Some aspects relating to Human Rights under EU law

Less than a week before the much-spoken about, and for many the much-awaited, referendum, one aspect is certain: the Maltese are not in agreement as to whether our Constitutional law requires amendment or otherwise in the eventuality of Malta becoming a member of the European Union.

This point will be amplified in other forthcoming articles. Today, some general issues dealing with human rights under EU law will be considered.

The founding three European Community Treaties were signed in the 1950s. They contained no provisions concerning the protection of human rights in the conduct of Community affairs.

Political and economic integration were given precedence at the time. Human rights issues were still considered auxiliary and accessory to the concept of integration per se.

However, the European Court of Justice (ECJ), over the years, has declared that the general principles of EC law include protection for fundamental rights which are part of the common constitutional traditions of the member states and contained in international human rights treaties on which states have collaborated or which they have signed.

Currently, there is a lively debate on the significance of human rights for the EU and the appropriate scope of an EU human rights policy. Contemporaneously, the Community has begun to exercise the competence created by the Treaty of Amsterdam to enact anti-discrimination policies in fields such as race, sexual orientation, age and religion.

An EU Charter of Fundamental Rights was drafted and officially proclaimed in 2000, and the proposal to give it full legal effect by incorporating it into the Treaties has been placed on the post-Nice and post-Laeken reform agenda, to be considered at the Inter-Governmental Conference in 2004.

This development has created the re-emergence of the debate over accession by the EC to the European Convention on Human Rights. The debate had abated for a time, especially after the ECJ ruled in 1996 that the Community lacked competence under the Treaties to accede to the Convention {opinion 2/94 on the Accession of the Community to the ECHR 1996 ECR 1-1759}. This development has now been placed on the political agenda by the Laeken Declaration.

Marking the beginning of the 50th anniversary of the Universal Declaration of Human Rights meeting in Luxembourg in December 1997, the European Council appealed to all states to step up their efforts in the field of human rights by:

Acceding to international instruments to which they are not yet party; ensuring more stringent implementation of those instruments; strengthening the role of civil society in promoting and protecting human rights; promoting activities on the ground and developing technical assistance in the area of human rights and strengthening in particular training and education programmes concerning human rights.

While pursuing the objective of becoming an "ever closer union", the EU is moving towards developing a human rights policy/ies. These policies are however, strongly beset by a paradox.

On the one hand, the EU is a staunch defender of human rights in both its internal and external affairs. A strong commitment to human rights is a predominant feature of the EU.

The Amsterdam Treaty proclaims, in Article 6 (1), that "the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law."

A certain standard of democracy and human rights respect and protection is required for a state to satisfy the political criterion, a necessary prerequisite for accession.

Article 49 of the Treaty on European Union expressly states that "any European state which respects the principles set out in Article 6 (1) may apply to become a member of the Union".

To this extent, Malta, unlike Turkey for example, can boast of having achieved such standards to the satisfaction of the member states. Consequently, any member state violating human rights in a "serious and persistent" way can lose its right under the Treaty, in accordance with Article 7 of the TEU.

The EU, throughout the years, has also taken notable initiatives in various fields ranging from gender equality to racism and xenophobia.

The EU, a subject under international law, is a powerful and uniquely representative actor on the international scene. It is endowed with the responsibility, reinforced by its capacity and financial resources, to influence significantly the human rights policies of other states as well as those of international organisations.

Other governments wishing to enter into co-operation agreements with the Union, or to receive aid or benefit from trade preferences, must give an undertaking to respect human rights which, if breached, could lead to serious consequences.

It has adopted a number of declarations underlining the importance of human rights in its external relations and it has given substance to this approach by funding a wide range of development co-operation initiatives with major human rights components.

Furthermore, the EU has strengthened the capacity of civil society in many states to facilitate human rights awareness and consequent protection.

It has also funded election and human rights monitoring in various states. It is gradually experiencing the advantages of harmonisation of laws, while trying to combat international organised crime and transnational crime such as money laundering, drug trafficking, corporate fraud, insurance fraud, white collar crimes, trafficking of persons and trafficking of human organs.

On the other hand, it lacks a comprehensive or coherent policy and fundamental doubts persist on whether the institutions of the EU possess adequate legal competence in relation to a wide range of human rights issues arising within the framework of Community policies.

After all, the member states are, and will remain, the principal guardians of human rights within their own territorial jurisdiction.

To this extent, the EU is partially impotent. Experts on European affairs have in fact noted that in the final settlement adopted by the European Council at Cardiff in June 1998, human rights have been rendered unimportant.

The phrase "human rights" was used once in the space of 97 paragraphs spread over 16 pages. In that reference the Council "calls on Indonesia to respect human rights" in relation to East Timor.

Even the word "rights" appears only twice in the entire document. It is to be noted that in a ruling by the European Court of Justice (the EU's court) in the case United Kingdom vs Commission, decided on May 12, 1998, the legal basis for much of the funding provided by the Commission for human rights and democracy-oriented activities was thrown into doubt.

Within this dictum, one could highlight the freezing of a very considerable number of projects, the urgent need to consider draft regulations concerning the EU's external human rights policy, and the increased awareness of the entirely unsatisfactory legal bases for many of the activities needed to monitor and promote respect for human rights within the EU.

Noticeably, many NGOs and other international institutions have shed a bad light on the EU in relation to what they consider as omissions by the EU in the protection of human rights.

For example, on August 30, 2002, Lotte Leicht, the Brussels Director of Human Rights Watch, an important NGO, reported that "the EU must react strongly to the harsh sentencing of 10 pro-democracy activists in Syria.

"The EU does a lot of business with Syria and it has a responsibility to respond to a human rights crisis of this magnitude." Syria's state security court had found the activists guilty of attempting to change the constitution by illegal means, spreading false information, and other vaguely worded political charges and sentenced them to two to 10 years' imprisonment.

Notwithstanding all this, the potential for growth is great, especially in the light of the Charter. Indeed, other important developments will be examined at a later stage in these fortnightly articles.

However, only time will show us all whether the EU's declarations, press releases, regulations and laws are effective and capable of being enforced.

History has revealed that the greatest problem with respect for human rights is not agreement as to the rights in question, but their effective implementation.