Human rights in European politics

To what extent is politics in the "new Europe" characterised by human rights principles?

Europe has got a long tradition of human rights. Actually, the idea of "the inherent dignity and of the equal and inalienable rights of all members of the human family" (UDHR, p. 1) as laid down in the Universal Declaration of Human Rights of the United Nations (UDHR) is said to have its historic origins in ancient Greek philosophy and Roman law.^[1] The first official declarations of human rights (the English Bill of Rights 1688, the American Declaration of Independence 1776 and the subsequent Bill of Rights 1791, the French Declaration of Rights of Man and of the Citizen 1789) all stand in this tradition.^[2] Hence, it is not far-fetched when Europeans see themselves as defenders of human rights principles on the international scene. Especially the European Union's (EU) self-perception has moved in this direction. With the end of the Cold War, the right time seems to have come for politics that increasingly take into account, defend and even fight for such values: the war of the North Atlantic Treaty Organisation (NATO) with Yugoslavia is only one example of this tendency. But it is a good example, because the "humanitarian catastrophe" that was triggered by Western air-strikes also highlights the fact that the "new Europe" is far from being an examplary place where human rights are widely respected.

This essay examines the extent to which politics in the "new Europe" are actually characterised by human rights principles. Since the ideological and institutional basis has been laid in the "old Europe", I will briefly consider this period in a first chapter. The second chapter shall then explore the double challenge to politics brought about by the fall of the Berlin wall, and how this challenge has been met in the 1990s by political institutions. The EU can be seen as the main player in European politics today; I will therefore examine its external and internal human rights policies in two separate chapters (three and five). NATO's involvement in human rights affairs is intertwined with EU policies, but deserves a separate (the fourth) chapter. The problem of the universality of human rights in an Western-dominated and internationalised world will briefly be discussed in the concluding sixth chapter.

1. The rise of human rights in European politics after World War II

After the end of the Second World War, human rights issues became more central on the international political agenda. In 1945-6, the International Military Tribunal at Nuremberg tried German high officials for "crimes against peace", "war crimes", and "crimes against humanity", which was unprecedented in the history of law.^[3] At the same time, the international community increasingly perceived the need to lay down certain principles that should be a guide-line for both states and individuals how to respect human dignity in law and practice, and on 10 December 1948 the UDHR was adopted by the United Nations (UN). Despite its non-binding character, the document had a deep impact on politics all over the world by drawing the attention to the idea of human rights as such.

In Europe, the UDHR fell on especially fertile ground. Earlier the same year, the so-called "Congress of Europe" with delegates from sixteen countries in its "Message to Europeans" had already called for "a Charter of Human Rights guaranteeing liberty of thought, assembly and expression as well as the right to form political opposition", and "a Court of Justice with adequate sanctions for the implementation of this Charter" (quoted in Fletcher 1980, p. 141). The latter "desire" of the delegates in The Hague clearly went beyond the scope of the UDHR. But as the Universal Declaration provided an internationally accepted basis, the idea of enforcement mechanisms could be put into effect, and already in 1949, the Council of Europe was established. Its own document, the European Convention on Human Rights (ECHR), directly relies on the UDHR, but being a legally binding document the keeping to its principles can be sued at the Commission of Ministers or the Strasbourg-based European Court of Human Rights (CHR) as the last instance by both the states that have signed the Convention and their citizens. Though its decisions have in some cases given rise to amendments of the existing legislation,^[4] the Court cannot force changes in national laws upon states:

"[...] the extent to which, if at all, the Convention enters and is incorporated into the national legal order is a matter determined exclusively by the constitutional provisions of the State in question" (Fletcher 1980, p. 158).

