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The human rights policies of the European Union are beset by a paradox.9 On the one hand, the Union is a staunch defender of human rights in both its internal and external affairs. On the other hand, it lacks a comprehensive or coherent policy at either level and fundamental doubts persist as to whether the institutions of the Union possess adequate legal competence in relation to a wide range of human rights issues arising within the framework of Community policies.
On the positive side of the balance sheet, a strong commitment to human rights is one of the principal characteristics of the European Union. The Amsterdam Treaty proclaims that `the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law'.10 By the same token, any Member State violating human rights in a `serious and persistent' way can lose its rights under the Treaty.11 The European Court of Justice has long required the Community to respect fundamental rights and the European Council has issued several major statements emphasizing the importance of respect for human rights.12 Similarly, the Community has taken notable initiatives in a wide range of fields from gender equality to racism and xenophobia.
Thus, in diverse ways, the European Union has acknowledged that it has an important role to play in promoting respect for the human rights of its citizens and of all others resident within the Union and of ensuring that those rights are fully respected. This is so despite the fact that the Member States are, and will remain, the principal guardians of human rights within their own territories.
Equally, the Union is a powerful and uniquely representative actor on the international scene. It has the responsibility, reinforced by the capacity and financial resources, to influence significantly the human rights policies of other states as well as those of international organizations. In recognition of this responsibility it has insisted that states seeking admission to the Union must satisfy strict human rights requirements.13 Other governments wishing to enter into cooperation agreements with the Union, or to receive aid or benefit from trade preferences, must give an undertaking to respect human rights. If that undertaking is breached, serious consequences can ensue.14 It has adopted a number of declarations underlining the importance of human rights in its external relations and it has given substance to this approach by funding a wide range of development cooperation initiatives with major human rights components.15 It has sought to strengthen the capacity of civil society in many countries to protect human rights,16 has funded election monitoring and human rights monitoring, and has played an active role in support of human rights in multilateral contexts.
Nevertheless, despite the frequency of statements underlining the importance of human rights and the existence of a variety of significant individual policy initiatives, the European Union lacks a fully-fledged human rights policy. This is true both in relation to its internal policies and, albeit to a lesser extent, its external policies. Some of these shortcomings are noted below. To date, in relation to its internal human rights situation, the institutions of the Community have succeeded in cobbling together a makeshift policy which has been barely adequate, but by no means sufficient. In the future, this approach will be unsustainable, increasingly ineffective and ultimately self-defeating. In relation to its external policies, the irony is that the Union has, by virtue of its emphasis upon human rights in its relations with other states and its ringing endorsements of the universality and indivisibility of human rights, highlighted the incongruity and indefensibility of combining an active external policy stance with what in some areas comes close to an abdication of internal responsibility. At the end of the day, the Union can only achieve the leadership role to which it aspires through the example it sets to its partners and other states. Leading by example should become the leitmotif of a new European Union human rights policy.
The paradoxical nature of the Union's human rights policies may be illustrated by reference to two events of recent months. The first is the final statement adopted by the European Council at Cardiff in June 1998. Its content reveals the ease with which human rights can be rendered almost invisible in major declarations of EU policy. The phrase `human rights' is used once in the space of 97 paragraphs, spread over 16 pages. In that reference, the Council `calls on Indonesia to respect human rights' in relation to East Timor. Even the word `rights' appears only twice in the entire document. The first time it is used to laud President Nelson Mandela `as an example to champions of civil rights'. The second reference is to the `single market rights and opportunities' of `citizens and business'. 17 It is true that the virtual absence of references to human rights stands in contrast to the Council's Declaration at Luxembourg in December 1997 when it marked the beginning of the year of the 50th anniversary of the Universal Declaration of Human Rights with a 12 paragraph Annex.18 The latter, however, focused almost exclusively on the external relations dimensions of the issue. In any case, human rights should be a consistent and prominent theme in all such declarations.
The second event was a ruling by the European Court of Justice on 12 May 1998,19 which threw into doubt the legal basis for much of the funding provided by the Commission for human rights and democracy-related activities. Among the results of the Judgment are the freezing of a very considerable number of projects, the urgent need to consider draft regulations concerning the EU's external human rights policies, and increased awareness of the entirely unsatisfactory legal basis for many of the activities needed to monitor and promote respect for human rights within the Union.
The time has come, therefore, for the Union to meet its responsibilities and to develop a comprehensive, coherent, balanced and forward-looking human rights policy. This article amplifies the considerations which such a policy should take into account.
Human rights are all too often assumed to be primarily matters arising in a country's external relations rather than its internal affairs. The project from which this article has resulted began with a strong focus on the role of human rights within the external relations of the European Union. It quickly became apparent, however, that the internal and external dimensions of human rights policy can never be satisfactorily kept in separate compartments. They are, in fact, two sides of the same coin.
