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An EU human rights policy can neither be conceived nor executed without full account being taken of the broader human rights context in which the Community finds itself. This includes the normative foundations upon which the international and European human rights systems have been constructed as well as the institutional framework which European states have played a key role in establishing in order to ensure that effect is given to the obligations that they and other states have assumed. But while the European Council, as noted earlier, has long appealed to all states to accede to the principal international instruments to which they are not yet party and to ensure `more stringent implementation of those instruments', the fact remains that not all EU Member States have ratified even the six core United Nations instruments.51 Two (Belgium and Ireland) have yet to ratify the Convention against Torture; another (Ireland) is not a party to the Convention on the Elimination of All Forms of Racial Discrimination; three (Belgium, France and the United Kingdom) have not ratified the Second Optional Protocol (aiming at the abolition of the death penalty) to the International Covenant on Civil and Political Rights (ICCPR); and one (the United Kingdom) has not yet accepted the individual complaints procedure under the (first) Optional Protocol to the ICCPR. The Council's call for `stringent implementation' also raises the issue of reporting and the desirability of EU states leading by example. Yet one EU state (Greece) has yet to submit its initial report under one of the UN Covenants which it ratified more than 13 years ago.52
Similarly, although the 15 Member States of the EU have all been long-term participants in, and very active proponents of, the human rights system established by the Council of Europe, there remain significant and unfortunate gaps in the ratification record of EU states.53 Thus, for example:
While the European Social Charter of 1961 has been ratified by all EU Member States, the various attempts to update it both substantively and procedurally have garnered a lukewarm reception. In particular:
The two minority rights treaties adopted by the Council of Europe have also attracted relatively little commitment from within the EU:
This incomplete record of the EU states sits rather uncomfortably beside the fact that the record of ratification of these treaties by those states which aspire to EU membership has been the subject of careful scrutiny in the context of discussions over the basis for potential membership. It would seem difficult for the Union, either as a matter of fairness or logical consistency, to be imposing requirements on applicant states to meet a level of Community acquis which has yet to be fully met by existing Member States.
It might be argued in response to this analysis that the existing level of diversity in relation to the acceptance of international and regional standards is unproblematic and simply honours the principle of subsidiarity by permitting each Member state to decide such matters for itself. But while comprehensive uniformity cannot, and should not, be required in relation to every single international human rights standard, there are powerful reasons for concluding that there must be a common core of shared standards. These should include, as a minimum, the six basic UN treaties and each of the principal Council of Europe treaties, along with their respective protocols. To the extent that this minimum level of uniformity is not achieved, the EU maintains uneven internal levels of human rights commitments and protections, jeopardizes the principles of universality and indivisibility to which it has long paid lip-service, and weakens its own credibility as a human rights proponent especially in relation to its external relations. As noted above, EU leadership is best achieved by example, rather than by urging other states to do what the EU itself has not been willing to achieve.
Indeed, it is curious to be paying homage to the 50th anniversary of the Universal Declaration of Human Rights and to be urging other states to mark the occasion by acceding to the principal international instruments, without at the same time embarking upon a major effort to bring the EU's own record up to an optimal level.
Two human rights treaties are specifically referred to in the various EU and EC treaties. They are the European Convention on Human Rights and the European Social Charter. They constitute an important part of the overall context to which we now turn.
The relationship between the Community and the European Convention on Human Rights calls for special comment in the present context. As noted above, the Treaty of Amsterdam commits the Union to `respect fundamental rights, as guaranteed by the European Convention ...'. The Convention has also acquired particular significance because of the extent to which it has been cited in the case law of the Court of Justice. The latter has also tended to interpret its provisions in line with the approach adopted by the European Court of Human Rights. The result is that the Convention has played a fundamental role not simply in providing a mechanism for protection but also in underscoring the European commitment to human rights and in emphasizing that such commitment, if taken seriously, involves important concessions which states must make to classical notions of national sovereignty. The European Convention system has become more than a legal safety net. It is now a part of the cultural self-definition of European civilization.
It is for this reason that we return to the long-standing issue of Community accession to the Convention. The reasoning of the European Court of Justice which concluded that the Treaty would have to be amended to allow Community accession is unpersuasive. For example, acceptance of the jurisdiction of the European Court of Human Rights, to which the European Court of Justice implicitly seemed to object, cannot reasonably be considered to be of such great constitutional significance as to require a Treaty amendment when the Court was prepared to endorse without demur the Community's acceptance of the dispute resolution mechanisms of the World Trade Organization. It is true, however, that the Court's Opinion has rendered these matters temporarily moot and that this is no longer a battle that can be fought on these terms.
