«Fostering Human Rights among European Policies Large-Scale FP7 Collaborative Project GA No. 320000 1 May 2013-30 April 2017 Report on the EU’s ...»
FRAME Deliverable No. 5.6 Union (CJEU)10 and the conclusions database on the website of the European Council.11 They comprise, among others, EU primary and secondary law, resolutions of the European Parliament, and other policy documents. The methods of analysis range from keyword searches to textual and legal analyses, depending on the type of document and the research context.
Secondary sources used for this report include published academic articles and books, working papers and policy reports. They were collected through surveys in various databases and library catalogues.
In addition a series of semi-structured interviews with key policy-makers, experts and other stakeholders was conducted, serving primarily to align the information obtained from the interviewees with practice and to complement the report with (additional) data not otherwise available from primary or secondary sources. These semi-structured interviews were conducted in person in the offices of the EU Delegation to Peru and via videoconferencing. The interview partners included representatives from the EU headquarters in Brussels, both consultants and administration offices, and representatives of the EU Delegation to Peru. All interviews were carried out under the Chatham House Rule.12 In line with this, the report does not disclose the identity or the affiliation of the speaker(s), nor that of any other participant.
C. Structure The report will firstly provide a brief theoretical background with regard to the EU’s human rights commitments in its external action as well as an analysis of the Union’s legal background for human rights cooperation with the OAS (chapter II). Secondly, the report will include a comprehensive analysis of the institutional aspects of EU-OAS relations in the area of human rights, comprising a mapping of all involved actors within the OAS and the EU framework (chapter III). Thirdly, the analysis will focus on the substantive goals and objectives of the EU with regard to the OAS and the strategy development process in the EU. A separate sub-chapter will assess the human rights implications of agreements, strategies and action plans adopted by the EU in relation to the OAS and its member states or jointly by the EU and the OAS (chapter IV). Subsequently, the spectrum of tools and methods employed by the EU in its human rights cooperation with the OAS will be highlighted, with a subchapter focusing on financing (chapter V). Two case studies will conclude the analysis, addressing the IACtHR and the IACHR, as well as the impact of the EU activities on the level of human rights protection in Peru (chapter VI). Finally, the report will provide a concluding evaluation, identifying specific and structural achievements and flaws in the EU’s human rights cooperation with the OAS (chapter VII).
II. Legal and policy framework of EU-OAS relations A. The place of human rights in EU external policy Art. 205 TFEU requires that the EU’s action on the international scene ‘shall be guided by the principles, pursue the objectives and be conducted in accordance with the general provisions laid down in Chapter 1 of Title V of the Treaty on European Union’.
Provisions included in chapter 1 discussed below regulate a general commitment of the EU in its external relations to human rights.
Art. 3(5) TEU requires that ‘in its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to […] the protection of human rights, in particular the rights of the child. […]’.
Art. 21(1) TEU stipulates that the EU should promote values on which it is based, including human
the Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, […] The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, […].
Art. 21(2)(b) TEU further develops and clarifies the EU’s obligations in order to ‘consolidate and support democracy, the rule of law, human rights and the principles of international law’. This should be achieved by defining and pursuing common policies and actions, as well as by working for a high degree of cooperation in all fields of international relations.
Art. 21(3) TEU specifies that the principles and objectives described above shall be respected and pursued in the development and implementation of the different areas (of all policies) of the EU’s external action.
Art. 21(1) TEU reiterates the commitment of the EU to human rights understood as universal and indivisible in their nature. However, the TEU does not define or impose any specific objectives to be achieved by the EU in the field of human rights’ aspects of its external action. Rather it leaves these issues to be decided by the European Council in its activity. Art. 22(1) of the TEU states that on the basis of the principles and objectives set out in Art. 21, which were briefly described above, it is the European Council which ‘shall identify the strategic interests and objectives of the Union’. The
decisions of the European Council:
on the strategic interests and objectives of the Union shall relate to the common foreign and security policy and to other areas of the external action of the Union. Such decisions may concern the relations of the Union with a specific country or region or may be thematic in approach. They shall define their duration, and the means to be made available by the Union and the Member States[…].
FRAME Deliverable No. 5.6 The provisions stated above establish principles governing the external relations of the EU. These principles include human rights. However, they neither ‘categorize’ nor define any priorities between human rights. Instead, they underline the universal and indivisible nature of human rights. The only exception may be noted with respect to the rights of the child. The thematic priorities can be reconstructed from other documents: EU Human Rights Guidelines and the EU Strategic Framework and Action Plan on Human Rights and Democracy, reviewed below.
The general commitment of the EU to human rights is reiterated in a series of thematic guidelines, commonly known as the ‘EU Human Rights Guidelines’. At the time of drafting this report, 11 such guidelines were adopted. They were adopted by the Council of the European Union, therefore they cannot be perceived as identification of the strategic interests and objectives of the EU within the ambit of Art. 22 TEU. They are not even legally binding. Despite this, they are considered to be a signal of the EU’s priorities in the field of human rights.
