Most of this article has been devoted to consideration of the procedural and institutional reforms or innovations which would be required in order to sustain and drive a more coherent, comprehensive and effective human rights policy on the part of the EU. The principal exception concerns certain aspects of external policy which have been considered in greater depth. In the section that follows, brief consideration is given to some of the key concerns that have arisen in the course of the broader examination of EU policy in relation to a few selected issues of concern. It must be emphasized, however, that this listing is highly selective and does not necessarily reflect the overall importance of the issues selected or the lesser importance of issues not dealt with here, such as racism and xenophobia, which are clearly of particular importance in the current climate. In relation to those and many other issues, the reader is advised to consult the specialist studies that have been drawn up and are published elsewhere.111 Moreover, even those studies are by no means comprehensive and many areas of importance remain to be dealt with in other contexts.
Currently, the limited number of rights mentioned in the Citizenship chapter (Part Two of the TEC) are not sufficient to meet the gravity of the concept of European Citizenship. We focus here on just two dimensions of that issue - freedom of movement and transparency.
Free movement is among the most visible privileges which are attached to European citizenship. The implementation of this right is still far from complete. In order to promote awareness of existing rights, the current piecemeal legislation on free movement and accompanying rights should be replaced by a common framework on the `legal status of European citizens and their families', in which differentiation between `privileged' (economically active) and `non-privileged' European citizens should be kept to a minimum. Further, the institutions of the Union should complete the measures proposed by the Commission on 1 July 1998 in response to the March 1997 `Report of the High Level Panel on Free Movement of People', chaired by Simone Veil, and continue to examine other measures in response to the more than 80 recommendations made by the Panel.
Transparency affects the quality of citizens as political beings. Without effective transparency, political responsibility, political control and the true exercise of political rights and duties are all inhibited or impaired. In order to achieve the necessary degree of transparency, the Community's enhanced freedom of information policy, reflected in Article 255 TEC, is not sufficient in itself. This aspect is developed further below.113
The Community's commitment to the principle of non-discrimination and the promotion of equality is long-standing and increasingly deep-rooted. The principle of equality is a fundamental principle of Community law, which binds not only the Community in all of its activities but also the Member States in relation to all of their activities which fall within the scope of Community law. The inclusion of Article 13 in the TEC following Amsterdam, which provides for measures `to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation', provides the occasion for sustained reflection on the most effective means by which to achieve its objectives. In the longer term, consideration should be given to the reinforcement of this provision through the addition of a general equal treatment provision in Article 3 of the TEC which would go beyond gender to cover all of the prohibited grounds of discrimination.
In the medium term, consideration should be given to the adoption of a Directive covering non-discrimination and equal treatment in relation to all of the grounds mentioned in Article 13. Such a Directive could be based on Articles 13 and 137 (working conditions) and, if necessary, Article 308 TEC.114 The aim would be to mirror the provisions of the existing Directive 76/207 on gender, but with additional provisions designed to ban harassment in the workplace along with the provision of an accompanying right to an effective remedy, and to require employers to monitor the composition of the workforce in terms of gender, race and disability to establish a workplace equal opportunities policy.
In seeking to mainstream these policies, the Commission Directorate-General with responsibility for human rights could either supplement or replace the existing inter-service groups dealing with issues such as disability and race.
In relation to sex equality, consideration should also be given to adoption by the Community of the Council of Europe's notion of `parity democracy' in relation to the fair representation of women in the workplace and to the adoption of provisions to make the equal pay principle effective, especially after the Amsterdam Treaty's amendment to Article 141.
Discrimination based on sexual orientation continues to be widespread and should be more systematically addressed through a Commission action plan and the development of a draft directive on equal treatment.115
Protection of the rights of members of minority groups should also become a more prominent focus of the Union's policies, both internally and externally.