Equally disappointing was the reluctance of Member States to take action to include the required amendment called for by the Court as part of the new Treaty of Amsterdam. It appears to be highly anomalous, indeed unacceptable, that whilst membership of the Convention system is, appropriately, a prerequisite of accession to the Union, the Union itself - or at least the Community - remains outside that system. The negative symbolism is self-evident. From a pragmatic point of view, the most troubling aspect is not the persistent, even if less than acute, lacunae in the judicial protection of human rights within the Community legal order. After all, the European Court of Justice does look to the substantive obligations of the European Convention and, as already noted, has more recently begun to pay considerable attention to the jurisprudence of the Strasbourg organs.
As the Council of Europe grows, as the European Convention on Human Rights adapts and absorbs new Member States and new legal traditions and understandings, it is regrettable that there will be no explicit Community voice within the European Convention on Human Rights. Such a voice would have enabled the sensibilities and experiences of the Community to form an integral part of the evolving jurisprudence and extra-juridical activity of the European Convention system. This, almost as much as any other reason, requires that accession to the European Convention on Human Rights remain a live objective. For that reason, the issue should be revisited at the next intergovernmental conference to amend the Treaty.
The setback as regards the European Convention on Human Rights should not prevent other similar activity. The Community could accede, without amending the Treaties, to the European Social Charter, to the Convention of the Council of Europe on Data Protection and to the Vienna Convention on Human Rights and Application of Biology and Medicine, to give but three examples.
By the same token, taking account of the spirit of subsidiarity, the Community as such does not need to be a member of all human rights treaty regimes. It could, nevertheless, still play an important role in encouraging its Member States to adhere to the various instruments noted above as well as, for example, the Council of Europe's Framework Convention for the Protection of National Minorities and to the core human rights conventions of the International Labour Organisation.
The principle of the indivisibility of human rights is a keystone of EU policy. This means that economic, social and cultural rights should be accorded as much importance as civil and political rights. This principle not only reflects the doctrine embodied in both the Universal Declaration of Human Rights and the Council of Europe's human rights regime but also the consensus on the importance of the European social model. However, the Union's rhetorical commitment has hardly been matched by its practice.54 This is true in both the internal and external dimensions of EU policy.
In terms of the Community itself, the revisions to the social rights provisions of the Amsterdam Treaty fell considerably short of the proposals made by a range of expert groups, as well as in the report of the Comité des Sages, chaired by Maria de Lourdes Pintassilgo.55 In addition, there is a strong tendency in the great majority of Community documents to focus on `social policy', designed to promote `social protection' or overcome `social exclusion', rather than to focus on `social rights'.56 A recent Commission proposal to `individualize' social rights could assist in this regard, although the human rights dimension should remain central in any such approach.57
The Treaty of Amsterdam refers in non-restrictive terms to `respect for human rights and fundamental freedoms', and the preamble to the Single European Act refers to `the fundamental rights recognized in ... the European Social Charter'. On this basis, and because the Court of Justice has long referred to `the constitutional traditions common to the Member States' in identifying applicable human rights standards, one would expect to find a range of references to economic and social rights. In fact, there have been remarkably few such references.
In relation to the Community's internal social policy, note should be taken of the importance of:
A Group of Experts on Fundamental Social Rights is expected to report by the end of 1998 as a follow-up on the Pintasilgo Report.59 Very careful attention should be given to their recommendations with a view to strengthening social rights within Europe.
In terms of the role of social rights in the Union's external relations, two examples of the inadequate attention accorded to them must suffice. The first concerns the criteria for future accession to the Union. In Agenda 2000 the Commission made reference to the compliance of applicant states with the European Social Charter and the UN Covenant on Economic, Social and Cultural Rights, although minimal attention was actually devoted to the relevant rights.60
The second, and perhaps more surprising example, concerns the EU's extensive development cooperation activities. In their landmark resolution of 28 November 1991 on human rights, democracy and development, the European Council listed a range of positive measures to be taken, but only one was potentially of direct relevance to social rights: `ensuring equal opportunities for all'. This is an imprecise and flexible concept, but it is often considered to be compatible with policies which accord a very low priority to social rights. Even if interpreted in a more positive sense, it seems to fall far short of a commitment to promoting realization of the inherent social rights of all human beings as a full component of a broader human rights policy.
A similar concern applies to the Commission's 1998 policy statement in the context of the Lomé Convention, which from a social rights perspective speaks only of the goal of `promoting pluralist civil society in a context of sustainable social and human development'.61 This broad language is not followed up by reference to any specific social rights-related policies. This is consistent with the fact that the chapter B7-70 budget line is largely confined to activities relating to civil and political rights, despite the fact that economic and social rights are of vital importance to the well-being of many of the stated priority target groups, including women, children, minorities and indigenous peoples. Funding for projects relating to economic and social rights must be sought under other budget lines.
