first instance of the ECJ.

Political Sanctions

The European Treaty provides for a procedure in the case of a violation by a Member State of the fundamental principles of the Union.

According to Article 7 EUT, certain rights of a Member State derived from the Treaty may be withdrawn if this State "seriously and persistently" violates these fundamental principles.

The following procedural steps are provided:

1. The Council of Europe shall declare unanimously, upon the proposal of the Commission or one third of the Member States, following the approval of the European Parliament and having obtained the view of the State in question (but without the participation of the concerned State), that a serious and persistent violation of the principles proclaimed in Article 6 Para 1 EU Treaty has taken place.
2. Subsequently, the Council may withdraw certain member rights, such as the voting rights in the Council. This procedure is purely political, without involving the advice of an independent body of experts or a legal re-examination by the ECJ.

The Member State may not, however, contrary to the Council of Europe, be excluded. Up to the present, the sanctioning process has not been very convincing. So-called preventive sanctions were imposed

in one case against the Austrian ÖVP-FPÖ (People's Party-Freedom Party) government. In this case, it concerned 14 bilateral sanctions, which were announced, however, by the former Portuguese presidency and thereby appeared as a "Union" measure. In the case of Italy, no sanctions have up to the present been imposed against the alarming developments under Prime Minister Berlusconi (persistent attempts to influence justice and the media). The EU procedure for protecting fundamental values internally seems therefore to be relatively unconvincing.

European Courts

There are two courts of justice at European level. The European Court of Human Rights (ECHR) in Strasbourg is an organ of the Council of Europe that handles individual complaints relating to the European Human Rights' Convention. Despite a comprehensive reform in 1998, it is still completely overwhelmed by an impossibly large number of cases, especially now from Eastern Europe and Russia. Further reforms are therefore now being discussed e.g. the setting-up of a preliminary examination chamber.

The EU Court of Justice in Luxembourg (ECJ) decides in disputes between the Member States and the Commission. Individual citizens can only appeal against decisions addressed to themselves personally, and in other cases only if they are directly and individually affected by the legally relevant acts (Art. 230 EC Treaty).

Through the adjudication of the EU Court of Justice (ECJ), however, a protection of citizens' rights has increasingly developed within the former European Community (EC). In this, the ECJ is especially based on Art. 220 (previously Art. 164) of the Foundation Treaty of the European Community. This provides that the court shall ensure the protection of the law in the interpretation and application of the Treaty. Decisive also for the ECJ was the fact that the Treaty rests on the European Community model, which includes the guarantee by all Member States of recognized fundamental laws. In its adjudication, the ECJ is oriented towards the European Human Rights Convention and the national legislation on fundamental laws. In this way, it becomes possible to avoid a constitutional shortcoming.

With the coming into force of the EUT, the ECJ according to Art. 6 (2), also has the authority to verify the compatibility of EU activities with those of human rights.

Domestic and Legal policy

The domestic and legal policy - together with the responsibility for the respect for human rights - remains above all the responsibility of the individual EU Member States. EU-wide projects were also agreed upon for some few topics (e.g. in harmonizing the asylum policy, see below). A closer cooperation is sought between the judiciary and the police.

Following the terrorist attack in New York of September 2001, cooperation, especially between the Executive and the Judiciary, was strengthened. The new joint European Arrest Warrant for 32 especially serious criminal acts and a simplified extradition process are two important outcomes of this cooperation, which would not have come about in such a short time without the terrorist attack. Other examples are screen searching, the introduction of biometric data in EU visas and the extension of frontier information systems. The Schengen Information System (SID) aims at a comprehensive data collection of all non-EEC nationals who are deported or turned away at the borders. The EU is now considering the inclusion of data for all travelers from non-EU States into this information system.

Combating Discrimination and the Protection of Minorities

The EUT engages the EU in an effective confrontation of discrimination, including not only discrimination on account of nationality, but also on account of sex, race, ethnical origin, religion or religious beliefs, age, handicap or sexual orientation. The legally non-binding EU Charter of Fundamental Rights also forbids discrimination on grounds of genetic characteristics, colour of skin, language, political or other convictions, and membership of a national minority, property or birth.

