Human Rights in the European Union - Essay Example

Assess the extent to which the Human-Rights conditionality employed by the European Union as part of the economic development policies in external relations is an effective tool of promoting the Human-Rights agenda. Introduction In the aftermath of the Cold War, the European Union has adopted a political conditionality policy. This policy encompasses the perspective that external states can be persuaded to restructure their political systems so as to reflect human rights protections within democratic frameworks.1 In this regard, the EU’s external policies are aimed at cultivating human rights strategies via trade and development policies with the EU which typically include economic agreements and trade preferences.2 This paper examines the effectiveness of this EU external policy and it will be argued that although democratic/human rights conditionality can restructure state systems, it is flawed in that it does not seek to fully engage the general population.3 Other problems have been found to exist in an approach reflective of double standards among the various states with whom the EU seeks to restructure, gaps in the definition of human rights, ambiguous objectives and flaws with respect to the intensity of the reward system for compliance with the human rights objectives. This paper will examine specific human rights conditionality missions and the underlying problems that are associated with their ineffectiveness. The academic debate on the effectiveness of human rights conditionality policies of the EU will be the primary focus of this research. I. Definition of Democratic Conditionality Schimmelfennig, Engert and Knobel describe democratic conditionality as “the core strategy of international organizations to induce non-member states” to adheres to its principle of statehood.4 Blockmans and Lazowski takes a more simplistic approach to conditionality and describes it as a “carrot and stick mechanism”.5 The EU for example, makes provisions for the expansion of economic opportunities by virtue of integration into its markets and at the same time puts pressure on the recipient of these economic incentives in exchange for “democracy and integration in European-level political institutions.6 Rich describes political conditionality as “official development assistance”.7 Its origins can be traced back to the post-World War II Marshall Plan implemented by the US. The Marshall Plan involved approximately $US 13 billion in the reconstruction of a war torn Europe’s infrastructure, governance and policies. Each country receiving the benefit of the US’s funds were required to co-sign bilateral treaties promising to meet specific conditions for additional funding.8 According to Pridham, political conditionality is a system that: Requires specifying conditions or even pre-conditions for support, involving either promise of material aid or political opportunities, and it usually included political monitoring of domestic developments in the countries under discussion.9 It therefore follows that democratic conditionality is comprised of three essential elements. They are; conditions that require fulfillment, rewards for compliance and a process for monitoring compliance. II. The EU’s Democratic Conditionality Policies in External Relations The most significant step taken by the EU with respect to political conditionality came via the European Council in June 1993 in Copenhagen where the EU set forth the Copenhagen criteria relative to qualifications for membership. The Copenhagen criteria required that countries vying for EU membership “achieved stability of institutions” which guaranteed “respect for and protection of minorities”.10 Essentially, the Copenhagen criteria set the criteria for European enlargement the officially began with a process for preparing former Soviet states for the transition via democratic and human rights adaptations necessary for meeting EU membership requirements. The Copenhagen Criteria stated in greater detail that membership necessarily expected that the putative member achieves stable institutions “guaranteeing democracy, the Rule of Law, human rights” as well as the protection of minorities, “the existence of a functioning market economy” and the ability to be competitive within the EU.11 With respect to its external relations the EU’s Council and the Commission issued a joint declaration in November 2000, stating that although it was committed to reducing poverty, its primary “development co-operation” strategy took the position that reducing poverty was only possible where there “are functioning democracies and accountable governments.”12 The joint declaration goes further to state that the “promotion of democratic institutions, good governance and the rule of law” are among the priority qualifications for receiving EC aid.13 The EU-Mexico Global Agreement is evidence of the EU’s commitment to expand its influence globally and depart from the concept of mere Europeanization.14 The EU-Mexico Global Agreement specifically called for Mexico to promote human rights to provide sanctions for violations of human rights.15 The agreement was signed in 2000 and was the first of many signed with Latin American and Caribbean nations.16 The implementation of a trade agreement with Mexico and other Latin American countries was not a mere coincidence. The area was well known for violent uprisings, corrupt officials, an ineffective and inefficient judiciary and human rights violations. Moreover, Latin