Factors Which Enable Or Hinder the Protection of Human Rights Eventh Seventh Olicies

05/04/2017 16.29

er an José essing ano assen (editor) F ayrho arcía s arcía edel k tto s tto o aria l m onika m ans- ikke Frank Jørgensen aniel g eter v va p h d r m e human rights Factors which which Factors enable or or enable the hinder oF protection

Factors which enable or hinder the protection oF human rights eventh seventh olicies. Frame , international and , international overnance governance global for entre agenda. high on the eu human rights are is facing multiple the eu however, commitment fulfil its declared challenges to human rights. and protect promote to of Frame the focus are these challenges , on project research an interdisciplinary among european human rights Fostering p and internal) (external research is a large-scale, collaborative funded under the eu’sproject (Fp7), programme coordinated Framework the leuven c by institutes 19 research studies and involving focuses the world. our research around from and internal of the eu’s on the contribution of human the promotion policies to external rights worldwide. as part of the Frame researchers project, and other experts at the danish institute with human rights, in collaboration for other universities, have from researchers cultural, historical, been working on key political, ethnic, religious legal, economic, impact that may factors and technological human rights at the eu national levels. some of the results in this series, we present of our work. human rights to is relevant the research and civil society, academics, practitioners, at the national, regional, policy-makers and eu levels. international Frame_omslag_11,6.indd 1 Factors which enable or hinder the protection oF human rights

authors: eva maria lassen (editor), monika mayrhofer, peter vedel kessing, hans-otto sano, daniel garcía san José, rikke Frank Jørgensen

Funding: Frame Fostering human rights among european (external and internal) policies. large-scale Fp7 collaborative project ga no. 320000 1 may 2013-30 april 2017

isbn: 978-87-93241-97-8

doi.org/20.500.11825/69

coverdesign: heddabank.dk print: toptryk grafisk

provided such reproduction is for non-commercial use, this publication, or parts of it, may be reproduced if author and source are quoted.

Frame_omslag_11,6.indd 2 05/04/2017 16.29 Fostering Human Rights among European Policies

Large-Scale FP7 Collaborative Project GA No. 320000 1 May 2013-30 April 2017

Factors which enable or hinder the protection of human rights Work Package No. 2 – Deliverable No. 1

Due date 31 July 2014

Submission date 4 August 2014

Dissemination level PU

Lead Beneficiary The Danish Institute for Human Rights

Authors Eva Maria Lassen (editor), Monika Mayrhofer, Peter Vedel Kessing, Hans- Otto Sano, Daniel García San José, Rikke Frank Jørgensen

http://www.fp7-frame.eu

doi.org/20.500.11825/69

Preface

The EU today stands at a crossroads with regard to human rights: although human rights are high on its agenda the EU is facing multiple challenges of carrying the torch of human rights, within EU Member States and in relation to the wider world.

These challenges are the focus of FRAME, an interdisciplinary research project on Fostering Human Rights Among European (External and Internal) Policies. FRAME is a large-scale, collaborative research project funded under the EU’s Seventh Framework Programme (FP7), coordinated by the Leuven Centre for Global Governance Studies and involving 19 research institutes from around the world. Our research focuses on the contribution of the EU’s internal and external policies to the promotion of human rights worldwide.

In this series of publications, we have collected some of the work carried out by researchers and other experts at the Danish Institute for Human Rights, in collaboration with researchers from other universities, as part of the FRAME project. The four publications have been written with contributions from scholars and experts from The Ludwig Boltzmann Institute of Human Rights, Vienna; European Training and Research Centre for Human Rights and Democracy, Graz; University of Seville; Leuven Centre for Global Governance Studies, KU Leuven, and the Danish Institute for Human Rights.

In our work we have aimed at illuminating contemporary human rights challenges by way of analysing the historical, political, legal, economic, social, cultural, religious, ethnical and technological factors that both facilitate and hamper the efforts of the EU in its efforts to promote and protect human rights, within the EU and in the world at large.

It is hoped the insights gained from this research may contribute to informing the debate – among human rights academics, practitioners, civil society, and policy-makers - about the EU’s future direction in the important field of human rights.

April 2017

Eva Maria Lassen

Senior researcher

The Danish Institute for Human Rights FRAME Deliverable No. 2.1

Executive Summary In assessing the factors that influence the protection and promotion of human rights in the European Union (EU), this report elucidates those factors that cut across the catalogue of human rights. This report seeks to examine contemporary human rights challenges in this context by mapping the historical, political, legal, economic, social, cultural, religious, ethnical and technological factors that both facilitate and hamper human rights in the EU. Preface This report is part of Work Package 2 ‘Challenges and Factors’ of the EU’s Seventh Framework Programme (FP7) project Fostering Human Rights among European Policies (FRAME). This first cluster of FRAME constitutes the foundations of a sound knowledge base for the assessment of EU human rights policies, The EU today stands at a crossroads with regard to human rights: although human rights are high on its encompassing the evolving factors, concepts, institutions and instruments that underlie human rights agenda the EU is facing multiple challenges of carrying the torch of human rights, within EU Member States protection and promotion. and in relation to the wider world.

