Seminar and Workshop on Advanced Issues in Law and Policy of the European Union, nafta and the wto

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B The EU and the European Convention on Human Rights

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.

C The Role of Economic and Social Rights in EU Policies

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.53 This is true in both the internal and external dimensions of EU policy.

1 Social Rights within the Community

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.54 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’.55 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.56

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:

  1. recognizing the right to organize;

  2. promoting accession by the Community to the European Social Charter;

  3. encouraging more consistent reference in the judgments of the European Court of Justice to the jurisprudence of the Council of Europe’s Committee of Independent Experts on the European Social Charter;

  4. encouraging all Member States to ratify ILO Convention No. 111; and

  5. improving the standing rules of the European Court, as suggested below, in relation to social rights issues.57

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.58 Very careful attention should be given to their recommendations with a view to strengthening social rights within Europe.

2 Social Rights in External Relations

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.59

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’.60 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,61 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.62 That debate sought to link respect for certain human rights with participation in trade agreements and preference schemes.63 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 Work64 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, 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:

  1. reflect consistent use of the terminology of human rights;

  2. rely as far as possible upon the internationally recognized standards for social rights, including those of the United Nations, the ILO and the Council of Europe;

  3. target specific rights-based objectives as priorities; and

  4. promote the acceptance of the human rights principles of monitoring and accountability.

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