American economies have been stagnant, if now declining over the years.17 In expanding its global reach and influence with respect to promoting democracy, the EU concluded and renewed its Contonou mandate which is essentially an EU partnership agreement with African, Caribbean and Pacific countries (ACP-EU Partnership Agreement). The new ACP-EU Partnership Agreement was signed June 23, 2000 in Cotonou, Benin and succeeds the Lome IV bis Convention. The partnership is aimed at: Reducing and eventually eradicating poverty consistent with the objectives of sustainable development and the gradual integration of the ACP countries into the world economy.18 Essentially, the Contonou Agreement correlates development with human rights, democracy and the rule of law which form the bedrock of the partnership. Ultimately there are two conflicting views of the EU-ACP Partnership Agreement. Those in support of the Agreement maintain that promoting the respect for human rights will achieve economic, cultural and social development among the ACP nations. Those against the Agreement take the position that the “human rights considerations” are no more than a façade calculated to permit interference in the “internal affairs ACP countries.”19 The EU operates a number of aid programmes the most prominent of which is the PHARE Democracy Programme which is operated out of Brussels and is under the administration of the Human Rights Foundations located in Brussels. It purports that it is designed to: Support the activities and efforts of non-governmental bodies promoting a stable open society and good governance.20 Moreover, PHARE emphasizes the support of “political reform and democratic practice,” in areas that host weak “local advocacy bodies” as well as areas where “professional expertise is particularly lacking.”21 In general the EU states that its external development policies are aimed at reducing poverty and achieving the Millennium Development Goals (MDGs) which were promulgated by the UN Summit 2000. The MDGs encapsulates eight specific targets for development which are slated to be accomplished by the year 2015. The eight targets are: 1. Elimination of “extreme poverty and hunger”.22 2. Universal education at the primary level. 3. The promotion of gender equality and the empowerment of women. 4. The reduction of child mortality rates. 5. The improvement of pre-natal and post-natal health care. 6. Fight HIV/AIDs, tuberculosis, malaria and other like diseases. 7. Promotion of environmental protection and sustainability. 8. Global partnerships in respect of development.23 Embodied in each of these targets is a human rights agenda. The elimination of poverty and hunger requires to a great extent the protection of private property and for some provision of social insurance which is aimed at the just distribution of income. Gender equality is a well known human right standard as is the requirement for states to provide education at least up to a primary level. In this regard, the right to an education, the right to be free of diseases, a sustainable environment and the reduction of child mortality and provision of maternal care are consistent with the human right to a reasonable standard of living. International and certainly European standards of human rights have come to be associated with the individual’s welfare.24 Therefore, in order to receive or to continue to receive EU developmental aid, the recipient state is required to cooperate in each of the eight conditions. III. Assessing the EU’s Human Rights Conditionality in External Relations A. Legal Problems Pinelli identifies at least three legal setbacks for the success of the EU’s human rights conditionality programs in external relations. The areas of concern are the discipline of human rights, incompatibility with the Vienna Convention on the law of Treaties with respect to soliciting conditions in exchange of economic incentives and the “dualism of intergovernmental external relations in the political sphere” as well as EU “external relations in the economic sphere”.25 The legal difficulty arising out of human rights discipline is related to the principle enshrined in “conferred powers”.26 Under the principle of conferred powers, acts by the EU may not coincide with ad hoc authorities provided for in the Treaty establishing Rome “without encroaching areas reserved to Member States.27 The fact is, human rights are transversal and as such coincide with the principle of conferred powers. Article 60 of the Vienna Convention on the Law of Treaties provides that: A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operations in whole or in part.28 In other words, according to Article 60 of the Vienna Convention on the Law of Treaties, an agreement may only be terminated if material breach of the agreement occurs. It is highly unlikely that failure to abide by human rights conditions will rise to the level of a material breach since it is regarded as a “subordinated” condition.29 The Essential clause is the material condition referred to Article 60 of the Vienna Convention on the Law of Treaties.30 The dualism embodied in inter-state and EU competences with respect to human rights has an uneasy co-existence with a cohesive policy on human rights.31 It also has the capacity to complicate the delegation of authority among institutions in Europe. 