These challenges are the focus of FRAME, an interdisciplinary research project on Fostering Human Rights The objective of the report is to analyse these crucial factors while taking into account challenges brought Among European (External and Internal) Policies. FRAME is a large-scale, collaborative research project about by globalisation, with a focus on access to basic rights. The report does this through the provision funded under the EU’s Seventh Framework Programme (FP7), coordinated by the Leuven Centre for Global of a qualitative mapping addressing the major topics related to each factor. The report is divided into 10 Governance Studies and involving 19 research institutes from around the world. Our research focuses on chapters and provides a chapter on each of the above cross-cutting factors, including an overview of the the contribution of the EU’s internal and external policies to the promotion of human rights worldwide. factor drawn from a literature review, an assessment of current knowledge of the factor and its impact on human rights in the EU, and challenges and gaps requiring further study. In this series of publications, we have collected some of the work carried out by researchers and other experts at the Danish Institute for Human Rights, in collaboration with researchers from other universities, The report canvasses the major landmarks in EU history, with a view both to its external and internal as part of the FRAME project. The four publications have been written with contributions from scholars and policies (Chapter II, Historical), before addressing the inherently political nature of human rights experts from The Ludwig Boltzmann Institute of Human Rights, Vienna; European Training and Research themselves and the importance of States, sovereignty, ideologies, power, citizenship and democracy to Centre for Human Rights and Democracy, Graz; University of Seville; Leuven Centre for Global Governance their implementation (Chapter III, Political). Turning to legal factors, the report considers the coherence Studies, KU Leuven, and the Danish Institute for Human Rights. of obligations within the EU; whether the EU is bound by human rights obligations when acting externally; In our work we have aimed at illuminating contemporary human rights challenges by way of analysing the the relationship of human rights obligations and other international law norms; and finally shared human historical, political, legal, economic, social, cultural, religious, ethnical and technological factors that both rights responsibility between the EU and Member States (Chapter IV, Legal). facilitate and hamper the efforts of the EU in its efforts to promote and protect human rights, within the EU and in the world at large. Taking post-crisis Europe as its departure point, the report analyses the economic dimensions of human rights in the EU, including the significance of economic decline, the internal market, poverty, employment, It is hoped the insights gained from this research may contribute to informing the debate – among human foreign policy, and development and trade (Chapter V, Economic). Turning to social factors, the report rights academics, practitioners, civil society, and policy-makers - about the EU’s future direction in the addresses the importance of the principle of non-discrimination in EU policy and institutions, before important field of human rights. specifically considering the aspects of gender, sexual orientation, disability and age (Chapter VI, Social).

The report then zooms in on cultural and religious factors. Taking a dualistic approach, this chapter focuses on those cultural and religious factors which may hinder or facilitate EU human rights policies as well as April 2017 topical human rights issues which have a substantial impact on the space provided for culture and religion in a human rights context (Chapter VII, Cultural and Religious). Closely related to cultural and religious factors, the report proceeds to ethnical factors, addressing in particular ethnic minorities and their Eva Maria Lassen enjoyment of basic rights (Chapter VIII, Ethnical).

Senior researcher The report goes on to consider the importance of technological factors in relation to human rights policies in the EU. This chapter analyses non-discriminatory access to the internet; protecting internet freedoms; The Danish Institute for Human Rights

iii FRAME Deliverable No. 2.1 freedom of epression and selfreglation privac srveillance and cer secrit and internet governance Chapter Technological Finall the report concldes with a smmar of the chapters ke insights from each factor and recommendations for frther std and analsis

The EU toda stands at a crossroads with regard to hman rights Taking into accont historical political legal economic social cltral religios ethnical and technological factors that enale or hinder hman rights protection this report sets ot the crossctting isses that may inform the Union’s future direction.

iii

iv FRAME Deliverable No. 2.1 FRAME Deliverable No. 2.1 freedom of epression and selfreglation privac srveillance and cer secrit and internet List of abbreviations governance Chapter Technological Finall the report concldes with a smmar of the chapters ke ntiounterfeitin rade reement insights from each factor and recommendations for frther std and analsis he ssessment eort on imate hane mact datation and uneraiity The EU toda stands at a crossroads with regard to hman rights Taking into accont historical political legal economic social cltral religios ethnical and technological factors that enale or hinder hman rai ussia ndia and hina rights protection this report sets ot the crossctting isses that may inform the Union’s future direction. hief ecutie fficer

