Abstract
For quite some time already, the EU is pursuing an external fundamental rights agenda, a fact that showcases the moral stature of at least some of its activities on the global scene. For a good understanding of the workings of the external human rights policy (EHRP), this chapter first provides a brief overview of the general place of fundamental rights in the European legal order (para. 5.2). Hereafter, it zooms in on the EHRP’s leading principles and main manifestations (para. 5.3). Next, some of the external fundamental rights schemes that have been initiated so far are explored in greater detail (para. 5.4). Finally, in that same paragraph, the veracity is investigated of the recurring complaint that the Union exhibits a ‘Janus-face’ in the standards for fundamental rights protection it claims to adhere to.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
In the classic sense, this concept denotes those rules that, first, guarantee individuals a ‘private’ sphere in which public authorities cannot intervene (for example, the right to freedom of expression), and second, limit the ways in which authorities can use their powers in other fields (for example, the right to a fair trial).
- 2.
Even if, at the negotiation stage, they will still have a say on which norms are to exert such influence, and afterwards, a ‘dualist’ system may still shield them from unwanted intrusions.
- 3.
This is all the more remarkable if one recalls that the initial proposals for a European Political Community and a European Defence Community, drawn up in the early 1950s, did contain ample references to fundamental rights. In fact, the Treaty establishing the European Political Community proposed to incorporate in full Section I and the First Protocol of the ECHR.
- 4.
Case 1/58, Stork v High Authority; Case 36/59, Geitling v High Authority.
- 5.
Case 26/62, NV Internationale Transportonderneming Van Gend & Loos v Nederlandse Administratie der Belastingen.
- 6.
Case 6/64, Costa v ENEL; Case 106/77, Amministrazione delle Finanze dello Stato v Simmenthal SpA.
- 7.
Case 29/69, Stauder v Stadt Ulm.
- 8.
Case 4/73, Nold Kohlen- und Baustoffgrosshandlung v Commission.
- 9.
Case 11/70, Internationale Handelsgesellschaft GmbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel.
- 10.
See e.g. Case 36/75, Roland Rutili v Minister for the Interior.
- 11.
At this point, it should be noted that the articles of the ECHR and all other international instruments referred to in the case law are not, as such, materially incorporated in EU law: the EU Courts have always made it clear that these serve as sources of inspiration. This means that individuals can never rely directly on the ECHR, ECtHR jurisprudence, or any other international fundamental rights convention before the EU Courts. This will only change once the EU officially accedes to the ECHR.
- 12.
For example, with regard to the right to strike (see Case C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet and Others), or the right to be protected against age discrimination (see Case C-144/04, Werner Mangold v Rüdiger Helm).
- 13.
A basis the ECJ earlier considered to be lacking in its Opinion 2/94, Accession of the Community to the European Convention on Human Rights.
- 14.
Charter of Fundamental Rights of the European Union, OJ [2010] C 83/389.
- 15.
Council Regulation 168/2007 establishing a European Union Agency for Fundamental Rights, OJ [2007] L 53/1.
- 16.
See e.g. Resolution of the Council and of the Member States meeting in the Council on human rights, democracy and development, Bull. EC [1991], p. 122.
- 17.
- 18.
With the Court positing that there existed neither an explicit, nor anything on which to base an implied external competence, in light of the fact that no general power was conferred to enact rules in this field.
- 19.
See e.g. Council Decision 2010/48 concerning the conclusion by the European Community of the UN Convention on the Rights of Persons with Disabilities, [2010] OJ L 23/35.
- 20.
See Art. 2 TEU.
- 21.
Dubbed the ‘Baltic clause’, as this model was first employed in agreements with Estonia, Latvia and Lithuania. Precursors can be found in trade agreements with Argentina, Chile and Uruguay, but these displayed considerably more ambiguity.
- 22.
Commonly referred to as the ‘Bulgaria clause’, after the agreement with that country, in which the refined provisions were included for the first time.
- 23.
See Arts. 9 (2), 96 and 97 of the Partnership agreement between the Members of the African, Carribean and Pacific Group of States and the European Community and its Member States signed in Cotonou on 23 June 2000, OJ [2000] L 317/3.
- 24.
Cf. von Bogdandy (2000).
- 25.
In existence from 2000 through 2006. The legal basis was provided by Regulation 975/1999 laying down the requirements for the implementation of development cooperation operations which contribute to the general objective of developing and consolidating democracy and the rule of law and to that of respecting human rights and fundamental freedoms, OJ [1999] L 120/1, and Regulation 976/1999 laying down the requirements for the implementation of Community operations, other than those of development cooperation, which, within the framework of Community cooperation policy, contribute to the general objective of developing and consolidating democracy and the rule of law and to that of respecting human rights and fundamental freedoms in third countries, OJ [1999] L 120/8.
- 26.
Regulation 1889/2006 on establishing a financing instrument for the promotion of democracy and human rights worldwide, OJ [2006] L 386/1.
- 27.
Such guidelines have so far been issued on dialogues on human rights, human rights defenders, the death penalty, torture, children and armed conflicts, and violence against women.
- 28.
For the 2007–2013 period, the EIDHR has a budget of € 1,104 million. Assistance may take the following forms: projects and programmes, grants to finance projects submitted by civil society and/or international organisations, small grants to human rights defenders, grants to support operating costs of the Office of the UN High Commissioner for Human Rights and the European Inter-University Centre for Human Rights and Democratisation, human and material resources for EU election observation missions, or public contracts.
- 29.
- 30.
- 31.
Above all Joined Cases C-402/05 P & C-415/05 P, Kadi and Al Barakaat International Foundation v Council and Commission.
- 32.
Contrast e.g. ECtHR, Tillack v Belgium, Application No. 20477/05, and Case T-193/04, Tillack v Commission.
- 33.
See Art. 51 (1) of the Charter.
- 34.
At the EEAS’s inception, focal points were established in all relevant EU delegations, tasked with monitoring and advancing the Union’s human rights policy goals.
References
Alston P, Weiler JHH (1998) An ‘ever closer union’ in need of a human rights policy: the European Union and human rights. Eur J Int Law 9:658–723
Bulterman M (2001) Human rights in the treaty relations of the European Union: real virtues or virtual reality? Antwerp, Intersentia
Fierro E (2003) The EU’s approach to human rights conditionality in practice. Martinus Nijhoff, The Hague
Kochenov D (2008) EU enlargement and the failure of conditionality: pre-accession conditionality in the fields of democracy and the rule of Law. Kluwer Law International, The Hague
von Bogdandy A (2000) The European Union as a human rights organization? Human rights and the core of the European Union. Common Market Law Rev 37:1307–1338
Williams A (2000) Enlargement and human rights conditionality: a policy of distinction? Eur Law Rev 25:471–487
Williams A (2004) EU human rights policies: a study in irony. Oxford University Press, Oxford
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2011 Springer-Verlag Berlin Heidelberg
About this chapter
Cite this chapter
de Waele, H. (2011). The External Human Rights Policy. In: Layered Global Player. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-20751-8_6
Download citation
DOI: https://doi.org/10.1007/978-3-642-20751-8_6
Published:
Publisher Name: Springer, Berlin, Heidelberg
Print ISBN: 978-3-642-20603-0
Online ISBN: 978-3-642-20751-8
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)