And decision-making in the Commission itself is difficult, as the commissioners of different European states have to come to an unanimous decision. Furthermore, during the Cold War the Council of Europe had only limited impact as regards the whole of Europe: it remained a purely Western organisation. However, it laid down norms that not only superceded the national structure, but, if violated, could also be sued in an international court: the idea of universally applicable human rights was thus strengthened.^[5]

In fact, the European Convention probably has become more influential in a quite different institutional setting of growing importance. Seven years before the CHR could actually start its work, the European Court of Justice (ECJ) had been established to ensure that the law is observed in the treaty of the European Coal and Steel Community (ECSC). With the increasing integration of the Community on the one hand, and a lack of applicable laws on the other hand, the ECJ drew more and more often on the European Convention regarding it as a common European legal heritage. Thus, in addition to the economic and social rights of the ECSC treaty, human and civil rights were (unwillingly one could say) put on the Community's agenda.^[6]

The Conference on Security and Cooperation in Europe (CSCE) was the only political institution in Europe that brought together states of the Western and Eastern blocks. The Helsinki Final Act of 1975 can be regarded as a major break-through in the field of human rights:

"The states were to respect human rights and fundamental freedoms 'including the freedom of thought, conscience, religion or belief' and were to promote 'civil, political, economic, social, cultural and other rights and freedoms' (Survival Nov/Dec 1975, p. 297). It was recognized that the respect of human rights and fundamental freedoms was an essential factor to develop friendly relations and cooperation among states" (Archer 1994, p. 71).

The third of the CSCE's "baskets" was especially designed to enhance cooperation in the field of human rights and humanitarian issues. Naturally, there was no enforcement mechanism; but very soon so-called Helsinki Committees organised nationally to put pressure on their respective states to obey to the standards set in the Final Act.^[7]

However, human rights considerations were far from influential in politics in Cold War Europe: violations of UDHR principles (e.g. Arts. 13.2, 18, 19) especially in the totalitarian regimes of Spain, Portugal and Greece and the communist countries could neither be sued by their own citizens, nor was there a possibility to put pressure on these states from the West as this could lead at best to further alienation. This situation should change completely with the fall of the Berlin wall.

2. The double challenge of the "new Europe" and political responses

Gorbachev's new political course eventually led to the end of the Cold War period that officially was declared in 1990 by the CSCE in its "Charter of Paris for a New Europe". European international politics from now on should be based on cooperation and mutual assistance. There was a lot of optimism for the new era as the post-communist leaders all seemed to be committed to democracy and officially acknowledged the importance of human rights principles. Post-communism was often regarded as just another transition to democracy, but on a wider scale than the one that already had successfully taken place in southern Europe. Furthermore, Western politicians were now in the position to put pressure on other states and influence the political sphere: standards were set up for the central and east-European countries (CEECs) that pushed to join NATO and EU, and since the threat of a Third World War had disappeared - along with the opposing state model and military power -, Western diplomacy could become more demanding, especially in the field of human rights, and could openly play the card of unchallenged military supremacy. In the West, the defence of human rights was actually increasingly perceived as a mere duty of those who had the means for it at hand.

The political possibilities of the "new Europe" for human rights, however, were soon overshadowed by the fact that the human rights situation had far from improved. First of all, the newly established states often were (and still are) based on a radical notion of nationhood that threatens minority rights;^[8] second, the possibility of a Third World War has been replaced by the reality of "low-scale" ("new") wars within and outside Europe that has culminated in cases of ethnic cleansing (Balkan wars, Rwanda);^[9] third, these two factors have led to increased migration to and within Europe so that especially the West was confronted with the problem of how to secure the rights of an ever increasing number of refugees and asylum seekers (discussed in more detail below).

[...]

^[1] Britannica 1997, p. 656.

^[2] Fletcher 1980, p. 140.

^[3] Britannica 1997, p. 660.

^[4] Probably the latest example is Germany's change in the constitution to give women the right to be employed in armed units of the Bundeswehr (Helm 2001).

^[5] On the Council of Europe, its history and influence in Cold War Europe compare Fletcher 1980.

^[6] On the European Court of Justice compare Fletcher 1980, p. 165-7.

^[7] On the CSCE compare Archer 1994, pp. 265-76.

^[8] Compare Pogany 1999, who additionally points to a related problem: "The persistent tendency in Central and Eastern Europe to seek to realise the aspirations of each nation through a separate state represents one of the most potent threats to legitimate minority rights in the region" (p. 158f.).

^[9] The concept of "new wars" has been introduced and discussed by Kaldor 1999.