ommittee for the imination of orms of acia iscrimination

omuter merency esonse eams

U harter of undamenta ihts of the uroean Union

U ourt of ustice of uroean Union

o ounci of uroe

uman ihts orin rou of the ounci of uroe

entre on ousin ihts and ictions uroean ommittee of ocia ihts

onention on the ihts of ersons ith isaiities

s ii ociety raniations

uroean ommunity

uroean conomic ommunity

uroean onention on uman ihts

uroean ourt of ustice

uroean ommission ainst acism and ntoerance

t uroean ourt of uman ihts

i uroean iita ihts

uroean terna ction erice

uroean conomic ommunity

uroean inancia taiity aciity

uroean nstrument of emocracy and uman ihts

uroean atform ainst oerty iii i

v FRAME Deliverable No. 2.1

uroean taiity echanism

U uroean Union

U uroean oernance orum

uroean Union ency for undamenta ihts

U uman ihts ommittee

nternet ssined umers uthority

nternationa ororation for ssinin ames and umers

nternationa onenant on ii and oitica ihts

nternationa ourt of ustice

nformation and ommunication echnooy

nternet oernance orum

nternationa uman ihts a

nternationa a ommission

nternationa onetary und

he United ations nteroernmenta ane of erts on imate hane

nteectua roerty ihts

nternet erice roider

s oca uthorities

esian ay iseua ransender nterse uestionin

he ommittee on ii ierties ustice and ome ffairs

iennium eeoment oas

United ations ffice of the ih ommission for uman ihts

ranisation of samic ooeration

fficia ourna of uroean Union

en ethod of oordination

vi FRAME Deliverable No. 2.1 FRAME Deliverable No. 2.1

uroean taiity echanism utriht onetary ransactions

U uroean Union riacy nternationa

U uroean oernance orum ectronic sureiance aunched y the U ationa ecurity ency

uroean Union ency for undamenta ihts hirdcountry nationa

U uman ihts ommittee reaty estaishin the uroean conomic ommunity

nternet ssined umers uthority U reaty on uroean Union

nternationa ororation for ssinin ames and umers U reaty on the unctionin of the uroean Union

nternationa onenant on ii and oitica ihts U reaty on the unctionin of the uroean Union

nternationa ourt of ustice s ransnationa omanies

nformation and ommunication echnooy reaty on taiity oordination and oernance in the conomic and onetary Union

nternet oernance orum ransatantic rade and nestment artnershi

nternationa uman ihts a U Uniersa ecaration of uman ihts

nternationa a ommission U United ations ducationa cientific and utura raniation

nternationa onetary und he orin rou o of the

he United ations nteroernmenta ane of erts on imate hane U ord ummit on the nformation ociety

nteectua roerty ihts ord rade raniation

nternet erice roider ord ar

s oca uthorities esian ay iseua ransender nterse uestionin

he ommittee on ii ierties ustice and ome ffairs

iennium eeoment oas

United ations ffice of the ih ommission for uman ihts

ranisation of samic ooeration

fficia ourna of uroean Union

en ethod of oordination

vii FRAME Deliverable No. 2.1

Table of Contents iii . ain ey cutura economic ethnica historica ea oitica reiious socia and technooica factors ...... . ethodooy ...... . ontents of the reort ...... . ntroduction ...... . tructure and methodooy ...... . iscoerin human rihts andmars in the history of the U ...... . oncusions and future ersecties ...... . iiorahy ...... . ntroduction ...... . Political factors which enable or hinder the protection of human rights in the EU’s external and interna oicies ...... . oncusions ...... . iiorahy ...... . ntroduction ...... . oa contet ...... . uroean contet ...... . oncusion ...... . iiorahy ...... . ntroduction ...... . oa and uroean contet – he economic crisis and its onsauht on the uroean economy ...... . U economic factors enain or hinderin the rotection of human rihts ...... . oncusions ......

viii FRAME Deliverable No. 2.1 FRAME Deliverable No. 2.1

Table of Contents E ibliograph iii ntroduction ender . ain ey cutura economic ethnica historica ea oitica reiious socia and exual orientation and gender identit technooica factors ...... isabilit . ethodooy ...... E ge . ontents of the reort ...... onclusions ibliograph . ntroduction ...... . tructure and methodooy ...... ntroduction . iscoerin human rihts andmars in the history of the U ...... lobal context . oncusions and future ersecties ...... he European context . iiorahy ...... onclusion E ibliograph . ntroduction ...... . Political factors which enable or hinder the protection of human rights in the EU’s external and ntroduction interna oicies ...... he global context . oncusions ...... European context . iiorahy ...... onclusions E ibliograph . ntroduction ...... . oa contet ...... ntroduction . uroean contet ...... lobal context . oncusion ...... European context . iiorahy ...... onclusion E ibliograph . ntroduction ...... . oa and uroean contet – he economic crisis and its onsauht on the uroean economy ...... . U economic factors enain or hinderin the rotection of human rihts ...... . oncusions ......