EU policy towards persons with disabilities should reflect a human rights-based approach which aims to eliminate barriers to full participation and equal opportunities within society. In this respect, the move away from an approach which aims to eliminate discrimination towards an active approach which promotes measures to support participation and equal opportunities is especially important. This is also one of the areas in which appropriate policies must be pursued within mainstream policy-making across a very wide range of issues and not simply confined to those areas of direct and obvious concern to persons with disabilities.116
The treatment of asylum-seekers is a key component of human rights policy. Yet it has been a matter of particular political controversy within the Member States of the Union and an issue in relation to which accepted international human rights standards, which are clearly binding on the EU, appear to be most at risk.117 Recent reports have concluded that EU countries: apply widely differing interpretations in implementing common asylum measures, have adopted very different approaches to third country cases, provide inadequate safeguards to protect the obligation to ensure non-refoulement, have applied different interpretations of who constitutes a refugee, and have not always complied with common EU rules.118 Counter measures such as that to establish `cities of refuge' for persecuted writers are important, but much more needs to be done.119
Efforts to coordinate national asylum policies within the EU have been under way since 1990 and the entry into force of the Dublin Convention on determining the Member State of the European Union responsible for determining an asylum application entered into force in September 1997. Once the Amsterdam Treaty comes into effect, Article 63 TEC gives the Community five years within which to adopt a detailed set of measures on asylum. In implementing this mandate it is essential that full account be taken of the human rights provisions of the Treaty and that the exercise is not governed solely by considerations of migration management. In order to give effect to its obligations to provide protection, rather than yield to short-sighted pressures to promote exclusion, the EU should seek to ensure that the following key elements inform a communitarized asylum policy which should be implemented in national systems.
There should be a coherent and comprehensive policy, encompassing all key elements of the asylum system, to be implemented by the Member States. It should include fair procedures, based on common standards which are in full conformity with the provisions of the 1951 Geneva Convention relating to the Status of Refugees and its 1967 Protocol, including in relation to the granting of asylum in situations of persecution by non-state agents.120 The next step should be to seek to adopt common regimes designed to provide temporary protection in situations involving large-scale influxes. In addition, a burden-sharing system should be developed in response to the imbalance in numbers of asylum-seekers hosted by different Member States, and similar policies in relation to reception facilities and other matters should be promoted.
In implementing the provisions of the Dublin Convention, procedures are needed which respect the interest of the asylum-seeker, including border/admissibility procedures which allow the asylum-seeker to have his or her claim individually assessed on its merits by competent bodies (if necessary in third states). Policies should also be developed to deal with the many persons who cannot immediately be sent back to their country of origin and whose situation therefore needs to be regularized, at least temporarily. Finally, more attention needs to be given to measures to integrate refugees within the EU so that they are able to enjoy the full range of human rights accorded to others resident within the Union.
The general commitment to respect for human rights of Article 6 TEU is completed, here, by a specific reference to the Geneva Convention of 1951 and the Protocol of 1967 in Article 63(1) TEC. The institutions of the EU (and the European Court of Justice under its new powers in this field) should be encouraged to give the utmost importance to this reference. In future `minimum standards' to be adopted under Article 63(1), the Member States should be expressly instructed to respect the standards of the Refugee Convention and of the European Convention on Human Rights (including the relevant case-law of the Strasbourg Court on Articles 6 and 8 of the European Convention on Human Rights in the context of immigration).
Once admitted to the territory of the EU, third country nationals constitute an especially sensitive category of concern in human rights terms because of their particular vulnerability. Two specific measures already proposed by the Commission should be adopted. The first is the proposal for a Convention - or possibly a Directive under Article 63 TEC as revised by the Amsterdam Treaty - on rules for the admission of third country nationals. This deals not only with admission but also includes a right to seek employment in other Member States. The second is a Commission proposal for amending the Social Security Regulation 1408/71 so as to extend the benefit of its rules to third country nationals. In any event, such an extension may well be unavoidable as a result of the European Court of Human Rights judgment in the Gaygusuz case.121
More generally, beyond those two initiatives, progress should be made towards equal treatment of third country nationals and European citizens - building on the jurisprudence of the European Court of Justice as regards third country nationals covered by a Community Agreement. The fragmented nature of those rights may be an argument to extend them (a) to fields other than just conditions of employment and social security; and (b) to nationals of countries beyond those covered by specific agreements.
