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:
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;
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;38 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
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.
7 Legal and Constitutional Aspects of a New Policy
The first essential element in building a new EU human rights policy is to establish that such a policy lies within the constitutional competence of the Community and that it would not violate important principles such as that of subsidiarity.
The need for a comprehensive human rights policy seems so compelling that it will be very difficult for an outside observer to understand why such a policy has not already been adopted. There are many reasons. Principal among them is the issue of competences. Yet the proposal for a significantly expanded human rights policy would be either naive or fraudulent if the Community and Union lacked the legal competences to enact it.
The Treaty did not, and still does not, even after the measures introduced in Amsterdam, list human rights among its objectives. Opposition to a human rights policy, to accession to the European Convention on Human Rights, to the drafting of a Community ‘Bill of Rights’, and to a range of other policy proposals which have failed to gain acceptance over the years can all be explained in large measure by a concern that the Community lacks any significant constitutional competence to deal with all but a very circumscribed range of human rights matters. Underlying this concern is a fear that allowing the Community to move beyond a policy of not violating human rights would lead it to encroach on areas which are outside its jurisdiction and should be reserved to the Member States. Those who hold this view would argue that the potential reach of human rights policies is almost unlimited. And it is true that human rights do directly affect all activities of public authorities and, depending on their definition, also touch upon many areas of social activities of individuals. The fear is that empowering the Community in the field of human rights would be an invitation to a wholesale destruction of the jurisdictional boundaries between the Community and its Member States. It would be ironic if a proposed new policy, whilst motivated by the desire to vindicate fully the values represented by human rights, trampled over the equally important democratic and constitutional principles of limited governance and attributed powers.
The issue of competences is of particular importance in this context, not only because of the extent to which it has underpinned the resistance to an EU human rights policy on the part of some states but perhaps more importantly because it has been the preferred excuse invoked by those who do not want such a policy for very different reasons. Those reasons range from a simplistic belief that the Union can and should confine itself to a narrow range of economic aspects of integration to a more general sense that human rights just get in the road of efforts to build a strong and wealthy new Europe. Whatever the motivation, it is essential to put the issue of competences into perspective so that the debate over the real issues can move ahead.
1 Rejecting Extreme Positions
Earlier debates about a human rights policy for the Community seemed to oscillate between two, equally untenable, poles. There were those, including in some contexts the Commission, who seemed to believe that the commitment to ensure respect for human rights gave the Community a plenary jurisdiction in this area. Certainly, many suggestions by non-governmental groups have tended to reflect such an assumption and to dismiss arguments to the contrary as being driven by anachronistic concerns to protect state sovereignty. The opposite extreme would suggest that human rights are matters which are almost by definition reserved exclusively for action by the Member States. In this vein, the Council, whilst acknowledging a certain competence in the field of international cooperation and development, has consistently held that a general Community human rights policy, especially one impinging on action by and in the Member States, was outside the legislative jurisdiction of the Community.
In fact, both of these extreme positions are wrong. Neither the Community nor the Union have a plenary human rights jurisdiction in the way that Member States have. However, it is clear that, within carefully delineated boundaries, the Community and the Union do enjoy the necessary jurisdiction to enact a comprehensive and meaningful policy.
2 Human Rights as Cross-cutting Concerns
It is instructive, by way of analogy, to consider some of the areas in which the Community has assumed exclusive competences, such as major aspects of the Common Commercial Policy, of the Common Agricultural Policy (which often implicate rights to property) or of the Single Market concerning the free movement of labour. It seems self-evident that in those areas it is only the Community which could reasonably be considered to be the custodian of human rights – in the same way that the Member States are custodians of human rights in the vast areas of state jurisdiction, like criminal law, which are largely outside Community jurisdiction.
It is true that Europe has evolved what is probably the most sophisticated system of judicial protection of human rights, involving both the domestic constitutional orders of the Member States and the European Convention system. Each of these has its unique characteristics that must be preserved and allowed to play its rightful role. But there are also aspects of European Community activity which are not subject to effective human rights control at these levels. Given the consistent expansion of Community responsibilities, it becomes all the more imperative that they be accompanied by necessary measures, at the Community level, to ensure the protection of human rights.
But human rights principles, which impinge upon such a wide and vitally important array of policies at all levels, cannot simplistically and definitively be slotted into a single pigeon hole. Instead, they must be considered to cut across all levels of national and transnational governance and regulation and each level must be enabled to play its appropriate part. This includes, on the one hand, the United Nations and the Council of Europe with their array of human rights treaties and other instruments and, on the other hand, NGOs, other groups and individuals, and of course everything that comes in between.
A useful analogy in the context of Community law is the issue of privacy and data protection. This is a classic cross-cutting issue with multiple dimensions which do not fall easily within either the exclusive competence of the Community or that of the Member States. That ambiguity, however, did not prevent the Amsterdam Treaty from providing that all Community institutions would be bound by the relevant privacy principles; nor did it stop it from setting up ‘an independent supervisory body’ to monitor compliance.40
The Community should aim to create what might be termed a ‘Common Human Rights Area’, in which interlocking and overlapping levels of protection interact synergistically with each other.