ii iii

FRAME Deliverable No. 2.1

I. Introduction

A. Mapping key cultural, economic, ethnical, historical, legal, political, religious, social and technological factors egional and international differences notwithstanding a number of factors cut across the catalogue of human rights and significantl influence the protection of the rights of the indiidual as well as those regional and international mechanisms and instruments entrusted to mae human rights a realit mong the most decisie are historical political legal economic social cultural religious ethnical and technological factors he present report proides a mapping of how these factors enable or hinder the protection of human rights in the context of the European Union’s (EU) external and internal policies, taing into account challenges brought about b globalisation he report addresses these factors with a particular focus on the access to basic rights but within the framewor of a holistic approach to human rights acnowledging the indiisibilit of human rights as laid down in international as well as EU human rights law

he report proides an oeriew of the factors and based on a literature reiew and aailable data an assessment of the current nowledge on the impact of these factors on the protection of human rights in the context of the EU he report furthermore points to challenges and gaps that need further exploration and analsis for the most part to be carried out in future wor under the auspices of E

B. Methodology For the purpose of this report, the term ‘factor’ has been defined as an element, circumstance or distinguishing feature which in the context of the EU’s external and internal policies significantly enables or hinders the protection of human rights factor is to be understood in a dnamic wa deeloping in interaction with changes in societ and law

he report has the nature of a ualitatie mapping herefore whilst the aim has not been to gie an in depth stud of the field the authors hae stried to proide a comprehensie mapping in the sense that maor topics related to each factor are illuminated

he report is diided into a total of chapters following the introductor chapter and chapter on historical factors which also seres as an oerarching framewor for the entire report a maorit of the chapters hae been structured as follows

 n introduction to the literature coering the gien factors with an emphasis on scientific literature  he lobal context his section proides a contextualisation of the factor at the global leel identifying issues which hinder or enable the protection of human rights in EU’s external and internal policies  he European context his section maes up the substantial part of the chapters ased on a literature reiew and an introduction to the releant EU institutions instruments policies and actions the chapters aim to identif and discuss a series of issues within the gien factor which hinder or

1 FRAME Deliverable No. 2.1

enable the protection of human rights in the context of EU external and internal policies he mapping exercise will be conducted in iew of, for instance, the policies and practices of the EE and of the most releant directoratesgenerals of the European ommission such as rade, eo, U, ome and E he following elements hae been considered when analysing the literature and documents human rights implications and impact of the factors in uestion the main instruments and policies dealing with the issue and the social actors inoled (such as ciil society and societal moements)

he chapters on political and social factors respectiely hae mostly but not entirely followed this structure o contextualise political factors in a global context would for example hae gone beyond the scope of this report hus the chapter on political factors focuses on a short definition of the different factors followed by a brief discussion on the most important ways in which the respectie political factor hinders or enables human rights protection ubseuently, the chapter elaborates on the role of the respectie factors in the EU context Eually, social factors are more dependent on aspects which refer to the nature and constitution of the EU and less dependent on the global context

C. Contents of the report hapter , the ntroduction, contains the main preface to reading the report

hapter sets the scene for the report by pointing to historical factors (circumstances or eents) that have been hindering or facilitating the EU’s development of human rights protection and policies, in its internal and external actions he chapter includes historical landmars from postwar Europe until today he chapter shows how the EU responded to the historical circumstances or eents in ways which hae had a bearing on its presentday human rights positions as well as on current challenges (for instance the scope of EU human rights law and elements of incoherence between the EU’s internal and external policies) he historical eolution of important human rights institutions and instruments, which emerged, directly or indirectly, as a result of the response of the European ommunity to historical circumstances is outlined he chapter also includes historical factors on the global scene which hae had an enabling or hindering influence on the EU in its human rights position

hapter concerns political factors enabling or hindering protection of human rights, themseles deeply political hey are defined in a political context by political actors or within political institutions hey are used as political instruments in political campaigns and the definition of human rights norms and standards are political issues, sometimes highly contested t is important to emphasise that political factors that hinder or enable human rights are releant to seeral political dimensions the dimension of politics, which refers to political processes, as well as the policy dimension, meaning the content or substance of politics, and, in addition, political structures hus, the following political factors were identified to be crucial aspects concerning the implementation of human rights in EU policies tates and state soereignty, ideologies, power, citienship and democracy

n hapter , focus is on legal factors, with four main topics discussed Firstly, to what extent the EU and ember tates implementing EU law are bound by clear and consistent human rights obligations when acting internally within the EU area here is a specific focus on the EU harter on Fundamental ights