The guidelines contain operational parts, which are related to the EU’s external actions. In these parts, the guidelines set up specific actions that are to be undertaken with respect to the human rights which are the theme of the particular guidelines. Typically, the operational parts refer also to actions in multilateral fora, by references to actions related for example to ‘international and regional organizations’. The operational part of the EU Human Rights Guidelines on Freedom of Expression Online and Offline specifically refers to cooperation with ‘the special rapporteurs having related mandates from the AU, OAS, OSCE and OIC’. The EU Guidelines on Human Rights dialogues with third countries expressly recognise that different types of human rights dialogues exist, including ‘in particular’ also relations between the EU and Latin America.
Apart from the EU Human Rights Guidelines, the Council of the European Union adopted the EU Strategic Framework and Action Plan on Human Rights and Democracy. These two documents ‘set out the EU's vision for its global human rights policy in the years ahead and establish a detailed list of actions that the EU will implement in order to promote these goals in practice’.13 They are a ‘guiding reference’ for placing human rights within the EU’s external action.14 The EU Strategic Framework on Human Rights and Democracy (hereinafter referred to as the ‘Strategic Framework’) describes the objectives of the EU in the field of human rights. It confirms that ‘[t]he European Union is founded on a shared determination to promote peace and stability and to build a world founded on respect for human rights, democracy and the rule of law. These principles underpin all aspects of the internal and external policies of the European Union’. The Strategic Framework underlines that human rights are ‘legal norms’ and that they are ‘universally applicable’. The Strategic Framework reaffirms also the UE’s commitment to the promotion and protection of ‘all’ human rights.
It is irrelevant whether one considers a particular human right as being ‘categorized’ as civil and political right, or as ‘economic, social and cultural’ one.
With respect to the EU’s external policies, the Strategic Framework states that the ‘EU will promote human rights in all areas of its external action without exception’. It is to be done by working with bilateral partners (‘the EU will place human rights at the centre of its relations with all third countries,
including its strategic partners’), as well as by working through multilateral institutions.15 Although in the latter instance special attention is paid to the context of the United Nations, the Strategic Framework makes express reference to the cooperation between the EU and the OAS. It states that the EU ‘will work in partnership with regional and other organisations such as the African Union, ASEAN, SAARC, the Organisation of American States, the Arab League, the Organisation of Islamic Cooperation and the Pacific Islands Forum with a view to encouraging the consolidation of regional human rights mechanisms’.16 It should be noted that the Strategic Framework makes express reference to the Joint Communication of the European Commission and High Representative of the European Union for Foreign Affairs and Security Policy entitled ‘Human Rights and Democracy at the Heart of EU External Action – Towards a More Effective Approach’, hereinafter referred to as the ‘Joint Communication’).17 The Joint Communication underlines that ‘respect for human rights and fundamental freedoms is at the core of the European Union. The protection and promotion of human rights is a silver thread running through all EU action both at home and abroad’.18 The Joint Communication contains a separate heading dealing with ‘regional organisations’. Among others, it states that the EU will strengthen its cooperation on human rights and democracy with regional and intergovernmental organisations, both at the political level and at the local level, between EU Delegations and headquarters, field offices or missions of these organisations. It will use its cooperation with the Council of Europe and the OSCE more systematically. The EU should explore the possibilities of deepening cooperation with the AU, ASEAN, OAS and others, building on their consolidated or emerging regional human rights and democracy mechanisms. The EU should use its dialogues with different regions, such as ASEM, EULAC, AU/EU and ACP, to strengthen cooperation on human rights.19 The purpose of the EU Action Plan on Human Rights and Democracy (hereinafter referred to as the ‘Action Plan’) was to implement the Strategic Framework. The Action Plan ‘builds upon the existing body of EU policy on human rights and democracy in external action, notably EU guidelines, toolkits and other agreed positions and the various financial instruments, in particular the European Instrument for Democracy and Human Rights.’20 The Action Plan only covered the period until 31 December 2014. It listed 36 outcomes to be achieved, which correspond to the key messages of the Strategic Framework. The outcomes established in total Council of the European Union, ‘EU Strategic Framework and Action Plan on Human Rights and Democracy’ (n 1) 2-3.
European Commission and High Representative of the European Union for Foreign Affairs and Security Policy, ‘Joint Communication to the European Parliament and the Council: Human Rights and Democracy at the Heart of EU External Action – Towards a More Effective Approach’, COM(2011) 886 final, 12 December 2011, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0886:FIN:EN:PDF.
ibid 4. On p 10 the Joint Communication reaffirms: ‘The EU is committed to putting human rights and democracy at the centre of its external action, as a ‘silver thread’ running through all that it does’.
Council of the European Union, ‘EU Strategic Framework and Action Plan on Human Rights and Democracy’ (n 1) 5.
FRAME Deliverable No. 5.6 97 actions (each outcome establishing one or more actions), which were aimed at achieving the respective outcomes.
The EU Action Plan contains a separate point VII entitled ‘working through multilateral institutions’, which contains point 36 entitled ‘strengthened regional mechanisms for human rights’. The external action to be undertaken by the EU is described as follows: ‘Continue to engage with the Council of Europe and the OSCE; intensify dialogue with other regional organisations and support and engage with emerging regional organisations and mechanisms for the promotion of universal human rights standards’. Although the description of the action does not contain an express mention of the OAS, it also covers the relationship between the EU and the OAS.
The above shows that strengthening human rights is at heart of the EU’s external policy, being grounded in EU primary law. Within this aim, cooperation with the OAS is specifically foreseen and expected.