Issues relating to the well-being of children remain quintessentially within the competence of the Member States. Nevertheless, the increasing importance attached to the concept of children's rights and the major role attributed by the international community to the Convention on the Rights of the Child of 1989 (ratified not only by every EU Member State but by every country in the world except for Somalia and the United States), serve to underline the desirability of a greater EU sensibility in this area. Two dimensions warrant particular consideration. The first is to explore the potential to develop pilot projects and other initiatives designed to promote children's rights within the context of EU development cooperation activities. The second is for the Commission to ensure that all legislation it drafts is fully compatible with the requirements of the Convention.122
The impact of private actors on the enjoyment of human rights is growing rapidly in a global economy. Privatization, deregulation and the diminishing regulatory capacities of national governments have all contributed to enhancing the importance of corporations and other private entities in terms of human rights. However, existing arrangements for monitoring compliance with human rights standards are ill-equipped to respond to these developments. In response to growing corporate awareness and increasing consumer pressure, there has been a significant expansion in the number of voluntary codes of conduct and the like which have been adopted within different business sectors. In principle, these developments are to be welcomed, but they are insufficient. They are not necessarily based squarely on international standards, their monitoring is uneven, they are mostly overseen by the corporations themselves, and they remain entirely optional.123
The EU needs to take the lead in exploring what further options exist in this regard. In 1977 the Council adopted a Code of Conduct for businesses operating in South Africa124 and in May 1998 it adopted an EU Code of Conduct on Arms Exports.125 While there are significant differences in the scope and approach of these Codes, it is difficult to accept as the last word a recent statement by the Commission to the effect that existing Community law makes it impossible to develop a code of conduct to oblige EU-based companies operating in third countries to observe human rights norms.126 The Commission should evaluate existing voluntary codes of conduct and prepare a study on the ways in which an official EU code of conduct for corporations could be formulated, promoted and monitored. To the extent that changes in Community law will be required, these should be clearly identified.
As noted above in relation to citizenship, citizens need to be effectively informed, directly and through the media and other appropriate sources of information. Otherwise, the average citizen is unlikely to have a very clear idea of the types of information to which they might be entitled to seek access by invoking the freedom of information principle. The need for better information to raise people's awareness of their rights was highlighted in the recommendations made in the Veil Report. The permanent Dialogue with Citizens and Business, launched by the Commission, is relevant in this regard, as is the Euro-Jus system for providing informal legal advice at the national level in relation to the application of Community law. But more sustained measures are needed.
The High-Level Expert Group established by the Commission to analyse the social aspects of the information society recognized this fact in its 1997 final policy report. It called upon the EU to implement a democracy project designed to `step up the interaction between politicians and citizens and increase the latter's participation in the political debate and decision-making' and to `improve our understanding and the transparency of the democratic process in both national and EU institutions'.127 Such recommendations are all too easily misread as calling for technological fixes when in fact the principal context in which they should be pursued is one based clearly on respect for human rights.
The Directorate-General responsible for human rights could thus play a central role in developing and implementing an active horizontal policy of transparency and general democracy enhancement in the information society. This should include the creation for each Directorate-General and for the Commission as a whole of a standard of transparency to be effectuated through creative use of the Internet and of all other media forms.
Three other issues are important in this respect.128 One is the need to tackle and effectively regulate the misuse of the new information technologies, while maintaining a balance which adequately protects the right to freedom of expression and freedom to impart and receive information. This applies especially in relation to the debate over encryption. In this respect, the standards recognized 50 years ago in the Universal Declaration of Human Rights remain entirely valid, but the policies through which they can be upheld need to be constantly updated. As a key player in the field, the EU has a particular responsibility to ensure that sight is never lost of the human rights dimension of this issue. The second is the importance of seeking to make the benefits of the new technologies more accessible to individuals and human rights groups in developing countries. Existing disparities in access are dramatic and should be explicitly addressed in EU development cooperation policies. The third is the need to assist efforts to make human rights information more accessible, better structured and better managed so as to reduce problems of information overload and to seek to maximize the beneficial use which human rights groups can make of these technologies. Again, the EU, and especially the Commission, have the resources, competence and responsibility to fund and facilitate efforts in this regard.