2 FRAME Deliverable No. 2.1 FRAME Deliverable No. 2.1 enable the protection of human rights in the context of EU external and internal policies he mapping EU and the accession of the EU to the European onvention on uman ights E and eventuall exercise will be conducted in iew of, for instance, the policies and practices of the EE and of the to other international human rights conventions econdl, whether the EU is bound b human rights most releant directoratesgenerals of the European ommission such as rade, eo, obligations when acting eternall and more specificall whether the EU is applicable when the EU is U, ome and E he following elements hae been considered when analysing the acting in third tates hirdl, the relationship between EU human rights obligations and other literature and documents human rights implications and impact of the factors in uestion the main international law obligations and finall the uestion of shared human rights responsibilit between the instruments and policies dealing with the issue and the social actors inoled (such as ciil society EU and EU ember tates is briefl touched upon and societal moements) hapter concerns economic factors he point of departure for the analsis is the situation in Europe he chapters on political and social factors respectiely hae mostly but not entirely followed this after when the economic and financial crisis developed he overview focuses on the economic structure o contextualise political factors in a global context would for example hae gone beyond the decline, the functioning of the internal maret, povert and social eclusion, emploment, and scope of this report hus the chapter on political factors focuses on a short definition of the different development and trade he implications of the crisis affected human rights protection more profoundl factors followed by a brief discussion on the most important ways in which the respectie political factor internall than eternall he chapter demonstrates how internall, the economic and financial crisis hinders or enables human rights protection ubseuently, the chapter elaborates on the role of the contributed to a deterioration of adeuate living standards, social securit, and a growing sense of respectie factors in the EU context Eually, social factors are more dependent on aspects which refer to eclusion he crisis also resulted in growing unemploment and eclusion of a high proportion of the the nature and constitution of the EU and less dependent on the global context outh from the labour maret urves, moreover, demonstrate a lac of trust in the benefits of the internal maret C. Contents of the report hapter , the ntroduction, contains the main preface to reading the report hapter focuses on social factors he EU has made significant efforts to address social factors which enable or hinder the protection of human rights in its policies he EU has not onl stipulated eualit as hapter sets the scene for the report by pointing to historical factors (circumstances or eents) that a basic principle in its primar law but also eplicitl enabled EU institutions to tae measures to combat have been hindering or facilitating the EU’s development of human rights protection and policies, in its discrimination on grounds of se, racial or ethnic origin, religion or belief, disabilit, age or seual internal and external actions he chapter includes historical landmars from postwar Europe until today orientation urthermore, EU widened the scope of grounds of discrimination b prohibiting he chapter shows how the EU responded to the historical circumstances or eents in ways which hae discrimination on grounds of se, race, colour, ethnic or social origin, genetic features, language, religion had a bearing on its presentday human rights positions as well as on current challenges (for instance the or belief, political or an other opinion, membership of a national minorit, propert, birth, disabilit, age scope of EU human rights law and elements of incoherence between the EU’s internal and external or seual orientation he chapter aims at elaborating on the aspects of gender, seual orientation, policies) he historical eolution of important human rights institutions and instruments, which emerged, disabilit and age directly or indirectly, as a result of the response of the European ommunity to historical circumstances is outlined he chapter also includes historical factors on the global scene which hae had an enabling or hapter ooms in on cultural and religious factors he approach of the chapter is dualistic, focusing hindering influence on the EU in its human rights position on those cultural and religious factors which ma hinder or facilitate EU human rights policies as well as topical human rights issues which have a substantial impact on the space provided for culture and religion hapter concerns political factors enabling or hindering protection of human rights, themseles deeply in a human rights contet he chapter starts with an introduction to the topic at a global level, going bac political hey are defined in a political context by political actors or within political institutions hey are to the Universal eclaration of uman ights U and introducing the different phases of the used as political instruments in political campaigns and the definition of human rights norms and universalit debate fter a presentation of the European contet of the interpla between human rights, standards are political issues, sometimes highly contested t is important to emphasise that political culture and religion, the chapter proceeds to map the following overarching themes, which are amongst factors that hinder or enable human rights are releant to seeral political dimensions the dimension of the most topical in human rights discourses globall and within the EU, its ember tates and third politics, which refers to political processes, as well as the policy dimension, meaning the content or countries toda women and gender in the contet of cultural and religious diversit with focus on substance of politics, and, in addition, political structures hus, the following political factors were eternal policies promoting religious freedom and religious and cultural diversit and tolerance the identified to be crucial aspects concerning the implementation of human rights in EU policies tates and state, religion and culture state soereignty, ideologies, power, citienship and democracy hapter concerns ethnic factors fter an introduction to the concepts of intersectional and multiple n hapter , focus is on legal factors, with four main topics discussed Firstly, to what extent the EU and discrimination, the chapter proceeds to a mapping of maor international instruments related to ethnicit ember tates implementing EU law are bound by clear and consistent human rights obligations when and human rights hen follows an analsis of the instruments and policies of the EU as well gaps and acting internally within the EU area here is a specific focus on the EU harter on Fundamental ights challenges visvis policies and implementation, followed b an introduction to a number of selected

3 FRAME Deliverable No. 2.1 factors that within the EU and its ember states are of crucial importance to the enoment of basic rights of individuals belonging to ethnic minorities, namel access to the labour maret, access to health services, access to information, and hate crime inall, a section is dedicated to the oma, the largest ethnic minorit group of Europe concluding section then sums up the mapping, pointing to gaps and challenges and suggesting avenues for further research and analsis

n hapter , technological factors are analsed echnological factors are understood as issues related to the use of information and communication technolog that have an impact on the wa individuals are able to eno their human rights is a broad and not clearl defined term that refers to a broad arra of communication devices andor applications n this chapter emphasis is on human rights issues related to the use of the internet, reflecting the attention the internet has received in the scholarl literature and policy debate pertaining to its potential impact on individuals’ enjoyment of rights such as freedom of epression and privac he chapter is structured according to five selected factors non discriminator access to the internet protecting internet freedoms freedom of epression and self regulation privac, surveillance, and cber securit and internet governance

hapter , onclusions, contains a summar of the chapters and the most important insights to be gained from each of the factors, a reflection on crosscutting issues, and recommendations for further stud and analsis

he authors of the chapters are credited at the beginning of each chapter Unmared chapters hapters and were written b Eva aria assen, in collaboration with the group of authors