The protection of minorities is among the tasks of the EU human rights policy, and is controlled by the Commission for External Relations. It is based on Art. 6 EUT, in which the European Human Rights Convention is referred to. The EU Charter of Fundamental Rights stresses equality before the law (Art. 20) and the prohibition of discrimination (Art. 21).

The European Council has adopted two directives on the guarantee of equal treatment without reference to racial or ethnic origin, which still have to be adopted in Germany: the Council directives 2000/43/EC and 2000/78/EC. This also includes a recommendation for the adoption of a law against dis-

crimination, to be submitted to the German Federal Parliament (Bundestag).

In 1997, the first monitoring unit for the implementation of human rights within the EU was created: the European Monitoring Centre on Racism and Xenophobia (EUMC) in Vienna. It started its work in 1998. Its aim is an Europe without racism, xenophobia and anti-Semitism, and is committed to the values of tolerance, equality and solidarity, as well as respect for human rights and democracy. Its main task is the comparative collection of data and analyses relating to racism and xenophobia, as well as the diffusion of knowledge concerning good practices. The EUMC has published reports on Anti-Discrimination Legislation in the Member States on the situation of Islamic communities in five European cities, on racism in the media and hostility towards Islam after 11 September 2001. The European Racism and Xenophobia Information Network (RAXEN) was also set up with contact points in 15 countries.

In the European Parliament, moreover, the establishment of a Human Rights' Monitoring Agency in the European countries was proposed, but is still encountering opposition in the EU.

EU Enlargement

Respect for human rights is playing an important part in the enlargement of the EU. According to Art. 49 of the EUT, new members can only be accepted if they agree to the acquis communitaire (the collection of EU rules). This includes the above-mentioned articles on respect for human rights. The European Council in Copenhagen stipulated in 1993, that the candidate State must have stable institutions, and guarantee democracy, the rule of law, human rights and respect for the protection of minorities. For the first time, in addition to economic standards political criteria are also included: the guarantee of democracy, a State under the rule of law, human rights and the protection of minorities (Copenhagen Criteria).

In the course of the accession process, candidates are controlled annually by the Commission with regard to the application of minority rights. There is also investigation as to whether the applicant countries have established stable institutions, and are promoting democracy, a State under the rule of law, human rights, and respect for minorities and minority rights. These reports are addressed annually to the European Parliament and the European Council by the European Commission.

Following the conclusion of the 1963 association agreement between the EC and Turkey, the option for EEC membership exists, but Turkey only became an official candidate for membership of the EU through the European Council at Helsinki in 1999. Finally, at the EU summit in Copenhagen in December 2002 a renewed examination of Turkey's readiness for accession negotiations was promised for December 2004. By then, however, all the Copenhagen criteria must have been fulfilled. The last of the EU Commission's progress reports testified to considerable progress in Turkey, such as the abolition of the death penalty, mitigation of the State protection laws, limited authorizations of Kurdish language programmes, and human rights' training for the police.

Not until 2004 will it be decided whether the EU will begin accession negotiations with Turkey.

Nevertheless, according to the report, Turkey had not completely fulfilled the political criteria. There are still numerous limitations in fundamental rights and freedoms. Thus, still important restrictions on freedom of speech (especially with the press and radio), freedom of assembly for peaceful purposes, freedom of association, religious freedom and right of appeal before the law remain. The lack of civilian control over the army remains disturbing - a situation that is evident in the dominant role the army plays in political life through the National Security Council. The continued existence of torture and maltreatment, the lack of civil control over the military, the position of people under arrest on account of non-violent expressions of opinion, and the disregard of the decisions by the European Court of Human Rights is still considered as a problem.

Asylum and Migration

The EU Commission drew up a communication to the European Council and the European Parliament providing a precise legislative programme for the creation of a common area of freedom, safety and justice. A chapter is devoted to the topic of asylum and migration.

In accordance with the criteria from Art. 63 EUT and the Tampere EU summit in Tampere/Finland of October 1999, the Commission treated the subject, among others, from the standpoint of (1) partnership with countries of origin, and (2) common EU asylum policy.