Under the Amsterdam Treaty, the Third Pillar has been significantly restructured. Freedom of movement, immigration and related issues have been moved to the First Pillar and what remains is a focus on `police and judicial co-operation in criminal matters'. The addition of trafficking in persons, offences against children and illicit arms trafficking to existing concerns such as drugs, terrorism and organized crime gives an indication of the principal areas of concern. While the objective stated in Title VI is to `provide citizens with a high level of safety within an area of freedom, security and justice', no specific mention is made of achieving these objectives within a framework which fully respects the human rights of all, including non-citizens. Proposals to subject activities taken within this framework, including the activities of an expanded Europol (European Police Office), to review by the European Court of Justice were not accepted by Member States at Amsterdam.
This development leaves a wide area of expanding EU cooperation within which human rights guarantees are, to say the least, neither strong nor visible. The Union must as a matter of urgency explore the means by which the operation of Europol and similar semi-independent agencies (such as the Committee set up under the Customs Information Convention) can be effectively monitored with respect to their human rights performance. Access to the Court should also be assured in relation to any future schemes of police and judicial cooperation.129
111 See Alston, supra note 10.
112 See generally O'Leary, `The Relationship between Community Citizenship and the Protection of Fundamental Rights in Community Law', 32 Common Market Law Review(1995) 519; Neussl, `European Citizenship and Human Rights: An Interactive European Concept', 24 Legal Issues of European Integration (1997) 47; and M. La Torre (ed.), European Citizenship: An Institutional Challenge (1998).
113 See text accompanying note 126 below.
114 See generally Barnard, `Gender Equality in the EU: A Balance Sheet', in Alston, supra note 10.
115 See International Lesbian and Gay Association - Europe, Equality for Lesbians and Gay Men: A Relevant Issue in the Civil and Social Dialogue (1998); and the `nine point Community Action Plan', which was proposed in 1993 but has not subsequently been given much attention. Clapham and Weiler, `A Call for a Nine Point Community Action Plan to Combat Discrimination against Lesbians and Gay Men', in K. Waaldijk and A. Clapham (eds), Homosexuality: A European Community Issue (1993) 395.
116 See generally Quinn, `The Human Rights of People with Disabilities under EU Law', in Alston, supra note 10.
117 Rudge, `Challenges to Refugee Protection in the 21st Century. Reconciling State Interests with International Responsibilities: Asylum in North America and Western Europe', 10 International Journal of Refugee Law (1998) 7.
118 For example, S. Peers, Mind the Gap!: Ineffective Member State Implementation of European Union Asylum Measures, (1998).
119 See Council of Europe, La Charte des villes refuges: Un réseau contre l'intolérance, pour la protection des écrivains menacés et persécutés (1997).
120 Noll and Vedsted-Hansen, `Non-Communitarians: Refugees and Asylum Policies', in Alston, supra note 10.
121 European Court of Human Rights, Gaygusuz v. Austria, judgment of 16 September 1996, Reports of Judgements and Decisions 1996-IV.
122 See Save the Children, Towards an EU Human Rights Agenda for Children (1998)
123 Kamminga, `Holding Multinational Corporations Accountable for Human Rights Abuses: A Challenge for the European Community', in Alston, supra note 10.
124 Code of Conduct for companies from the EC with subsidiaries, branches or representation in South Africa as revised by the Ministers for Foreign Affairs of the ten countries of the European Community and Spain and Portugal, 1977, revised in 1985. Reprinted in Clapham, supra note 8, at 155. For an assessment see M. Holland, The European Community and South Africa: European Political Co-operation Under Strain (1988) 74.
125 Council of the European Union, 2097th meeting, Brussels, 25 May 1998, Press Release 8687/98 (Presse 162), at 16.
126 Letter of 14 November 1997 to the Chairman of the European Parliament's Committee on Foreign Affairs, Security and Defence Policy.
127 Building the European Information Society For Us All: Final Policy Report of the High-Level Expert Group (1997), at 61.
128 This analysis draws in particular on: P. Brophy and E. F. Halpin, `Information Technology and Human Rights: A Briefing Paper', July 1998; and E. Sottas and B. Schonveld, `The Beguiling Song of Technology: A European Vision on Technology and Human Rights', June 1998.
129 For a detailed analysis see Peers, `Human Rights in the Context of the Third Pillar', in Alston, supra note 10.
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