This chapter examines the role of the European Union (EU) and provides a contextual examination of the role of states as protectors and enforcers of human rights. The EU is a unique organisation, in that its Member States have set up common institutions to which they delegate some of their sovereignty so that decisions on specific matters of joint interest can be made democratically at the European level. This pooling of sovereignty is also called ‘European integration’.
Although the original EC Treaty did not contain any human rights clauses, as these were considered within the realm of the Council of Europe, the EU has long been committed to human rights. One of the original aims of European integration was to prevent the atrocities of the Second World War from being repeated and the first EC Convention of 1957 contained human rights provisions such as the prohibition of discrimination, the freedom of movement and the right to equal remuneration.
European integration has come a long way since it was first proposed by the French Foreign Minister Robert Schuman on 9 May 1950. Initially, the EU consisted of only six countries: Germany, Belgium, France, Italy, Luxembourg and The Netherlands. Denmark, Ireland and The United Kingdom joined in 1973, Greece in 1981, Spain and Portugal in 1986, and Austria, Finland and Sweden in 1995. In May 2004 the biggest ever enlargement took place with 10 new countries joining the EU. This enlargement consisted of eight Central and Eastern European countries (the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia) together with Cyprus and Malta. In January 2007 there was a further enlargement, with Bulgaria and Romania becoming Member States. Today, the EU consists of 27 countries with a joint population of around 500 million. Croatia, Macedonia, Montenegro, Albania, Iceland, Serbia and Turkey have applied for membership.
The European Union is discussed separately from the organs dealt with in Part II (Fora) because:
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It is not a human rights forum that sets standards and supervises compliance with human rights treaties. It is a supranational (governing) structure, set up with the original aim of creating a common market.
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Member states have transferred parts of their national sovereignty to the EU. It has to exert such sovereign power in accordance with human rights law. The fora mentioned do not, themselves, exert sovereign power but rather supervise compliance.
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The European Union can act in international fora to stimulate and contribute to compliance with human rights.
This chapter begins with an examination of the EU organs relevant for human rights, thereafter discusses compliance with human rights in the internal order of the Union and concludes with the role of the EU in international affairs.
The European Union is a community of democratic European states, committed to the promotion of peace and prosperity. The principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law are inherent to the European integration process.
A. Main actors in the human rights context
From 1993 until 2009 the ‘Three Pillar’ system formed the basic structure of the European Union. This structure divided topics into pillars based upon their decision making processes. The entry into force of the Lisbon Treaty abolished this structure and reformed the distribution of competences between the Union and Member States. The treaty also gave the Union ‘legal personality’, permitting it to conclude international agreements and to act in the international arena in a more coherent way.
In the European Union, the five most important institutions playing a role in shaping human rights policy are: the European Council, the Council of the European Union, the European Commission, the European Parliament and the Court of Justice. The Fundamental Rights Agency is charged with providing the relevant institutions and authorities of the Community and its Member States with assistance and expertise relating to fundamental rights in order to support them when they take measures or formulate courses of action relating to human rights. The European Ombudsman supervises the administration of the Union.
The protection of human rights is in first instance the concern of the individual Member States; as states parties to the different treaties, they have primary obligations under international law to protect and promote human rights. They are directly accountable for such obligations directly to international supervisory mechanisms. However, the EU agreed to act jointly on certain specific human rights issues, e.g., in combating racism and discrimination. It should be noted that besides the governments and parliaments of the Member States of the EU, NGOs and individuals play a vital role in the actual implementation process of decisions taken at the European level. Not only are NGOs and individuals effective in collecting data and flexible in raising awareness of human rights violations, they also lend the EU programmes legitimacy and research support necessary for the success of its activities.