In order to improve the partnership with the countries of origin of the asylum seekers, action plans were prepared by a high-ranking working party comprising the following countries: Morocco, Afghanistan, Pakistan, Sri Lanka, Somalia, Albania and the Western Balkans. By this, the intention is to stress that special circumstances of a political, geographical and socio-economic nature within the countries of origin also have effects on the desire for asylum and migratory movements in Europe. A budget line of €10 mill. is available to the Commission for this purpose.

In respect of the common asylum policy, the Commission has already initiated harmonisation plans. The Berlin office of the UN High Commission for Refugees has welcomed some of these proposals, but at the same time warned that measures for the control of illegal immigration or for internal security also concern illegal immigrants and persons requiring protection, because the appropriate instruments make no adequate distinction between these different groups of people.

The UN High Commission for Refugees demanded the adoption of minimum European standards, whose aim would be the unlimited and comprehensive application of the Geneva Refugee Convention, as well as human rights obligations. Germany is reproached for having impeded a compromise acceptable to the other Member States, and implemented a more restrictive proposal on several occasions. (cf. Comment by the Berlin UNHCHR representation before the Committee for Human Rights and Humanitarian Aid of the German Federal Parliament, 04-09-2003).

Fourteen of the fifteen Member States largely agree upon the harmonisation of the asylum law, whereas the Federal government -with an eye on the political power relationships within the "Bundesrat" (Federal State Chamber) - supports an especially restrictive position. This applies rather to the question of subsequent immigration of family members (and age limits for family members), work permits for refugees, and whether "non-State persecution" justifies its own "subsidiary" protection in the refuge country (Germany is only prepared for "toleration" in this case).

The EU Commission made a proposal to the Member States for reforming the asylum law in June 2003 at the EU summit in Thessaloniki (Greece) which is further worked on. The aim is a common policy in regards to illegal immigration, the borders, the return of illegal immigrants and to develop the cooperation with third countries.

The European Refugee Fund offers financial support for the acceptance, integration and voluntary return of refugees. For this purpose, € 216 mill. are available between 2000 and 2004. In Germany, the European Refugee Fund is administered by the Federal Office for the Recognition of Foreign Refugees.

Human Trafficking

In December 2000, the Commission adopted a proposal for a framework decision on combating the trafficking in human beings. The aim of the proposal was to find common definitions and punishments, in order to improve cooperation in prosecution and justice. In mid-2001, a second phase for the STOP Programme was introduced by the European Council. This concerned a promotional and exchange programme against trafficking in human beings and the sexual exploitation of children. It specifically aims at public prosecutors, police, judges, immigration authorities and other public departments. It is looked into how administrations, police and justice handle complaints by women, and how far they deal with their special difficulties. In this way, a more sensitive approach is sought for victims of the trade with women, and finally, an effective way of combating it.

Human Rights and Economy

The topic of human rights and economy in the EU is of special importance for external relations. But the EU also commits itself within the OECD to the inclusion of the economy in the topic of human rights. The EU has thus played an important role in improving the OECD guidelines for multinational enterprises. In consequence, investors worldwide will be held responsible, and it is thus accepted that investors not only have rights but also duties in respect of global engagements. The guidelines are based on the self-regulation and should respect human rights.
Another important topic consists of economic, social and cultural human rights, such as the formation of trade unions, and rights to health, education and food (1966 UN Covenant on Economic, Social and Cultural Rights, 1961 European Social Charter, and the so-called Revised European Social Charter of 1966, hitherto unsigned by Germany).

Human Rights in the European Foreign and Development Policy

Common Foreign and Security Policy (CFSP)

In regard to the issue of Iraq, problems of a Common Foreign and Security Policy (CFSP) have become very evident. Both the EU Member States and candidate members were unable to adopt a common position on the question of participation in the Iraq war, which, beside the question concerning the possession of weapons of mass destruction, also exposed questions of human rights and the humanitarian aspects (France/Germany/Belgium among others against the war; Great Britain/Spain/Poland among others in support of the war)

The CFSP is decided at the level of governmental cooperation. As a committed fundamental and human rights value-based community it is devoted to an active human rights' policy. At the same time, human rights are only one of several aims, which include security and economic policy, for example.

