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The Treaty of Amsterdam marked a significant step forward when it affirmed that the Union `... shall respect fundamental rights, as guaranteed by the European Convention [on Human Rights] ... and as they result from the constitutional traditions common to the Member States, as general principles of Community law'.20 But it still remains for these solemn words to be matched by the same institutional, legislative and administrative follow-up which characterizes other areas. The failure to take adequate measures is particularly striking since the very same Treaty Article provides that `[t]he Union shall provide itself with the means necessary to attain its objectives and carry through its policies'.21
Before examining what needs to be done, it is essential to understand the broader historical context within which these commitments were made in Amsterdam. Until the Treaty of European Union, signed at Maastricht in 1992, neither fundamental rights nor the concept of European citizenship had been recognized in the various Community treaties. Nevertheless, even before Maastricht, the Union did not come to the field of human rights with a blank sheet.
Despite the absence of any reference in the original constituent Treaties to the protection of fundamental human rights, the European Court of Justice began in the late 1960s to affirm that respect for such rights was part of the legal heritage of the Community. Measures incompatible with fundamental human rights were deemed to be unacceptable and judicial protection of those rights took root in the Community legal order.22
In essence, this initial step was an example of negative integration. Whereas positive integration requires that affirmative steps be taken to expedite the achievement of specified goals, negative integration confines itself to a prohibition of violations of the principle in question. But in this respect, the starting point was no different to that which was used in relation to foundational developments in other fields of Community life. It is instructive to take as an example the centrepiece of the Community, the creation of a Single Market through the establishment of the four fundamental economic freedoms: free movement of goods, services, capital and labour. There, too, the first step was the creation of an obligation of non-violation; a ban on measures which would compromise the key principles. And again the Court of Justice played an important role in interpreting these interdictions as legally enforceable duties. It is this approach which scholars have characterized as negative integration.23
In these other fields it was not long before it became widely accepted that negative integration was insufficient to attain the agreed goals. It needed to be matched and complemented by positive integration. The result was the adoption of specific policies in the various economic fields designed to ensure that the common market place would become more than a series of legal prohibitions. It seemed self-evident that courts alone could not ensure the full attainment of the four fundamental economic freedoms. The political institutions had to play their role too. A wide range of major political initiatives followed.
In stark contrast, the move from negative to positive integration in the field of human rights has been far more problematic. Already in 1977 the political institutions of the Community jointly affirmed their support for the basic legal principle of non-violation contained in the jurisprudence of the Court of Justice.24 But in retrospect, it is now clear that what should have been no more than an initial political step has become a powerful presumption that Community political activity in the field of human rights should be largely confined to negative prohibitions rather than positive initiatives. Thus on the one hand, starting with the Single European Act of 1986, the commitment to respect for fundamental human rights has found an increasingly important place, with ever more ringing rhetoric, in the Treaties. On the other hand, however, attempts in the field of human rights to match the legal prohibition on violation with positive measures and a pro-active human rights policy have met with varying degrees of success and on some occasions with resistance and hostility, principally from various Member States.
A few examples are sufficient to illustrate this inconsistency. In 1978 the Commission proposed to begin a process which would lead to the European Community's accession to the European Convention on Human Rights.25 The proposal was important not only for its symbolism, but also for a series of practical reasons. In particular, it would have sent the message that Community measures were subject to the obligations contained in the Convention and that if Community institutions, including the Court of Justice, were not vigilant, there would be a prospect of being found to be in violation by the Court in Strasbourg. The relevant provisions of the European Convention (especially the requirement `to secure' the relevant rights, as Article 1 puts it) have long been interpreted as imposing both negative and positive obligations. But the proposal to accede was not taken up by the Council and the Member States. Attempts to revive the initiative more than a decade later also failed.26 The result is that the Treaty rhetoric affirms the normative commitment to the European Convention on Human Rights, but this commitment is not matched by political practice.
There are, nevertheless, some important instances within Community law in which the need for human rights measures to go beyond the principle of non-violation has been understood. An inventory of Community activity in the field of human rights would not be negligible. In some cases such activity derives from specific legal bases to be found in the Treaty, where human rights and the objectives of creating a common or single market happen to coincide, at least in part. Such has been the case, for example, in the area of gender discrimination, where Community policies, though far from perfect, have made important contributions and have afforded a degree of protection going well beyond that which was available at the time within the Member States. But, as important as such examples are, they also serve to highlight the fact that in other areas of social policy there has been far less affirmative human rights policy, and in some cases almost none.
In the external relations field, on the other hand, an early emphasis upon linking human rights to sanctions, such as the suspension of aid or trade preferences, has been definitively replaced by a more pro-active emphasis on promoting the development of democratic institutions, strengthening the rule of law, working through civil society, and both encouraging and funding specific human rights initiatives.
The institutional arrangements made by the Community in order to give effect to human rights policies have generally been inadequate, both in relation to internal and external matters. In the great majority of instances, the task has been left to entities with a very vague human rights mandate, reinforced by little expertise and even less interest. In a few isolated instances, however, and especially in relation to external policies, the Commission has established units with a specific mandate. They include Unit 2 of Directorate A of Directorate-General 1A, responsible for human rights and democratization; and Unit 4 of Directorate-General VIII responsible for the coordination of issues relating to the rule of law, fundamental freedoms, democratization and institutional support. These isolated units have achieved an enormous amount through the promotion of human rights activities in a wide range of areas.