32Additionally, the insertion of agreements within the framework for foreign and security policies as opposed to conventional cooperative agreements creates uncertainties with respect to neutrality of the policy for monitoring compliance with human rights standards.33 B. The Involuntary Nature of Democratic Conditionality: Balancing Human Rights and Economic Interests One of the more important keys to the effectiveness of human rights conditionality is that the recipient government is genuinely predisposed to make the necessary institutional reforms and to ensure that they remain in place. However, there are a number of reasons for doubting the authenticity and voluntariness of the recipient government’s willingness to make the required modifications to the rule of law. One of the hallmarks of human rights is free choice which necessarily assumes that there are other options from which to choose.34 Obviously, a human rights or politically driven condition of foreign aid or any kind of aid for countries with little or no chance of improving its economic situation will have no other viable option but to accept the condition in order to obtain the economic concession. There is some legitimate concern that the sanctioned approach to political conditionality under the auspices of “trade and aid” could be counterproductive in the case of countries that the EU has no economic interest in.35 In this regard, the human rights strategies are poorly defined and poorly monitored or revised.36 In the case of putative members to the EU, the EU takes a more active interest in setting human rights and democratic strategies and follows up with a far more rigorous monitoring and supervision regime.37 Additionally, there are a number of specific pressures bearing down on the recipient of the economic concession. To start with, the targeted state always has an ongoing interest in obtaining support from regional allies. Secondly, there is always the interest in having the opportunity to engage in trade relations with large corporations. Thirdly, there is the fear of public backlash from the international reports of human rights violations.38 Each of these pressures culminate to impact the effectiveness of the human rights condition. These conditions link human rights and by extension democracy with the open market economy to privatization and minimal government intervention in these markets. This invariably means the privatization of publically owned enterprises which are often the only source of social insurance for the masses. As Kaballo explains: These are the creation or widening of the local bourgeoisie or middle class and limiting the possibilities of rent-seeking accumulation, corruption and miss-allocation of resources including aid assistance.39 In places such as Africa, transforming the state-led economy has been the catalyst for protest against democratic restructuring. This is because it destroys the concept of the African state.40 It is therefore hardly surprising that democratic restructuring in Africa has been met with widespread protest from the African population. The bread riots in Egypt and Morocco are examples of the resistance movements in Africa.41 Leandro, Schafer and Frontini maintain that the EU’s conditionality approach to Africa has tended to be overly intrusive and shortsighted which has been met by a “lack of commitment to reform by some recipient governments” or they already suffer from weak “institutional capacity”.42 The EU will typically rely on support and goodwill when it does not have the means to apply economic pressure.43 This is obvious in the case of China where human rights abuses are well known, but China’s economy is strong enough to maintain its own political structures without having to concern itself with pressure from external sources for change. The EU is well aware that engagement and cooperation with China for common global concerns such as AIDS and the environment is the best approach to China.44 Another problem with the involuntary nature of the human rights conditions surrounding the EU’s foreign policy is the fact that the governmental changes within are orchestrated from outside. Pridham and Agh explain that: …of all the transnational concepts it is the most resonant of deliberate efforts to determine from outside the course and outcome of regime change. Conditionality is achieved by specifying conditions or even pre-conditions for support, involving either promise of material aid or political opportunities. 45 Moreover, conditionality calls for the political supervision of domestic matters in the target state. Turkey provides a good example of the flaws associated with the EU’s conditionality approach to human rights in its external relations. The involuntary nature of the cooperation coming from Turkey is manifested in a number of problematic areas. Zalewski identifies some of these problems. First, there is a lack of a “credible material commitment to Turkish accession” (to the EU).46 There is no concise definition of what is embodied in the concept of human rights particularly as it relates to the EU’s “enlargement policy”.47 There is a risk of a double standards accusation, there are also “mixed signals”, and there is also the threat of the “politicization of human rights criteria”.48 Even the EU has acknowledged the fact that Turkey has met the Copenhagen Criteria, but concerns about the role of the military in the government, the Kurdish crisis, the war in neighbouring Iraq and the 2007 general elections appear to be far more significant to the EU than Turkey’s democratic reforms.49 The nature of the conditionality relationship is such that it has not been able to realize maximum results and simultaneously it