4 FRAME Deliverable No. 2.1 FRAME Deliverable No. 2.1 factors that within the EU and its ember states are of crucial importance to the enoment of basic rights II. Historical factors of individuals belonging to ethnic minorities, namel access to the labour maret, access to health services, access to information, and hate crime inall, a section is dedicated to the oma, the largest A. Introduction ethnic minorit group of Europe concluding section then sums up the mapping, pointing to gaps and his chapter sets the scene for the report by pointing to historical factors circumstances or events that challenges and suggesting avenues for further research and analsis have been hindering or facilitating the European Union’s (EU) development of human rights policies in its internal and eternal actions he chapter includes historical landmars from postar urope until today n hapter , technological factors are analsed echnological factors are understood as issues related he chapter shos ho the and its forerunners responded to the historical circumstances and events to the use of information and communication technolog that have an impact on the wa individuals in ays hich have had a bearing on the presentday human rights positions for instance the scope of are able to eno their human rights is a broad and not clearl defined term that refers to a broad EU human rights law and elements of incoherence between the EU’s internal and external policies). The arra of communication devices andor applications n this chapter emphasis is on human rights issues historical evolution of important human rights institutions and instruments hich emerged directly or related to the use of the internet, reflecting the attention the internet has received in the scholarl indirectly as a result of the response of the and its forerunners to historical circumstances ill be literature and policy debate pertaining to its potential impact on individuals’ enjoyment of rights such as outlined n this sense the chapter also provides a mapping of ho human rights themselves came to be freedom of epression and privac he chapter is structured according to five selected factors non a ey feature of the architecture inally the chapter includes historical factors at the global level hich discriminator access to the internet protecting internet freedoms freedom of epression and self have had an enabling or hindering influence on the in its human rights position regulation privac, surveillance, and cber securit and internet governance B. Structure and methodology hapter , onclusions, contains a summar of the chapters and the most important insights to be gained y addressing historical factors the chapter illuminates three dimensions of the human rights in the from each of the factors, a reflection on crosscutting issues, and recommendations for further stud and and its internal policies and its accession policies visvis ne ember tates and human rights analsis in the EU’s external policies. The chapter will outline ho these historical factors had an impact on the he authors of the chapters are credited at the beginning of each chapter Unmared chapters hapters and its forerunners in these three dimensions and were written b Eva aria assen, in collaboration with the group of authors he chapter largely follos a linear historically progressing structure pointing out historical factors hich resulted in the gradual evolution of human rights in the contet of the internal and eternal policies of the uropean conomic ommunity the uropean ommunity and the he chapter is based on a literature revie together ith a reading of the most important documents reflecting the historical evolution

1. Literature review cholarship on the history of human rights is still in its infancy as indeed is the history of human rights in general he history of human rights in urope is for the most part ritten by historians and in particular legal scholars ho often provide a brief historical account of the development of for instance a given human rights instrument or practice cholars of other disciplines have occasionally analysed aspects of the human rights history for instance scholars of philosophy

 he author of this chapter is r va aria assen enior esearcher the anish nstitute for uman ights detailed mapping of institutions mechanisms and instruments ill not be provided as these are the object of another ithin the contet of and in addition described in hapter on egal factors of the present report

5 FRAME Deliverable No. 2.1

C. Discovering human rights: landmarks in the history of the EU

1. A new beginning: Europe after WW2 The origin of the EU dates bac to postwar Europe with the creation of firstl the European oal and teel ommunit in then the EE and the European tomic Energ ommunit in . The EE had six founding members. The overall obective of this earl constellation was to promote economic integration within Europe.

The human rights proect was not part of EE obectives and hence not a building bloc of the EE foundation and structure. The European arliament pushed for human rights recognition within the EE as earl as the s and s (van aersolte and iebenga ) but onl much later did human rights enter centre stage.

The European human rights proect was left to other regional organisations notabl the ouncil of Europe established in . The European human rights proect closel followed the human rights agenda of the newl established United ations notabl expressed in the Universal eclaration of uman ights (U).

ostwar Europe was a Europe divided. The old ar and the division of Europe for most of the second half of the th centur were the most important historical factors as concerns the development of human rights and democrac in the Eastern and estern parts of Europe respectivel.