Essential instruments of the EU human rights policy are (cf. Tannous, Isabelle 2002, Menschenrechtspolitik, in: Weidenfeld, Werner/Wessels, Wolfgang (ed.): Europa von A-Z, Bonn: S. 293):

• confidential and public assessment of the human rights situation
• political dialogue
• human rights and democracy clauses in agreements with third parties
• Delay, suspension and abandonment of contractual commitments and agreements
• Coordinated procedure of the EU States in international organisations
• Imposition of economic sanctions (Art. 301 EUT)

The aim of the European human rights' policy in difficult situations within a partner country is also to seek a dialogue with the government, opposition, elites, and civil society for constructive solutions. Political dialogue that the EU maintains with many countries can assist this approach.

The EU conducts a special human rights' dialogue with partner countries, such as the USA and Canada, at half-yearly intervals (principally in the shape of the "Troika" of present, past and future EU presidencies). These are supplemented by gatherings of experts before the meeting of the UN Human Rights Commission and the annual meeting of the UN General Assembly.

In addition to the large group of ACP States in Africa and the Caribbean with more than 70 countries, the EU conducts discussions with the Mediterranean, Asian and Latin American countries (the so-called Barcelona, ASEAN/ASEM and San José processes). Further dialogues take place with the EU candidates and the Balkan States.

At present, the EU is only carrying on human rights' discussions, in the strictest sense, with two countries: China and Iran, where the dialogue was for a long time interrupted but recommenced in December 2002. During these exchanges, human rights' topics are discussed at governmental level and with NGOs, as well as with representatives of civil society.

The political dialogue with "difficult countries" concerning measures such as the suspension or termination of development cooperation is oriented in practice on relevant foreign policy criteria, such as the size of a country, its security policy, economic importance and similar factors.

Clear, value-oriented reactions to authoritarian regimes sometimes represent a special challenge in foreign policy practice, at least if the aim of an equally coherent and effective policy is accepted.

Even before 1995 the European Community had included in more than 30 agreements respect for human rights in the EC Member States, ACP cooperation States and other countries - nevertheless with various formulations.

In the treaties with the Andean Pact and Brazil, for example, human rights were referred to as an essential element of cooperation, whereas cooperation with Argentina, Chile, Macao, Mongolia, Paraguay and Uruguay was agreed upon on the basis of respect for democracy and human rights that should inspire the domestic and international policy of the contracting partner. In the treaties with 13 Arabian States, however, there was only a reference to respect for the United Nations Charter.

In 1995, the European Council decided to include a human rights' clause in all agreements with third States. In doing so, it was distinguished among countries, e.g. whether a suspension notice is included or not. In the standard clause, this means that human rights and democracy are "essential elements" of this agreement; they have meanwhile been adopted in treaties with more than 120 countries.

Reactions of partner countries to the EU's desire for a specific human rights' clause in the agreement differed widely. Whereas the African and Latin American States agreed to it, the ASEAN States, China and the Arabian countries refused it. In the rest of Asia,

only a minority of States were in agreement with it. By the end of 1995, however, 70 ACP States, 15 Latin American, 20 OSZE, two Mediterranean, six Asian States and South Africa have each adopted human rights and democracy clauses.

The EU has developed its own guidelines for torture and the death penalty, which provide for an active procedure in these two areas of human rights' violations (cf. the EU Annual Report on Human Rights 2002, appendices 13 and 14). The instruments employed are political dialogue, petitions to the government concerned (démarche), and bi- and multilateral cooperation. A trade regulation, moreover, is now being developed for equipment that could be employed for torture or for other humiliating treatment or punishment - including the implementation of the death penalty.