has generated a lot of ill will and resentment from among Turks who have grown increasingly suspicious.50 It is obvious from the problems identified that the lack of commitment and the lack of trust emanates from the involuntary nature of the conditional human rights agreement. Any involuntary agreement lacks credibility and prone to develop problems in the long run if not immediately. C. The General Disconnect From the General Population Democracy as proponent of human rights envisages deliberate and self-conscious institutional reform.51 It necessarily involves the conscious participation of the masses who have input and a voice in these reforms.52 Any democratic reform will not be successful without the support of the masses. For instance in the Belarus project, the EU has continued to face voids which can be connected to the will of the people. The EU has no connection with society and underestimates the connection between the current regime and the masses. In a poll conducted by the New Democracy Barometer Poll conducted in Belarus the previous regime secured far better ratings and the wish to return to the communist regime is higher than in other target states.53 D. The EU’s Inconsistent Approach to Target States: Double Standards Researchers have expressed the view that the EU’s conditionality approach to external relations has been largely inconsistent and as such can have significant flaws with respect to its effectiveness as a human rights instrument. Some researchers and political scientists have noted that the EU treats target states differently regardless of the similarities in their human rights abuses.54 Although the EU pays lip service to the significance of human rights, the democratic conditionality appears quite often to be driven by “geopolitical, economic or security interests”.55 Some relatively unimportant nations such as the poor countries in Africa appear to have little if any importance to the EU and if the same is true of at least one member state, the relatively unimportant state is the subject of highly “negative conditionality”.56 In yet other circumstances, a member state may veto “suspension or termination” on the basis that it could injure that member state’s economic interests if the country is perceived as a strategic or political interest or they may simply veto the suspension if they are of the opinion that suspension would not make a difference with respect to compliance with the human rights conditions.57 The EU’s interest in obtaining cooperation with respect to energy and the global war against terror is often the basis for taking a more lenient approach to democratic reforms in Central Asian countries. Schimmelfennig maintains that: Suspensions have mainly hit participants in the Lome Convention and countries that were economically relatively unimportant to the EU; on the other hand, the EU spared Asian and economically more relevant countries.58 It has also been observed that the EU’s approach to human rights conditionality does not seem to correspond with a “democratic criteria.”59 The fact is, the system of punishment and reward appears to be far from coherent and is meted out in purely ad hoc manner. Other researchers have observed a system of human rights conditionality based primarily on the level of influence of member states. For instance, former French and British colonies appear to have gained less sanctions than former colonies of other EU contracting states. Inconsistency in approaches to the human rights conditionality breeds mistrust by those who receive less favorable treatment thereby increasing the risk of non-compliance. In this regard, the introduction and sustaining of human rights in these least favoured nations are doomed for failure. When inconsistency exist in cases where the target is not a candidate for EU membership, the risk of non-compliance increases. This is because, the target state has no real incentive to change its regime.60 More importantly however, the inconsistency compromises the EU’s credibility with respect to its human rights rhetoric. As a consequence, the EU’s influence is entirely undermined. The EU’s inconsistent approach human rights conditionality undermines the effectiveness of promoting human rights because those countries that are the recipient of inconsistent or less favourable treatment are aware of the “inherent injustice of such behavior and often exploit it to their own interests”.61 Even so, Balducci cautions that the reality on the ground in some states differ however, and human rights abuses may not be the same and would therefore require vastly different resolutions. It therefore follows that the reality on the ground may imply that some policy positions may be effective in one state and ineffective elsewhere.62 Regardless, inconsistencies in the way that the EU uses its human rights conditionality in external relations have been quite obvious. For instance in the Balkans, human rights were viewed as entirely significant for the reconstruction and stabilization missions in the region. However, in the Mediterranean, the EU left the regulation of human rights to field assistance. The EU has also been observed to have rendered minimal enforcement strategies with countries such as Russia and Nigeria, countries which are regarded as either economically or strategically important to the EU.63 In trying to understand these inconsistent approaches it is important to fully assess the situation. The EU’s drive to promote human rights is conceivably influenced by a number of