2. Historical landmarks in EU legal history: the evolution of a human rights architecture and instruments This section will loo at the evolution of the approach of the EEEEU to human rights tracing the development from almost silence on the matter to the present day’s comprehensive – albeit often disputed – embrace of the human rights proect b the EU in the context of its internal and external policies. aor historical landmars influenced this development.

a) ECHR, UDHR, and landmark cases of the European Court of Justice (ECJ) Two historical factors had momentous influence on the eventual emergence of human rights in the mae up of the EU. irst the creation of the European onvention of uman ights (E) of () within the framewor of the ouncil of Europe and the accompaning European ourt of uman ights (Et). E and the urisprudence of the Et were to be a source of inspiration for the E.

The second historical factor is the adoption of the U of a result of the attempt of the global communit to create a new world based on human rights (osas ). This declaration is not legall binding upon tates and exactl this fact provided the EE which could not ratif U conventions with the opportunity to point to the UDHR as ‘guiding’ and a source of ‘inspiration’ (Rosas 2009: 417; Rosas ). Thus the U had a more inspirational influence on the E than in the ember tates which had ratified the European onvention and other binding documents and therefore saw no need to consult the U as a source of influence (aichand and usi assen ). This had a bearing on the approach of the EEEU to the catalogue of human rights. hereas the E is primaril concerned with

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C. Discovering human rights: landmarks in the history of the EU political and civil rights the UDHR emphasises the interdependence and indivisiility of international human rights and hence the entire catalogue of human rights he U human rights urisprudence and 1. A new beginning: Europe after WW2 primary la hich ere to emerge emphasised as the UDHR the indivisiility of human rights and The origin of the EU dates bac to postwar Europe with the creation of firstl the European oal and included not only political and civil rights ut also economic social and cultural rights teel ommunit in then the EE and the European tomic Energ ommunit in . The EE had six founding members. The overall obective of this earl constellation was to promote economic he had no ill of rights ut finding inspiration in the aove legal documents and case la this did integration within Europe. not eep the from gradually uilding urisprudence hen dealing ith matters of relevance visvis human rights The human rights proect was not part of EE obectives and hence not a building bloc of the EE foundation and structure. The European arliament pushed for human rights recognition within the EE numer of landmar udgments emerged in the 190s and 1970s among hich the folloing three as earl as the s and s (van aersolte and iebenga ) but onl much later did human rights deserve mentioning irst in its udgment of 199 in Stauder the ourt laid don that fundamental rights enter centre stage. form part of the general principles of ommunity la (Rosas 2009: 41; ase 299 Stauder 199 R 419 econd in Internationale Handelsgesellschaft the socalled olange case of 1970 the ourt made The European human rights proect was left to other regional organisations notabl the ouncil of Europe reference to the ‘constitutional traditions common to Member States’ (ase 1170 Internationale established in . The European human rights proect closel followed the human rights agenda of the Handelsgesellschaft 1970 R 112 hird the udgment of Nold in 1974 positions the ommunity la newl established United ations notabl expressed in the Universal eclaration of uman ights in the broader perspective of ECHR and internal law: ‘… international treaties for the protection of (U). human rights on hich the emer tates have collaorated or of hich they are signatories can supply guidelines which should be followed within the framework of Community law’. Since then, the ECJ has ostwar Europe was a Europe divided. The old ar and the division of Europe for most of the second been using ECHR and international human rights instruments when ‘applying fundamental rights as half of the th centur were the most important historical factors as concerns the development of human general principles of Community law’ (Rosas 2009: 419; ase 47 Nold 1974 R 491 rights and democrac in the Eastern and estern parts of Europe respectivel. b) The fall of the Berlin Wall: a new Europe 2. Historical landmarks in EU legal history: the evolution of a human he 1990s itnessed the culmination of a decadelong process – and in the late 190s spurred y the fall rights architecture and instruments This section will loo at the evolution of the approach of the EEEEU to human rights tracing the of the erlin all and the end of the old ar hich ere to create an entirely ne political situation in development from almost silence on the matter to the present day’s comprehensive – albeit often urope (iris 2010: towards writing human rights into the Community’s primary law. The EC replaced disputed – embrace of the human rights proect b the EU in the context of its internal and external the y the reaty of aastricht in 1992 he concept of the U as estalished y the same treaty and ith the entry into force of the ison reaty in 2009 the U legally replaced the his change of policies. aor historical landmars influenced this development. language reflected that the uropean economic integration communities had developed into a political a) ECHR, UDHR, and landmark cases of the European Court of Justice as ell as an economic entity (ECJ) Two historical factors had momentous influence on the eventual emergence of human rights in the mae y the same toen human rights ere proclaimed as foundational Human rights ecame a cornerstone up of the EU. irst the creation of the European onvention of uman ights (E) of () within of the reconstructed ommunity n the reaty of aastricht human rights ere proclaimed as the framewor of the ouncil of Europe and the accompaning European ourt of uman ights (Et). fundamental to the U thus in rt (2 of the reaty on the uropean Union (U: E and the urisprudence of the Et were to be a source of inspiration for the E. he Union shall respect fundamental rights as guaranteed y the uropean onvention for the The second historical factor is the adoption of the U of a result of the attempt of the global rotection of Human Rights and undamental reedoms signed in Rome on 4 ovemer 190 and communit to create a new world based on human rights (osas ). This declaration is not legall as they result from the constitutional traditions common to the emer tates as general binding upon tates and exactl this fact provided the EE which could not ratif U conventions with principles of ommunity la the opportunity to point to the UDHR as ‘guiding’ and a source of ‘inspiration’ (Rosas 2009: 417; Rosas he reaty of ison entered into force in 2009 further cemented human rights as foundational for the ). Thus the U had a more inspirational influence on the E than in the ember tates which U namely in the ne rt 2 of the then amended U: had ratified the European onvention and other binding documents and therefore saw no need to consult the U as a source of influence (aichand and usi assen ). This had a bearing on the he union is founded on the values of respect for human dignity freedom democracy euality approach of the EEEU to the catalogue of human rights. hereas the E is primaril concerned with the rule of la and respect for human rights including the rights of persons elonging to