The EU is also trying to insist on respect for human rights on the subject of arms export. According to the Stockholm Peace Research Institute (SIPIRI) statistics, the EU Member States France, Great Britain and Germany, are on 3^rd, 4^th and 5^th place after the USA and Russia in the export of arms. In 1998, a voluntary European Union Code of Conduct on Arms Export was adopted. The EU Member States have committed themselves not to grant an export license if there is a risk that the weapons could be used for internal repression within the countries concerned. This applies particularly if the UN, the Council of Europe and the European Union have established serious human rights' violations.

Concerning the export of arms a cooperation with the USA exists. This resulted in the EU-US "Declaration on the Responsibility of States and Transparency regarding Arms Exports" of 2000. Both sides have committed themselves to strengthened public accountability of weapons exports, professed their support for the promotion of democracy and respect for human rights, and promised to export no weapons to countries in which these could be used for internal repression and violation of internationally recognized human rights. In addition, the intensification of inner-State and inter-State conflicts, excessive arms race, and regional instability are decisive factors to be considered.

At the United Nations, the annual spring conference of the Human Rights' Commission (HRC) is of particular importance. For months, the EU tries to harmonize its positions, which not infrequently means that the "common denominator" finds expression in a rather restrained position. Nevertheless, the EU point of view is often the most comprehensive one, because it offers detailed criticism of the human rights' situations in some 30 countries. It also proposes most of the resolutions to countries - one of the Commission's most powerful instruments, which has no sanction mechanism at its disposal. Government representatives from a fair number of countries from the South regard this rather critically, or even reject this criticism "of the South". With reference to its present dominance in world politics and its past as a colonial power, the "North" is reproached for playing the part of an arrogant schoolmaster. The effect of this in the debate is to distract from the essential criticism, which is mostly rejected by the governments concerned as being false or exaggerated. The intense politicalization of the HRC for all sorts of reasons, however, cannot be ignored. The discussions and decisions are increasingly on the lines of the North-South conflict and influenced by regional group identities rather than on an objective analysis of human rights' situations. They can only be mitigated in the medium to long term by patient cooperation extending over the regions of the world.

Development Policy

With a proportion of over 55%, the EU and its Member States are the largest contributory institution to public development cooperation, with the lion's share, moreover (just under 90%), coming from the individual EU Member States. A small budget is set aside for the promotion of human rights (and democracy), which in 1995-99, for example, amounted to less than one per cent of the EU development budget. In absolute terms, however, the amount rose from € 200,000 (1987) to about € 100 mill. by the end of 1999 and in the following years.

It should be remarked, nevertheless, that the field of human rights has traditionally been distinguished, not so much by high investment, as by an especially careful (i.e. work-intensive) choice of partners, strategies and intervention levels.

In recent years, the EU has reacted to the frequently expressed criticism of its non-uniform European development policy, and its development of political activities increasingly directed towards combating poverty. In the new EU development strategy of April 2000 it states:

"The Community considers development policy as a multidimensional process that covers broad-based equitable growth, social services, environment, gender issues, capacity and institutional building, private sector development, human rights and good governance. The concept of `sustainable development' encompasses these new priorities."

One of the six priority fields of action in European development cooperation is the development of institutional capacities for administrative management and the rule of law. Among these are the new human rights' administrative decrees of 1999, which for the first time in this area provide a legal basis for EU activities. The values of the common foreign and security policy of the EU are intended to reflect these priority fields of action. For this, the EU Commission is proposing to develop its own capacity and also to strengthen its cooperation with other donors. At the same time, good governance, human rights and rule of law are cross-sectoral issues for the whole EU development cooperation.

The Long Journey Towards the Inclusion of Human Rights

1958 marked the beginning of the EEC development policy, but only in 1991 the European Community (EC) announced that in the future it would set up new political criteria for development cooperation. In a first attempt, the European Council defined the EC human rights and development policy in its November 1991 declaration: "Human Rights, Democracy and Development Cooperation.(")

Historically, the support of certain countries has come about in an uncoordinated way and by means of outstanding examples e.g. measures in the South African apartheid State and in Chile after the 1973 coup. Only in the early 90s did the development of coherent budget lines according to countries and issues come about. In 1994, the European Parliament incorporated the most important budget lines for promoting human rights into a separate chapter (B7-70) entitled "European Initiatives for Democracy and Human Rights", which concentrated on some 30 priority countries.