But the complexity and fragmentation of the current arrangements are well illustrated by the composition of the `Standing Inter-Departmental Human Rights Co-ordination Group', which sets the general guidelines for funding from the main external relations human rights budget (under chapter B7-70). The group is convened by DG I A and includes representatives from the Secretariat General, Forward Studies Unit, Legal Service, and from Directorates-General I, I A, I B, II, V, VIII, X, XI, XII, XIII, XV, XIX, XXII, XXIV, XXIII, and ECHO.27 Even with respect to external relations alone, the regional breakdown of responsibilities among Commissioners means that five different Commissioners and their respective bureaucracies have central roles to play.
This dispersal serves to highlight the extremely unsatisfactory state of affairs in relation to responsibility for human rights matters within a very large institutional apparatus which boasts all too little specialist human rights expertise in this field. It is important that the key human rights-related Units exist within Directorates-General IA and VIII. It is disturbing, however, that institutionally there is little more than that in any concerted sense. The result is that the Community landscape of human rights policies is not without some important positive features, but it is clearly fragmented, deficient in overall coherence and lacking in institutional leadership.
The recent decision of the European Court of Justice, in which it undercut the legal basis of the financial support given by the Community to a myriad of human rights agencies and activities, is emblematic.28 It was a perfect display of the consequences of human rights activity without a coherent policy, of ad hoc action rather than the achievement of programmatic goals, of almost intentional constitutional ambiguity towards human rights, of the wilful lack of clarity as regards Community competences and jurisdiction, and the embarrassing realization that in this field the Community has had to act by stealth and questionable constitutional means. In a perverse way the decision has had a positive impact in so far as it has drawn both public and official attention to the fact that the existing approach is in crisis and in need of major reform.
The decision also underscores that the European Court of Justice, no matter how carefully it may be attuned to the need to ensure full respect of fundamental rights within the Community legal order, cannot make up for the absence of the necessary legal and policy commitments on the part of the other institutions.
Overall, human rights policy within the Community continues to rely far too heavily on the premise that equipping individuals to pursue existing Community legal remedies (both at the national level and through the possibility of references to the European Court of Justice) is, for the most part, not merely sufficient but is even an effective mechanism to guarantee that rights will not be violated within the Community legal space. We challenge this implicit understanding. Judicial protection at the instance of individuals is an important, even foundational, dimension of an effective human rights regime. But while it is necessary, it is not sufficient. Effective access to justice requires a variety of policies that would empower individuals to vindicate the judicially enforceable rights given to them.29 Ignorance, lack of resources, ineffective representation, inadequate legal standing and deficient remedies all have the capacity to render judicially enforceable rights illusory.
In our view, therefore, too much faith is placed by the Community in the power of legal prohibitions and judicial enforcement. The gap between the political rhetoric of commitment to human rights and the unwillingness to provide the Union with the means to make that rhetoric a living reality has only served to underscore the inadequacy of the excessively judicially-focused strategy of negative integration in relation to human rights. To pretend at the end of this century that human rights and dignity can be guaranteed to all those, especially the weakest in our society, who need them by simply affirming the principle of respect or even by rendering Community and Union measures which are incompatible with human rights putatively illegal if challenged before Community Courts, is a position which, at best, is overly complacent.
The inadequacy of the Union's approach to human rights is made possible in part by a knowledge and monitoring gap. The United Nations bodies responsible for supervising states' compliance with their international human rights obligations have consistently emphasized that effective monitoring systems are an indispensable foundation upon which domestic human rights policies must be constructed.30 While there is a great deal of unsystematic information which suggests lacunae and gaps in the vindication of human rights in the field of application of Community law, no observer can have a comprehensive picture in this regard because there is no agency which is empowered to provide or collect such information in a regular, ongoing and systematic fashion. As a result, the Community lacks the necessary information base upon which it should make decisions as to the identification of legislative and policy priorities and the allocation of administrative and budgetary resources in the field of human rights.
A similar vacuum exists in relation to external relations. The absence of any systematic approach to monitoring and reporting has frequently been remarked upon, whether by the Parliament, the Economic and Social Committee, non-governmental organizations involved in EU matters or outside experts. The consequence is that the various policy-making and review exercises undertaken by the different institutions within the Union are based upon inadequate, uneven and above all unreviewable data and analysis. The resulting situation is unsatisfactory from the point of view of the institutions themselves, of third countries who should know the basis upon which an EU evaluation of their performance has been based, and of civil society whose informed capacity to scrutinize is an indispensable element in a consistent, coherent, transparent and well-supported human rights policy.31 If human rights are to be given their due in the context of the Second and Third Pillars, transparent reporting, based on objective and systematic monitoring, is essential. The availability of such reports would also have the capacity to increase considerably the effectiveness of the role played by the Parliament.
What is needed are not isolated initiatives - a database here, a new report there - nor even greater transparency; rather, a fundamental rethinking of the entire Union posture in this area is required.
23 Weiler, `The Transformation of Europe', 100 Yale Law Journal (1991) 2403; and Pierson, `The Path to European Integration: A Historical Institutional Analysis', 29 Comparative Political Studies (1996) 123.
24 Joint Declaration by the European Parliament, the Council and the Commission, [1977] OJ C103/1.
25 Memorandum adopted by the Commission, 4 April 1979, Bulletin of the European Communities, Supp. 2/79.
26 Commission Communication on Community accession to the European Convention for the Protection of Human Rights and Some of its Protocols', Doc. SEC (90) 2087 final (19 Nov 1990).
27 European Parliament, Report on setting up a single co-ordinating structure within the European Commission responsible for human rights and democratization (Lenz Report), A4-393/97, at 14.
29 See text accompanying note 107 below.
30 See Alston, `The Purposes of Reporting', in United Nations, Manual on Human Rights Reporting (1997) 19; and Bloed et al (eds), Monitoring Human Rights in Europe: Comparing International Procedures and Mechanisms (1993).
31 See generally Decaux, supra note 15.
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