1. The European Council
The European Council defines the general political direction and priorities of the European Union. The Council brings together the Heads of State or Government of the Member States, its President and the President of the European Commission. The High Representative of the Union for Foreign Affairs and Security Policy takes part in its work. The Council convenes, in principle, four times a year to “provide the Union with the necessary impetus for its development”, to ratify important documents and take part in negotiation of treaty changes as well as to lead in foreign policy. Furthermore, the European Council has the responsibility of nominating the President of the European Commission, and in agreement with the President of the Commission, to appoint the High Representative for Foreign Affairs and Security Policy, who also fulfils the role of Vice-President of the Commission. The High Representative is effectively the Foreign Minister of the Union. The Council is chaired by its President, a position established by the Treaty of Lisbon. The President is elected by qualified majority to a term of two and a half years and may be re-elected only once. The duties of the President include the co-coordinating of the Council, and reporting to the European Parliament after each meeting. The President also represents the EU on the world stage.
In December 2004, the European Council created a post of the Personal Representative of the Secretary-General/High Representative on Human Rights in the area of Common Foreign and Security Policy (CFSP), as a contribution to the coherence and continuity of the EU Human Rights Policy. The Personal Representative’s task is to mainstream human rights into all aspects of the EU policy.
2. The Council of the European Union
Formerly known as the Council of Ministers, this institution consists of 27 national ministers from all the EU countries. The Council of the European Union holds legislative and executive powers and is the main decision-making body of the Union. Its Presidency rotates every six months, but every three Presidencies now co-operate on a common programme. The Council is a single body, but for reasons relating to the organisation of its work, it meets – according to the subject being discussed – in different ‘configurations’, which are attended by the Ministers from the Member States and the European Commissioners responsible for the areas concerned. Minsters represent their governments and are accountable to their national political systems. Votes are taken either by majority or unanimity with votes allocated according to population. Since the Lisbon Treaty the Council meets in ten configurations, including the General Affairs Council and the Justice and Home Affairs Council. The Foreign Affairs Council is unique in Council terms in that it is not chaired by the President of the Council, but rather the High Representative for Foreign Affairs and Security Policy. However, regardless of the Council configuration, it is the Council as a whole that adopts a decision. Council decisions are prepared by a structure of some hundreds of working parties and committees comprising delegates from the Member States. They resolve technical issues and forward the dossier to the Permanent Representatives Committee (COREPER), made up of the Member States’ ambassadors to the European Union. This Committee ensures consistency in the work and resolves technical-political questions before submitting the dossier to the Council.
The main working party responsible for dealing with human rights issues in the EU’s external relations is the thematic on Human Rights Working Group (COHOM). Generally, the Council takes decisions on a proposal from the European Commission and in association with the European Parliament, either through the special legislative procedure (e.g., in the areas of social security, foreign policy, police co-operation, and taxation) or through ordinary legislative procedure –codecision with the Parliament, with a qualified majority in the Council —(e.g., justice and home affairs). Human rights in international affairs are normally dealt with by the Foreign Affairs Council. Other Council meetings that may discuss and decide on human rights issues at the EU level include the meeting of the Council of Ministers on Employment, Social Policy, Health and Consumer Affairs.
3. The European Parliament
Since 1979 the citizens of the Member States directly choose the European Parliament (EP) through universal suffrage. With the entry into force of the Lisbon Treaty on the 1st of December 2009, membership of the Parliament was restricted to 751 members, regardless of future accessions. The Parliament convenes alternately in Luxembourg and Strasbourg. The Parliament may debate and reach conclusions independently of both the Council of Ministers and the Commission. The powers of the Parliament have gradually been increased, notably through the entry into force of the Maastricht Treaty, the Amsterdam Treaty and the Lisbon Treaty. The latter treaty increased the legislative power of the Parliament by extending the ordinary legislative procedure with the Council of Ministers to new areas of policy. The Parliament contributes actively to the development of a coherent EU policy in the field of human rights. It has moreover an important role to play in treaty-making processes with third countries because of the need for its assent to most international agreements. It undertakes human rights missions to countries outside the EU, draws up reports on specific human rights situations as well as thematic issues, and regularly sends a delegation to sessions of the UN Human Rights Council. In addition, the Parliament adopts resolutions, issues declarations and submits questions to the Council and the Commission on human rights issues. The Parliament publishes an Annual Report on human rights in the world and the European Union’s human rights policy. Each year it awards an individual or organisation the Sakharov prize for freedom of thought. The Parliament has a number of Committees dealing with human rights issues. For human rights issues within the Union several Committees are responsible, notably the Committee on Public Freedoms and Internal Affairs; the Committee on Juridical Affairs and Citizens’ Rights; and the Committee on Women’s Rights. A Subcommittee on Human Rights is established under the Committee on Foreign Affairs.