A clear legal basis was first created in 1993 with the implementation of the Maastricht Treaty. In 1998, however, the European Court of Justice considered that the legal bases for implementing the budget lines in the area of human rights and democracy were insufficient, and its implementation was consequently abandoned in June and July. Two decrees on the development and strengthening of democracy and the constitutional state, as well as respect for human rights and fundamental freedoms, based on Art. 235 and 130w EC Treaty, came into force in May 1999 and now form the legal basis for all EU budget-financed activities for promoting human rights and democracy arising out of chapter B7-70.

Following the experiences with democratisation and human rights' projects in Latin America, the Commission approved in July 1998 the integrated approach of a multi-year programming, in order to procure the greatest possible effect and publicity for the community measures in the region. This approach, originally followed in Latin America (budget line B7-703), now also applies to South and South-East Asia (budget line B7-707) and the Mediterranean (budget line B7-705). With the multi-year programming, the EU Commission is trying to react to the new human rights' decrees, which provide for closer coordination among representatives of the Member States and dialogue with the civil society organisations of the regions concerned. It is also intended to ensure the harmonization and complementarity of the projects in the area of human rights with the development aid strategies of the Community.

Treaties with the ACP States: from Lomé to Cotonou

Since 1975, the EC and ACP States have agreed to their cooperation under the Lomé Treaties in the areas of trade, agriculture and industry, as well as to the extent of the EU development work. The treaties were developed over several years (Lomé I-IV; Cotonou).

In the Lomé III treaty of 1984 for the first time reference was made to human rights, without, however, coming to a conditional agreement on this subject. In the Lomé IV treaty of 1990 the signatory States had already adopted joint commitments. Art. 5 states as follows: "Cooperation shall be directed towards development centred on man, the main protagonist and beneficiary, which thus entails respect and promotion for all human rights." Respect for human rights is seen as a basic factor in development.

The EC members and ACP States committed themselves to take action in cases of discrimination against foreign workers, students and other foreigners legally residing in their countries. The article also stipulates that ACP States can receive support for structures that promote human rights. In the revision of the Lomé IV Agreement 1995, human rights, democratic principles and the rule of law were recognized as essential elements of the agreement, and a connection between good governance and more effective development was established in Article 5. In addition, a suspension mechanism that enables cooperation under certain conditions and in a prescribed procedure to be suspended was agreed upon.

Finally, in the 2000 Cotonou Agreement the contribution to freedom and security and to the promotion of a stable and democratic political environment are indicated as objectives of the partnership (Art. 1). Stressed in Art. 9 as essential elements are respect for human rights and fundamental freedoms (together with the establishment of a reference to the European Human Rights' Convention), democratic principles and the rule of law (Art. 9, Para 2 of the Cotonou Agreement). These are equally applicable to both the domestic and foreign policy of the contracting parties. The EC undertakes support for the political, institutional and legal reforms, as well as for the capacity-building of the State and private players (Art. 9, Para 4). The decisive instrument for the discussion and evaluation of the progress achieved between the ACP and EU Member States is the regular political dialogue.

Art. 96 of the Cotonou Agreement regulates the procedure in the case where a contractual State - in spite of regular political consultations - fails to comply with its undertaking to respect human rights, fundamental freedoms, democratic principles and respect for the law (the essential elements according to Art. 9 Para 2). The contractual State must then inform the other signatories thereof, in order to permit a comprehensive examination of the situation and introduce consultations with the aim of remedying the deficiencies.

In the case where the consultations do not reach an acceptable solution for all the parties, or in a situation of special urgency, the EU may take "suitable measures," which can be rescinded as soon as the grounds for them are removed. Accordingly, suspension of the agreement is the most extreme measure.

Box 2: EU Negative Measures: 1998 - 2002

Source: Annette Windmeisser: Der Menschenrechtsansatz in der Entwicklungszusammenarbeit. Menschenrechte, Demokratie, Rechtsstaatlichkeit und "good governance" in der Entwicklungszusammenarbeit. Das Beispiel der AKP-EU-Beziehungen, Vienna 2002, pp. 377-387.