complex situations and circumstances. There is the “coexistence of the interests and policy preferences of member states, EU institutions and transnational groups.”64 It is therefore impossible to ignore the social relations and interplay among the various contracting states within the EU. In this regard, the position of one member state may be altered by the policies of another state. E. Instrumentality of EU’s Human Rights Conditionality The instrumentality of human rights conditionality appears to targeted countries to be a façade for some other concealed agenda. The neo-liberalist take the position that the human rights conditionality is a façade merely intended to increase the propensity of the open market economy by virtue of encouraging “non-economic reforms”.65 Similarly, the human rights instrumentality can be used as reward or punishment tool whether or not the targeted state complies with or does not comply with human rights standards set by the EU.66 Another view is that the human rights conditionality is an instrument, strategy and norm that is perceived as significant for facilitating security. This is intricately tied to the post Cold War perception that security is tied to human rights and is therefore important for promoting “international stability.”67This rationale may also account for the EU’s inconsistent approach to different target states with respect to its rewards and punishment system under the human rights conditionality system. This is evidenced by the EU’s tougher approach to human rights in the Balkans where human rights was thought to be necessary for facilitating stability. The approach in the Mediterranean has been particularly soft and this may be rationalized on the basis that the EU was determined to take account of the fact that authoritarian states are largely successful in containing terrorism and controlling migration. In Africa the approach can be seen as one aimed at preventing conflict.68 Human rights as an instrument of international security goes back to the Second World War.69 After the Second World War a number of sates turned attention to complying with universal standards of human rights. Over the course of the following thirty years the International Bill of Rights which consists of the Universal Declaration of Human Rights (1948) and two other international covenants on human rights in 1966 were implemented. The International Bill of Rights set the international standard for the respect for and protection of human rights. 70 In the latter part of the 1970s a number of countries including Norway, the Netherlands, the U.S and France began incorporating human rights into their foreign policy strategies. These human rights strategies were largely aimed at implementing reform across borders. Some of the reforms promulgated by virtue of this new approach to foreign policy was the cessation of human rights abused by totalitarian governments. Today, the approach taken by the EU to human rights conditionality is the norm and is particularly important to smaller countries that are attempting to become more active both economically and politically in the international community.71 As an instrument, human rights conditionality has as its aim one of two possible aims and objectives. They may be used for solidarity or socialization purposes. When they are used for solidarity purposes the aim is to lend aid to those who have suffered or are suffering a crisis brought on by poverty, conflict, natural disaster or some other crisis. Either way, these strategies can be accomplished by virtue of either a bilateral or multilateral treaty.72 Socialization typically means that the intervening state fully “intend to involve human rights violating governments into international regimes for human rights protection.”73Attempts are made to persuade the offending state to not only accept but to also respect human rights on a domestic level under the auspices of “social learning”.74 However, this is easier said than done. Typically the target state has conflicting concerns and interest. In many cases, countries violating human rights invoke the doctrine of territorial sovereignty and call attention to the donor state’s own domestic issues. Then there is the tension between human rights and economic goals or security principles.75 Even the EU’s human rights conditionality is the subject of conflicting perspectives. There are popular perspectives that the partnership is fueled by a political agenda and there are also popular perspective that it is entirely political in nature. The fact is, there are two sets of circumstances giving rise to these two competing perspectives. On the one hand: There is a cause-effect relationship between the crisis of the world economy in the 1970s that fostered economic change and globalization and the EU decision to develop a new Mediterranean policy. Counting on the asymmetry existing between the EU and the Med countries in economic power, the European policy-makers, with the consent of t the domestic economic establishment, decided to pursue the design of setting up European hegemony on the Med-Partners and make, as a result, Europe stronger in terms of global economic competition.76 On the other hand, there is the view that the partnership with the Med was precipitated by the state of insecurity in the region. Regardless of whether one or both of these perspective spurred the Med-partnership, one this is certain, the human rights conditionality played a significant role in the agreement. The EU clearly used human