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There is no shortage of criticism that has been directed at the existing approach. It has been variously described by its critics as piecemeal, ad hoc, inconsistent, incoherent, half-hearted, uncommitted, ambiguous, hypocritical, and so on. Indeed, we use some of these terms ourselves elsewhere in this article in relation to specific policies.
Nevertheless, it must be emphasized that the existing policies, in their totality, are not misconceived, misguided or wholly inadequate. In fact, it is not necessary for there to be a radical departure from the policies that are currently in place. On the contrary, in many respects existing arrangements provide an appropriate basis upon which to construct the new, much-needed policy.
Stated differently, most of the important pieces of the jigsaw puzzle that are required to make up an EU human rights policy already exist in a recognizable form. What now needs to be done is to put them in their correct places and to provide the glue that is indispensable for holding them together as part of a single picture.
As a prelude to identifying the principal elements for a new policy, it is appropriate first of all to emphasize what the policy is not about. Thus, the proposed new policy:
While some changes of this nature might be desirable at some stage in the future, none of them is essential for the implementation of the principal parts of the package that is proposed below.
The institutional dimension of the proposed human rights policy is based on the assumption that, if it is to be credible, consistent and effective, such a policy must engage all Community and Union institutions to the extent of their legislative and executive constitutional roles. By the same token, it is in the exercise of those very roles that human rights deficiencies may often occur. There would be an in-built conflict of interest if both supervisory and executory functions were assigned to the EU institutions. They are designed to be the guarantors of human rights, but they are also potential violators. This is a tension that has to be resolved.
The classic model of assigning exclusive supervisory functions to the European Court of Justice is inadequate in itself. Such a court can be an effective guarantor of human rights once cases are brought before it. But, as mentioned, the underlying theme of this analysis is the need to go beyond the model of reliance upon self-help by affected individuals who must invoke judicial protection. Thus, the supervisory function requires pro-active monitoring designed to detect areas of human rights concerns.
What is needed therefore is an institutional model which rests on the development of three already existing foundations. This model should consist, in essence, of:
1. the establishment of a clear set of
executive functions to be exercised by the Commission through the creation or
designation of a Directorate-General with responsibility for human rights, to
be headed by a separate Member of the Commission;
2. the development of a monitoring function to be
achieved through the creation of a new agency or through a substantial
expansion in the scope and power of the existing European Monitoring Centre on
Racism and Xenophobia in Vienna;39 the latter should
be transformed into a veritable Monitoring Agency, with monitoring jurisdiction
over all human rights in the field of application of Community Law; and
3. the development of a specialist human
rights unit within the functions already envisaged to be performed by the new
High Representative for the Common Foreign and Security Policy.
In addition, as part of such a changed institutional framework, all other institutions of the European Union should be called upon to enhance their human rights functions and sensibilities. In subsequent parts of the article we amplify on this basic institutional set up.
It must be emphasized, however, that to a very large extent these proposals are part of a single coherent and integrated package of measures designed to reflect a new human rights policy. The adoption of one or two elements, accompanied by neglect of the others, will not achieve the desired overall result. There is a synergy within the various institutional proposals which is especially important. To take but one example, the Parliament needs to have a Commissioner and a specialized Directorate-General as interlocutors and to benefit from a more elaborate and sophisticated common foreign and security policy (CFSP) human rights framework if it is to be able to develop its own role to the extent that we, and the Parliament itself, deem desirable.
39 See Council Regulation (EC) No. 1035/97 of 2 June 1997 establishing a European Monitoring Centre on Racism and Xenophobia, OJ L 151/1 (10 June 1997).
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