In February 2002, the EU announced sanctions for Zimbabwe: travel restrictions and freezing of the accounts of more than 70 members of the leadership. Since the situation had not improved a year later, the sanctions were extended in February 2003.

In short, it is a fact that the EU lacks a systematic and transparent procedure for human rights violations. Clear criteria for the measures are hardly discernable. Almost without exception, the sanctioned countries concerned are - apart from Nigeria - small African States, as well as a small State in Southeast Asia, Burma/Myanmar. Sanctions are mostly applied for reasons of undemocratic changes of government. As Windmeisser in her above study points out, everyday human rights' violations - especially those of an economic, social and cultural nature - do not lead to the introduction of consultation procedures by the EU.

A coherent foreign policy is lacking. Thus Algeria, despite the employment of questionable methods in combating terrorism during the 80s, continues to receive support through the EU, despite the existence of a human rights' clause in the agreement between Algeria and the EU. Between 1991 and 1994 the Ethiopian dictatorship received EU financial support. And the repressive regime of Sali Berisha in Albania was supported from 1990 onwards. Even Yugoslavia was able to count on a financial aid packet in the spring of 1997.

The Role of European NGOs

There is increased cooperation with the European NGOs, that should be organized in a less bureaucratic way, more efficient and conceptionally demanding. Even the German Foreign Office, in the 5^th Federal Government Human Rights' Report 2000, stressed that the challenges of the future EU policy involves increased transparency "especially in the field of combining abstract human rights' political objectives with a more concrete influence by way of project support", and requested access for NGOs working in this area to the project planning and possible applications, in order to facilitate the implementation of the project.

Box 3: European Initiative for Democracy and Human Rights 2002-2004

The EU Commission itself is now increasingly attempting through its own EU Human Rights Forum to bring together the representatives of EU institutions, EU Member States, NGOs and the academic world to a joint discussion of conceptional and questions of enforcement (Conferences in Brussels 1999, Venice 2000, Paris 2000, Brussels 2001 and Copenhagen 2002). Cooperation with the NGOs concerns their participation in the development of country strategies and in the strategic planning of the EU. And last but not least, instruments for the monitoring of human rights' situations in the partner countries must be devised.

Impact of European Cooperation: Strengths and Weaknesses

On account of the large number of measures, it is hardly possible to give an overall assessment of the strengths and weaknesses of the EU programme or projects relating to the reinforcement of human rights. The EU evaluations (as published in the Internet, cf. Internet Links) criticize, among other things, insufficient priority setting, lengthy decision phases, insufficient promotional guidelines and lack of indicators. They deplore, moreover, a neglect of support for economic, social and cultural human rights.

The recommendations propose a continuation and extension of EU activities and numerous proposals that especially concerned management within the Commission, and the relationship of the Commission to the local EU delegations (embassies).

In April 1999, an evaluation of the European Mediterranean Association Democracy Programme (MEDA) took place. The report reached the conclusion that the programme was for the most part efficient, well conceived, and dealt in a logical way with the most important questions of human rights and democracy in the MEDA countries. Institutional effectiveness was generally considered to be good.

In 1997 an Evaluation of the PHARE and TACIS Democratic Programme was undertaken (PHARE refers to the Poland and Hungary Action for Restructuring of the Economy, later extended to the Central and East European States. TACIS deals with Technical Assistance to the Commonwealth of Independent States). It concluded that this programme had contributed to the consolidation of the NGOs in the recipient countries. It had also furthered the transfer of know-how and partnership between the civil society of East and West, and enhanced the degree of awareness of the EU.

Outlook

The claim to regard and realize human rights policy as a cross-sectoral task is repeatedly raised, but there is quite a considerable need here for action.