FILING PETITIONS WITH THE EUROPEAN PARLIAMENT
Any citizen of the European Union, or resident in a Member State, may, individually or in association with others, submit a petition to the European Parliament on a subject which comes within the European Union’s fields of activity and which affects them directly. Any company, organisation or association with its headquarters in the European Union may also exercise this right of petition, which is guaranteed by the Treaty.
A petition may take the form of a complaint or a request and may relate to issues of public or private interest. The petition may present an individual request, a complaint or observation concerning the application of EU law or an appeal to the European Parliament to adopt a position on a specific matter.
Such petitions give the Parliament the opportunity of calling attention to any infringement of a European citizen’s rights by a Member State, local authorities or other institution.
4. The European Commission
The Commission is often regarded as the Union’s executive body. The Commission is the guardian of the EC/EU Treaties and the negotiator, upon mandate of the Council, of external agreements. Its members, although appointed by the Member States, carry out their tasks independently from the Member States, as it is their duty to represent and promote the Union’s interests. The Commission participates actively in international conferences and in the work of international organisations, thus contributing, for instance, to the promotion of the universal principles of human rights. It does so, for instance, also through the integration of human rights in economic and trade relationships, and through the integration of human rights in development co-operation relationships. The Commission also represents the EU externally, for example in conducting dialogue and participating in démarches on human rights issues to third countries, and it manages the support for the many human rights projects specifically aimed at the promotion of human rights or at relief for victims of human rights violations in third countries. A major part of such initiatives form part of the European Initiative for Human Rights, discussed below.
5. The Court of Justice of the European Union
The Court of Justice of the European Union supervises the compliance by the Member States with the EC/EU Treaties. It is seated in Luxembourg, and consists of three sub-courts: the European Court of Justice; the General Court and the Civil Service Tribunal. It consists of up to 27 independent judges appointed by the Member States for a term of six years.
EU Member States and institutions as well as individuals can bring a matter pertaining to European law before the Court. Moreover, national courts may refer questions on the interpretation of European law to the European Court of Justice. The so-called preliminary rulings given by the Court in these cases are binding on the parties to the dispute. Community law is directly applicable in all Member States. The Court ensures that Community law is interpreted and applied equally throughout the EU. The rulings given by the Court are binding and have confirmed that the obligation to respect fundamental rights applies both to EU institutions and to Member States in the area of Community law, thereby ensuring that human rights are fully taken into account in the administration of justice.
The Court has become a powerful institution as Union law overrides national law. For instance, in 2001 it ruled that parts of the German Constitution were illegal according to the treaties and had to be amended. This related to the ban on women participating in military combat. The Court has consistently held that fundamental rights form an integral part of the Community legal order, thereby ensuring that human rights are fully taken into account in the administration of justice. In its case-law, the Court has elaborated upon the role of human rights in the judicial order of the community. It ruled already in 1969 - in the case Erich Stauder v. Stad Ulm/Sozialambt - that measures that are incompatible with fundamental rights cannot be taken. This judgement has subsequently been elaborated on, e.g., in J. Nold, Kohlen- und Baustoffgrosshandlung v. the European Commission, Hoechst AG v. the European Commission and Orkem v. the European Commission and ERT.
6. The European Ombudsman
The main task of the European Ombudsman is the supervision of the administration of the European Union and its various organs and institutions. The Ombudsman investigates maladministration in the activities of the institutions and bodies of the European Community. Examples include administrative irregularities, unfairness, discrimination, abuse of power and unnecessary delay. The Ombudsman acts mainly on the basis of complaints from citizens, but may undertake investigations also on his or her own initiative. The human rights complaints which the Ombudsman receives often focus on questions concerning the right to freedom of expression and non-discrimination.