There are two problems with this approach. One is that investment in social development has been accorded a low priority in most EU aid,62 even though increased attention is now being given to health and education. The other is that there remains a very significant difference between general social sector funding and support for economic and social rights as human rights. The time has come for the Union to end its neglect of these rights and to develop and fund a specific programme for the promotion of economic, social and cultural rights. The funding of initiatives in this field is particularly important. At present these rights are trapped in a vicious circle which leads some governments to argue that neither their conceptual foundations nor the practical measures for their implementation are as yet sufficiently developed as to warrant the adoption of specific measures. This approach only reinforces their continuing neglect and overlooks the extent to which the deeper understanding achieved in relation to civil and political rights has in part been possible precisely because of such funding.
Consistent with this approach, it is time for the Union to move beyond the old `social clause' debate by exploring new approaches.63 That debate sought to link respect for certain human rights with participation in trade agreements and preference schemes.64 The Commission has indicated that it will present a Communication in 1998 on the development of the external dimension of European social policy. The adoption by the ILO in June 1998 of the Declaration on Fundamental Principles and Rights at Work65 provides an important opportunity for concerted EU support to its development cooperation partners designed to promote the relevant rights (freedom of association and collective bargaining, elimination of forced labour, abolition of child labour, and elimination of discrimination in respect of employment and occupation). These standards have not received sufficient priority in EU cooperation activities. Moreover, three EU states have yet to ratify the core ILO human rights Convention No. 111 dealing with the latter issue. In general, the proposed Communication should also seek to elaborate a more sustained emphasis on economic and social rights than has so far been the case.
The existing human rights clauses in EU agreements provide an ideal basis upon which to pursue a more systematic approach to economic and social rights, 66 and to promote the rights which have been the prime focus of the `social clause' debate and are now reflected in the new ILO Declaration.
This Communication, along with other Community projects and policies dealing with social rights in external relations, should:
51 Those instruments are reprinted in United Nations, A Compilation of International Instruments (2 vols., 1994). The information concerning UN instruments was derived from the treaty body database of the Office of the UN High Commissioner for Human Rights, on 9 September 1998.
52 UN Doc. E/1998/22, Annex 1, at 100.
53 The information concerning Council of Europe instruments was taken from the Council of Europe's web site on 9 September 1998. The instruments referred to are reprinted in United Nations, A Compilation of International Instruments (Vol. 3, 1997).
54 See Sciarra, `From Strasbourg to Amsterdam: Prospects for the Convergence of European Social Rights Policy', in Alston, supra note 10; and Poiares, `We Still Have not Found what We Have Been Looking For: The Balance between Economic Freedom and Social Rights in the EU', in Alston, supra note 10.
56 E.g. `Social Action Programme 1998-2000, Commission Communication', Doc. Com (98) 259 of 29 April 1998.
57 `The individualisation of rights would aim to halt the practice of taking account of personal links when ensuring social protection of an individual. It would contribute to bringing social protection in line with legislation governing employment contracts, which considers workers as individuals. More generally, individualisation is in line with the general trend towards a greater autonomy of the individual'. See `Modernising and Improving Social Protection in the European Union, Communication from the Commission' (1998), http://europa.eu.int/comm/dg05/jobs/forum98/en/texts/socprot.html, sec. 2.4.
58 See text accompanying note 107 below.
59 See `Groupe d'experts en matière de droits fondamentaux', European Commission DG V, Doc. V/D/2/MJC D(97), 12 Sept. 1998.
60 Agenda 2000, Commission of the European Communities, COM(97)2000 final, 2 vols.
61 Communication from the Commission to the Council and the European Parliament entitled `Democratization, the rule of law, respect for human rights and good governance: the challenges of the partnership between the European Union and the ACP States', Doc. COM(1998) 146 final, (12 March 1998) para. 2.
62 Allocations to the social sector accounted for only 10.5% of project aid between 1990-1995. ADE final report, Evaluation of EU Aid to ACP Countries managed by the Commission, Phase I, (July 1997) 20.
63 See European Parliament, Summary Record of Presentations made at the Public Hearing on the Human Rights Clause in Trade Agreements (1996). For a critique of the motivation underlying much of the agitation for a social clause see Alston, `Labour Rights Provisions in U.S. Trade Law: "Aggressive Unilateralism"?', in L. Compa and S. Diamond (eds), Human Rights, Labor Rights, and International Trade (1996) 71. In relation to the more positive, incentive-based approach recently adopted by the EU see Brandtner and Rosas, supra note 13.
64 For example, in a 1996 Resolution the Parliament called on `the Commission to ensure, as part of the activities that it carries out as the European Union's representative at the World Trade Organization, that minimum humanitarian clauses are defined to determine the legality of trade transactions, particularly with regard to work imposed on children, prisoners or other disadvantaged sections of the population'. Resolution on human rights throughout the world in 1995-1996 and the Union's human rights policy, 12 Dec. 1996, OJ C20, 20.01.97, p. 94, para. 68.
65 ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted by the International Labour Conference at its Eighty-sixth Session, Geneva, 18 June 1998.
66 See Riedel and Will, `Human Rights Clauses in External Agreements of the European Communities', in Alston, supra note 10.
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