In the area of foreign and development policy the instruments that exist for encouraging positive development through criticism and promotion of human rights are becoming increasingly differentiated. At the same time, it must always be borne in mind that the promotion of human rights and democracy is only effective when linked to internal social and political processes, and that these seldom permit enforcement or even decisive influence from outside. This is especially the case for the larger countries. At the same time, the topic of human rights is also integrated within the common foreign and security policy of the EU, and countries are consequently treated according to their political and economic weight. Coherence and a courageous policy are therefore constantly to be demanded.

Human rights within the inner sphere of the EU play a much more modest role. After the September 2001 terrorist attack, cooperation between the executive and judiciary (police and justice) has become more consolidated. The demand for State protection has moved increasingly to the fore, and concurrently the idea of individual freedom that should be protected from possible abuse of power has considerably declined in importance. The counter-argument insists, of course, that only the State is capable - and is under the obligation through the employment of security measures - to protect the necessary area of freedom. In the medium term at least, the protection of human rights will remain the responsibility of the individual Member States, allied to some Europe-wide projects (European arrest warrant, harmonisation of the asylum policy). On the other hand, the debate on the EU Charter of Fundamental Rights as part of the new European Constitution could lead to a certain revaluation of human rights for EU citizens, but only if it results in legally binding fundamental rights with a clear appellate procedure.

The EU information policy concerning its human rights' policy has improved considerably. Last but not least, the successful initiative of both foreign ministers of Great Britain and Germany should be recalled, according to which the Union in regular annual reports by the European Council renders an account of its activities (cf. Link List).

In view of the newly arising international power weighting between the USA, UN and EU following the Iraq war, it is an open question as to what extent a stronger profiling of the EU, as a leading power and (in the medium term) military player, might also lead to changes in the importance attributed to human rights.

Internet links

Abbreviations

ECHR

European Convention on Human Rights
EP	European Parliament
EU	European Union
EUMC	European Union Monitoring Centre on Racism and Xenophobia
EUT	EU Treaty (1992 Maastricht, 1997 Amsterdam, 2001 Nice)
DC	Development Cooperation
CFSP	Common Foreign and Security Policy
NGOs	Non Governmental Organisations

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Wolfgang S. Heinz: The European Union Human Rights Policy

Throughout the long road from an economic to a political community of the EU, the importance of the human rights topic has increased considerably. Promotion and protection of human rights have become prominent objectives, especially for the external relations of the EU. Often, the assertion of human rights is seen by civil society as a cross-sectoral task to be realized as such. But there still is a need for considerable qualified development by the EU.

In the domestic area, however, human rights play a comparatively less significant role. Here, the responsibility of the nation state predominates by far. Following the September 2001 terrorist attack in New York, cooperation, especially between the executive and judiciary, has been increased. The new harmonized European Arrest Warrant for more than 30 serious criminal offences as well as an easier extradition procedure are two important results of this cooperation.

The focus is ever more on State protection. In consequence, the idea of individual rights to freedom that should safeguard the individual from possible abuse by the State has become considerably less important. The counter-argument, of course, maintains that only the State is able - and obliged through measures of security - to protect the essentially private area. The responsibility for the respect for human rights rests above all within the jurisdiction of the individual states, but some common EU-wide projects have also been agreed upon. On the other hand, the debate over the EU Charter on Fundamental Rights as part of the new European Constitution could lead to a revaluation of EU citizens' rights. This also includes the question of how the EU shortcomings in the respect for human rights and democratic structures within the new and old EU Member States are monitored and, if necessary, critically addressed. The instruments for this, in relation to the second group, appear to be insufficiently mature and credible.

In addition to the security and economic policies, the promotion of human rights is also an objective of EU foreign policy. A wide array of instruments was created for its implementation. Among these are the political dialogue with the ACP and various regional groups of states and the possibility of suspending development cooperation. The importance of human rights in EU development cooperation has considerably increased, from a rather marginal position in the Lomé III Agreement up to the Cotonou Agreement of 2000, in which human rights along with fundamental freedoms, democratic principles and the rule of law have become one of the essential criteria for cooperation.

The cooperation with European NGOs is becoming increasingly important. But there is plenty of room here for further improvements in order to achieve a less bureaucratic, more efficient and conceptionally more demanding cooperation.