rights as an instrument, taking a neo-liberalist approach to the partnership. The express conditions of this partnership was for: liberalization, restructuring, privatizing and deregulation. The unmistakable intent was to ensure the integration of the Med into an “EU-led economic region”.77 It is also certain that security was very much a part of the initial agreement because it extended its reach to the Mediterranean Arab states in an attempt to stabilize the region.78 As Attina explains: International hegemony is a relationship established on condition that ‘clients consent to the leadership of the hegemon in exchange for some benefits.79 The effectiveness of the EU’s human rights conditionality is also called into question in this area. Increasingly members of the Mediterranean region cultivated resentment with respect to the consequences of trade liberalization. The negativity penetrated the area. Arab elites were particularly vilified and largely held responsible for the “economic and liberalism with social and democratic liberalization measures, and opening the countries to further European penetration.”80 Conclusion and Recommendations The essence of the EU’s human rights conditionality is based in the contractual arrangements contained in bilateral or multilateral treaties. However, the legitimacy of these human rights conditions are called into question based on the lack of clarity and consistency in their application to different partnering countries. The lack of clearly defined human rights conditions leaves open the question of procedural legitimacy and also calls into question its contravention of Article 60 of the Vienna Convention on the Law of Treaties 1969. The inconsistent approach to its awards and punishment methods also challenges the EU’s credibility and influence with respect to promoting human rights. Undoubtedly, those states who are aggressively held to the human rights conditions are well aware of the disparity of treatment. In recognizing that the EU treats countries differently, regardless of the rationale, compromises the ability to secure the effective promotion of human rights. Another difficulty that compromises the EU’s ability to effectively promote human rights in its approach to external relations via conditionality is the disconnect with the populations that regime restructuring is meant to benefit. In many of these countries, publically owned enterprises provide jobs for the population. Privatization typically involve restructuring with the result that a number of persons are unemployed as a result of the privatization. In many cases, the provision of government jobs is the only means of social insurance. Moreover, external influences with respect to regime change can foster public resentment and resistance to change. Many times the human rights conditionality works from the top and entirely excludes input from the ordinary citizen. Ultimately, the treaty indorsing the human rights conditions for economic aid are conducted quickly and behind closed doors. This too is inconsistent with human rights and democratic concepts. Another problem arises when the target state is not a candidate for EU membership and has no real incentive outside of integration into the world market. However, these countries can partner with China and a number of Asian states if they wish to retain their current political system. In other words, the EU is not offering these countries anything that they cannot obtain without the human rights condition attached. Obviously the EU’s human rights conditionality is not a colossal failure. This research focused only on the identifying the flaws in this specific foreign policy strategy. There have been successful human rights policy changes, but for the most part, these countries have successfully joined the EU membership. Others have been given a free pass because of their economic and political interest to the EU and some of its members. In order for these flaws to be eliminated the EU is required to modify its approach. By doing so, the human rights conditionality with respect to external relations would be a more effective tool for promoting human rights. First and foremost, the EU should ensure that its democratic clause as contained in its various bilateral and multilateral treaties are more specific, leaving no doubt at the human rights obligations it wishes to promote. Secondly, there is a need for cultivating closer relationships with the general population who stand to gain and lose the most by virtue of regime changes and restructuring. There is a need to ensure that social groups representative of the general population are involved in the negotiation of these bilateral and multilateral treaties. The idea is to ensure that the ordinary citizen is not only prepared for change, but has input with respect to how change is achieved. Finally, and more importantly, the EU needs to take a more consistent approach to its human rights conditionality. The fact that it can largely ignore human rights abuses in Asia and take a firm stand against the same abuses in Turkey for instance, speaks to bias which is entirely inconsistent with the human rights that the EU purports to promote abroad. In other words, the EU could lead by example. References Alston, P. (1999) The EU and Human Rights. Oxford University Press. Attina, F. (2003) “The Euro-Mediterrean Parternership: The Realish and Liberal Veiws”. European Foreign Affairs Review, Vol. 8 2-19. Balducci, G. 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