7. The European External Action Service
The European External Action Service was set up by the Lisbon Treaty in order to help the High Representative for Foreign Affairs and Security Policy to fulfill his or her mandate. It functions entail developing and coordinating EU foreign policy, coherently and effectively projecting European values and interests worldwide. The Service was conceived to act as the foreign affairs ministry and diplomatic corps of the European Union in relation to common foreign and security policy. It will be formed from a merger of the external relations departments of the Council of the European Union and the European Commission, although these institutions shall remain competent in foreign relation outside the remit of CFSP. The Service was deemed necessary in order both to avoid the duplication of effort and to ensure the consistency of the Unions external actions.
8. The Fundamental Rights Agency
The European Union Agency for Fundamental Rights (FRA) was established in 2007, overtaking and extending the mandate of the European Union’s Monitoring Centre on Racism and Xenophobia (EUMC). The mandate of the agency permits it to collect data and information on fundamental rights for the purposes of analysis. It provides advice to the EU institutions and to Member States, and the institutions of the EU can seek the agency’s opinion on the conformity of its laws with fundamental rights standards. Furthermore, the agency publishes annual and thematic reports. A scientific committee made up of independent experts is involved in the preparation of most of the agency’s documents. Thus far the thematic reports have covered a wide range of topics including the situation of Roma people and LGBT people in Europe.
B. Human rights within the European Union
1. The Legal Context
Although the original EEC Treaty did not contain any human rights clauses, gradually human rights standards have been elaborated upon in later treaties and over the years human rights have become the cornerstone of the European Union.
The Lisbon Treaty established the protection of human rights as one of the guiding principles of the Union’s foreign policy efforts. (Article 21(1))
The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.
With the entry into force of the Treaty of Lisbon, the Charter of Fundamental Rights of the European Union was incorporated into European primary law (Article 6(1) of the Consolidated Treaty). The Charter is legally binding (except for those Member States with an opt-out for this provision). The Charter sets out a range of rights for European citizens. The rights are in six sections: dignity, freedoms, equality, solidarity, citizens’ rights and justice, and are based on material from various sources, such as the fundamental rights and freedoms recognised by the ECHR, common constitutional traditions and other international instruments. The Charter is intended to ensure that Union law does not contradict the ECHR, to which the EU as a whole has acceded under the Treaty of Lisbon.
2. Adherence to International Treaties
One of the starting points for compliance with human rights is adherence to international treaties. Until recently only states could become parties to major global or regional treaties but it had long been a subject of debate as to whether the European Union should accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Accession would allow individuals to challenge laws and Directives before the European Court of Human Rights. In 1979, the European Commission recommended that the European Community accede to the ECHR, in order for the European institutions to be subjected to control under the Convention. In 1994, the Council of Ministers decided to request the Court of Justice to report on whether accession of the EC to the ECHR was compatible with the Maastricht Treaty. The Court decided as follows:
Respect for Human Rights is therefore a condition of the lawfulness of Community acts. Accession to the Convention would, however, entail a substantial change in the present community system for the protection of human rights in that it would entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order. (Report 2/94, 28 March 1996).
However, in recent years the situation has changed dramatically and on 13 May 2004 the Committee of Ministers of the Council of Europe adopted Protocol No. 14 to the European Convention which in Article 17 amends Article 59 of the Convention to insert a new paragraph 2: ‘The European Union may accede to this Convention.’ In turn, Article 6 of the Treaty of Lisbon stipulates that ‘The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms’. Furthermore, on 30 March 2007 the European Union was one of the first signatories to the Convention on the Rights of Persons with Disabilities. This development was very welcome from a human rights perspective as it set an important precedent in showing how international organisations may be bound by human rights norms.
As regards other international human rights treaties, all 27 Member States are parties to six of the eight major UN human rights Conventions (ICCPR, ICESC, CEDAW, CAT, CERD and CRC), no EU country is party to the CMW and several have yet to ratify the CRPD. All states are parties to the ECHR, the ESC and the ECPT.