In the case of the Union, there are several additional reasons why a concern with external policy also necessitates a careful consideration of the internal policy dimensions. Firstly, the development and implementation of an effective external human rights policy can only be undertaken in the context of appropriate internal institutional arrangements. Secondly, in an era when universality and indivisibility are the touchstones of human rights, an external policy which is not underpinned by a comparably comprehensive and authentic internal policy can have no hope of being taken seriously. Thirdly, as the next millennium approaches, a credible human rights policy must assiduously avoid unilateralism and double standards and that can only be done by ensuring reciprocity and consistency. Finally, the reality is that a Union which is not prepared to embrace a strong human rights policy for itself is highly unlikely to develop a fully-fledged external policy and apply it with energy or consistency. As long as human rights remain a suspect preoccupation within, their status without will remain tenuous.
This analysis thus makes no fundamental distinction between the internal and external dimensions of the Union's human rights policy. To use a metaphor, it is clear that both must be cut from a single cloth. By the same token, it is perhaps prudent to acknowledge from the outset that this approach will not easily gain acceptance. There is an unfortunate, although perhaps inevitable, element of schizophrenia that afflicts the Union between its internal and external policies, or to put it differently, between its First, Second and Third Pillars. The result is that very few officials concerned with the EU will be interested in an analysis of this type as a whole. Instead, those concerned with external relations will focus solely on its implications in that domain, while their internal counterparts will adopt an equally narrow approach. Meaningful action will thus require that the governments of Member States see beyond the narrow and compartmentalized concerns of different bureaucratic and political actors and embrace a vision which recognizes the true place that human rights must come to occupy in the new Europe.
9 The Union's policies have been analysed in considerable detail elsewhere. See generally: Dauses, `The Protection of Fundamental Rights in the Community Legal Order', 10 European Law Review (1985) 398; A. Clapham, Human Rights and the European Community: A Critical Overview (1991); Lenaerts, `Fundamental Rights to be Included in a Community Catalogue', 16 European Law Review (1991) 367; Coppel and O'Neill, `The European Court of Justice: Taking Human Rights Seriously?', 12 Legal Studies (1992) 227; de Búrca, `Fundamental Human Rights and the Reach of EC Law', 13 Oxford Journal of Legal Studies (1993) 283; Twomey, `The European Union: Three Pillars without a Human Rights Foundation', in D. O'Keefe and P. Twomey (eds), Legal Issues of the Maastricht Treaty (1994) 121; Jacqué, `Communauté européenne et Convention européenne des droits de l'homme', in L.-E. Pettiti, E. Decaux and P.-H. Imbert (eds), La Convention européenne des droits de l'homme: Commentaire article par article (1995) 83; Weiler and Lockhart, `"Taking Rights Seriously" Seriously: The European Court and its Fundamental Rights Jurisprudence', 32 Common Market Law Review (1995) 51 and 579; N. Neuwahl and A. Rosas (eds), The European Union and Human Rights (1995); Cohen-Jonathan, `Conclusions générales', in P. Tavernier (ed.), Quelle Europe pour les droits de l'homme? (1996) 477; Editorial Comment: `Fundamental Rights and Common European Values', 33 Common Market Law Review (1996) 215; Toth, `The European Union and Human Rights: The Way Forward', 34 Common Market Law Review (1997) 491; Colvin and Noorlander, `Human Rights and Accountability after the Treaty of Amsterdam', [1998] European Human Rights Law Review 191; Besselink, `Entrapped by the Maximum Standard: On Fundamental Rights, Pluralism and Subsidiarity in the European Union', 35 Common Market Law Review (1998) 629. An especially valuable source of information is the regular quarterly reports on the EU and human rights by Johannes van der Klaauw, published in the Netherlands Quarterly of Human Rights.
10 Article 6, TEU. All references in this article to the TEU (Treaty on European Union) and the TEC (Treaty establishing the European Community) are to the consolidated versions which will take effect after the entry into force of the Amsterdam Treaty.
11 Article 7, TEU. See Nowak, `Human Rights `Conditionality' in Relation to Entry to, and Full Participation in, the EU', in P. Alston (ed.), The European Union and Human Rights (forthcoming).
12 See De Witte, `The Past and Future Role of the European Court of Justice in the Protection of Human Rights', in Alston, supra note 10; and Weiler and Lockhart, supra note 6.
14 Brandtner and Rosas, `Trade Preferences and Human Rights', in Alston, supra note 10.
15 Simma, Aschenbrenner, and Schulte, `Human Rights Considerations in the Development Co-operation Activities of the EC', in Alston, supra note 10.
16 Decaux, `Human Rights and Civil Society', in Alston, supra note 10.
17 Conclusions of the European Council meeting in Cardiff, June 1998, para. 93, Bulletin of the European Union, 6-1998, at 7-21.
19 Judgment C-106/96, United Kingdom v. Commission.
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