3. Issues of Concern within the European Union
In the last decade, the EU has substantially increased its focus on certain themes in its promotion of human rights. While the abolition of the death penalty and the prevention of torture were the centre of attention in the 1980s, the focus has shifted to some extent to the situation in individual countries. Recent years have seen a substantial drive to deepen and broaden the EU’s stance on a number of themes and issues. The EU Annual Report on Human Rights for 2008 addresses some 20 themes of particular importance: 1) the death penalty, 2) torture and other cruel, inhuman and degrading treatment or punishment, 3) rights of the child, 4) children and armed conflict, 5) human rights defenders, 6) women’s rights and gender equality, 7) trafficking in human beings, 8) the ICC and the fight against impunity, 9) human rights and terrorism, 10) human rights and business, 11) democracy and elections, 12) economic, social and cultural rights, 13) the right to development, 14) freedom of religion or belief, 15) intercultural dialogue, 16) asylum, migration, refugees and displaced persons, 17) racism, xenophobia, non-discrimination and respect for diversity, 18) rights of persons belonging to minorities, 19) persons with disabilities and 20) indigenous issues.
In this context, the Community has taken joint action in implementation activities, including funding for specific information and assistance programmes, and the relevant legislation plays a significant role in the internal order of the Union. Six issues and examples of institutional measures are discussed below.
Death penalty
The EU is opposed to the death penalty in all circumstances. It considers that abolition of the death penalty contributes to the enhancement of human dignity and the progressive development of human rights. This position is rooted in respect for the inherent dignity of all human beings and the inviolability of the human person. Therefore, the Union undertakes systematic action in regard to abolition in its relations with third countries. The guidelines on EU policy towards third countries on the death penalty (adopted in 1998 and revised in 2008) provide the basis for action of the Union. These guidelines provide criteria for démarches and outline minimum standards to be applied in countries retaining the death penalty. The EU also presses, where relevant, for moratoria to be introduced as a first step towards the abolition of the death penalty. The guidelines were revised in 2008 in order to take into account the developments that had taken place in the ten years since they were first drafted. Under the guidelines, the EU will make representations: a) in individual cases where the use of the death penalty falls below UN minimum standards (such as executing pregnant women or new mothers, mentally ill persons or those aged under 18 when the crime was committed); and b) in situations where a government’s policy on the death penalty is in flux (for example when it is considering lifting a moratorium, or de facto moratorium, on the use of the death penalty or where the death penalty is to be reintroduced through legislation).
Non-discrimination, racism and xenophobia
The issue of racism and xenophobia is of major concern in the European Union. Globalisation, the increased movement of people, the influx of foreigners and perceived problems regarding minorities has led many Member States to adopt increasingly discriminatory policies as regards immigration. To counter inequitable trends the Union has adopted several measures. Article 21 Charter of Nice includes a broad anti-discrimination clause.
Following the adoption of the Amsterdam Treaty which provided the European Community with new powers to tackle discrimination, a set of measures have been put into place to combat discrimination.
The Racial Equality Directive (2000/43/EC) contains definitions of direct and indirect discrimination; it prohibits racial and ethnic discrimination in the fields of employment, education, social security and healthcare and access to goods and services and housing; it prohibits harassment and victimisation; it provides for a judicial or administrative procedure where victims of discrimination may complain; sets out appropriate penalties for those who discriminate; places the burden of proof on the respondent in civil and administrative cases. The Directive also provides for the establishment in each Member State of an organisation to promote equal treatment (inter alia, through the elaboration of independent reports and recommendations) and provides independent assistance to victims of racial discrimination. It further recognises that implementation measures should promote equality between women and men, as women are often victims of discrimination on many levels.
The Employment Equality Directive (2000/78/EC) implements the principle of equal treatment in the areas of employment and training irrespective of religion or belief, disability, age and sexual orientation and a number of directives to combat discrimination gender discrimination have been adopted, e.g., Directive 2006/54/EC and Directive 2004/113/EC which stipulate the equal treatment of men and women in matters of employment and the access to and supply of goods and services, respectively. In addition, the Commission has presented a proposal for a new equality directive implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age and sexual orientation — outside employment.
The EU’s equality legislation has been backed up by several Community action programmes to combat discrimination, which aimed to improve the understanding of issues related to discrimination, develop the capacity to tackle discrimination effectively and promote the values underlying the fight against discrimination in the EU.
Torture
In line with the EU Guidelines on Torture adopted by the Council in April 2001 and updated in 2008, the EU sustains its leadership role and its global action to combat torture and other forms of ill-treatment with initiatives in international fora, bilateral démarches to third countries and substantial support for projects by civil society organisations in the field. One element of the Union’s actions against torture was the large-scale effort to press for the adoption of the Optional Protocol to the UN Convention Against Torture, adopted by the UNGA in 2002. Other actions include joint statements and co-sponsoring of resolutions against torture. Furthermore, financial support The Role of the European Union is provided; for the period 2007 to 2010, EUR 11 million per year has been allocated to support civil society projects world-wide in this field under a dedicated biennial EIDHR (European Instrument for Democracy and Human Rights) call for proposals. The EIDHR thus represents a leading source of funding for rehabilitation of torture victims and torture prevention world-wide. The themes selected for support are designed to reinforce EU policy: for example, awareness-raising on OPCAT, investigation into the supply of torture technology and support for the rehabilitation of torture victims.
Terrorism
In the aftermath of the terrorist attacks of 11 September 2001, the European Council, at an extraordinary meeting on 21 September 2001, put terrorism at the top of its agenda and approved the ‘Action Plan to combat terrorism’. For the first time, the EU developed a co-ordinated, coherent and cross-cutting approach in all its policies and measures to fight terrorism. The EU subsequently approved a Framework Decision on combating terrorism (2002/475/JHA), a European Union Common List of Terrorists, as well as a Framework Decision on the European arrest warrant and the surrender procedures between Member States (2002/584/ JHA). Following the terrorist attacks in Madrid and London, anti-terror efforts were redoubled. The European Counter-Terrorism Strategy was launched in November 2005. The Strategy places the onus of prevention upon Member States with the EU acting as a facilitator enabling co-operation and the development of a collective capability. The means of combating terrorism are divided into four pillars; to prevent, to protect, to pursue and to respond. The European Council has also created the position of a Counter Terrorism Co-ordinator who shall guide the Council’s strategy in combating terrorism and, with due regard to the responsibilities of the Commission, maintain an overview of all the instruments at the Union’s disposal with a view to regular reporting to the Council and effective follow-up of Council decisions.
Respect for human rights and fundamental freedoms in the adoption and implementation of anti-terrorist policies and measures is a basic principle, where no decision of the European Union may have the effect of modifying the obligation to respect fundamental rights and legal principles.
Democracy and elections
Support for free elections is a key component of the overall EU strategy to support democratisation in third countries. The EU considers free expression of the political will of the people, by a secret and equal vote through a universal, fair, transparent and participatory election process, a cornerstone of an inclusive and sustainable democracy. Election assistance takes various forms, including the provision of material and financial support to national election management bodies. The EU has supported electoral assistance projects in over 60 countries, including in post-conflict contexts such as in Chad, Sierra Leone and Haiti.
Asylum and migration
The large difference in asylum procedures between the Member States and the increasing number of asylum seekers and migrants has called for harmonisation of national legislation on asylum and migration issues. While the states must still come to an agreement on a number of key issues in this highly sensitive area, some progress has been made in, e.g., the agreement on the Council Directive laying down minimum standards for the reception of asylum seekers (2003/9/ EC), Council Regulation (EC 343/2003) establishing the criteria and mechanisms for determining which Member State is responsible for examining an asylum application lodged in one of the Member States by a Part VI. Human Rights Actors third-country national and EC Directive on the right of third county nationals established in the EU to family reunification (2003/86/EC). These documents demonstrate the growing trend towards harmonised asylum policies in the EU. Unfortunately, some Member States have still not implemented the directives fully and some provisions have been criticised for being overly restrictive. The European Parliament took the view that the provisions of the Family Reunification Directive were contrary to fundamental rights, in particular the right to respect for family life and the right to non-discrimination, and it therefore brought an action for annulment before the Court of Justice (case C-540/03). In 2006 the Court issued its judgement where it held that the directive cannot be regarded as running counter to the fundamental right to respect for family life, to the obligation to have regard to the best interests of children or to the principle of non-discrimination on grounds of age, either in itself or in that it expressly or impliedly authorises the Member States to act in such a way. The UNHCR has voiced significant concerns regarding the EU asylum system’s outcomes for persons seeking international protection in the EU and other participating states. These concerns include the system’s impact in many cases on the legal rights and personal welfare of asylum-seekers, including their rights to a fair claim examination and, where recognised, to effective protection, as well as the uneven distribution of asylum claims among Member States.
C. The European Union and international human rights
1. Common Foreign and Security Policy
In the framework of the Common Foreign and Security Policy (CFSP), the EU policy has gradually developed a number of principles, which include the following:
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The protection of human rights is the legitimate and continuous duty of the world community and of all nations individually, wherever in the world these rights are violated;
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Coherence and consistency between Community action and the CFSP as well as development policy through close co-operation and co-ordination between its competent bodies and with the Commission;
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Mainstreaming of human rights and democratisation into EU policies and actions;
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Openness of the EU’s human rights and democratisation policy through a strengthened dialogue with the European Parliament and civil society;
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Regular identification and review of priority actions in the implementation of its human rights and democratisation policy;
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Expressions of concern at violations of such rights cannot be considered interference in the domestic affairs of a state;
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The CFSP is non-selective and without bias with respect to political views or ideology;
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Civil and political rights and economic, social and cultural rights are indivisible in character and essential for the full realisation of human dignity; and
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The promotion of lasting security and peace between nations cannot be separated from the promotion of the enjoyment of human rights within nations.
The EU human rights policy aims at an international order in which international human rights standards are implemented and respected. To achieve this, the EU and its Member States stimulate the development of international standards, the strengthening of supervisory mechanisms and the actual observance of those standards. To mark the 50th anniversary of the Universal Declaration of Human Rights on 10 December 1998, the General Affairs and External Relations Council adopted a declaration in Vienna recommending the preparation of an EU annual report on human rights. The Role of the European Union
The EU Annual Report on Human Rights has been published since 1999, providing an overview of joint positions and joint actions undertaken in respect of human rights.
2. International Protection and Promotion of Human Rights
Based on the principles discussed above, the EU and its Member States engage in various activities for the international protection and promotion of human rights, both negative and positive depending on the situation at hand. The former consist of reactions to human rights violations, including joint and individual initiatives to stop and redress them — common strategies and positions and joint actions are the main instruments of the CFSP. The positive measures aim to strengthen (national) institutions and procedures for the protection of human rights, as well as the development of international norms and supervisory mechanisms.
There are also several kinds of activities that the EU and its Member States undertake by way of reaction, e.g., drawing up country reports, presenting demarches and publishing declarations.
When the EU and its Member States seek to remedy a situation where human rights are being violated, several courses of action can be considered, for instance:
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A démarche by the EU Presidency (usually confidential), the Troika, or all ambassadors of the EU Member States in the country concerned;
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A public declaration;
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Common diplomatic measures; and
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Multilateral initiatives, jointly and individually, at human rights fora.
Regular consultations and dialogues, as well as human rights clauses in trade and co-operation agreements with third countries, are other well-known mechanisms that contribute to the promotion of human rights. Such clauses stipulate that respect for fundamental human rights and democratic principles underpin the internal and external policies of the parties and constitute an ‘essential element’ of the agreement. If these third countries fail to respect human rights, trade concessions can be suspended and development co-operation programmes reduced or curtailed. The Cotonou Agreement —a trade and development co-operation pact —concluded with 79 African, Caribbean and Pacific countries (entered into force 1 April 2003) includes a ‘state of the art’ version of the ‘essential elements’ clause, with a new procedure for dealing with violations of the essential elements, inter alia, a consultation process. Similar provisions exist in the EU’s other development co-operation programmes.
The European Union has also imposed economic sanctions on countries that have violated human rights, such as Serbia, Burma (Myanmar) and Zimbabwe. Part VI. Human Rights Actors 420