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minorities. These values are common to the Member States in a society in which pluralism, non discrimination, tolerance, ustice, solidarity and euality between women and men prevail. (rt. 1a

The E Constitutional Treaty of 2004 promised to be of maor historical significance. However, as the constitution was reected by popular referendum in 200 by rance and the etherlands, this important document never came into force (van Haersolte and iebenga 201: 1.

nstead, a milestone in E human rights history occurred in 2000 with the creation of the Charter of undamental Rights of the European nion (CRE. This constitutional documents proclaims that:

The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values.

Conscious of its spiritual and moral heritage, the nion is founded on indivisible, universal values of human dignity, freedom, euality and solidarity; it is supported on the principle of democracy and the principle of the rule of law. t places the person in the centre of its actions, establishing the citienship of the European nion and creating a space of freedom, security and ustice (reamble.

n 2009 the Charter became legally binding, in accordance with the Treaty of isbon. The catalogue of rights found in the Charter is more comprehensive than the ECHR. ot only does the Charter contain economic, social and cultural rights but, for instance, rights concerning data protection and bioethics. t the same time, however, the scope of the Charter is more limited than ECHR, notably in the sense that the Charter eplicitly only applies to E institutions and Member States when they implement E law (rt. 1(1. ther limitations apply and ambiguities embedded in the Charter and interpretations thereof have resulted in the scope, visvis both Member States and third countries, being continuously negotiated and subect to debate (see also Chapter .C.1.a.

nother milestone in E history is the possibility of acceding to the ECHR and of ratifying international conventions. ccording to the isbon Treaty, the E is bound to accede to the ECHR, and the process of accession is currently underway. s far as international conventions are concerned, so far only one convention has been ratified by the E, namely the Convention on the Rights of eople with isabilities (ratified in 2011, see Chapter on Social factors, Section . lthough the ratification of international conventions as well as accession to the ECHR open up the possibility of a strengthening of the human rights regime of the E, uncertainties about the scope and limitations visvis Member States as well as third countries abound (see also Chapter .

c) New Member States hereas today the E regulates the protection and promotion of human rights in Member States to a limited etent only, the ECCECE has historically been focused on its reuest for candidate countries to adhere to human rights nationally. n fact, the emphasis on human rights in the accession policy of the E was a maor step towards putting human rights on the map in the E. n the accession policy of the Community can be observed a pronounced ‘before and after’ the end of the Cold War.

8 FRAME Deliverable No. 2.1 FRAME Deliverable No. 2.1 minorities. These values are common to the Member States in a society in which pluralism, non n the frt phae n hch a nuber of Wetern uropean tate ere adtted to the Count discrimination, tolerance, ustice, solidarity and euality between women and men prevail. (rt. huan rht ere to arou deree an plct condton Wlla . 1a he econd phae cae a a repone to the fall of the erln Wall n the collape of the oet The E Constitutional Treaty of 2004 promised to be of maor historical significance. However, as the non and the deatatn conflct n the Wetern alan all draatc htorcal eent hch ere to constitution was reected by popular referendum in 200 by rance and the etherlands, this important hae onuental nfluence on the deelopent of huan rht n the . t a not a foreone document never came into force (van Haersolte and iebenga 201: 1. concluon ho the hould react to thee eent. oeer the Count choe to ebrace the uropean peace proect endeaourn to proote tablt and ecurt n the reon and nted Central nstead, a milestone in E human rights history occurred in 2000 with the creation of the Charter of and atern uropean countre of the forer oet non to becoe eber. undamental Rights of the European nion (CRE. This constitutional documents proclaims that: The enlargement has been called a ‘milestone in the creation of modern European peace’ and the ‘most The peoples of Europe, in creating an ever closer union among them, are resolved to share a coneuental codfcaton of a tranton to aretbased liberal democracy’ anar . he peaceful future based on common values. enlareent a a htorc tep n facltatn the deocrataton proce and the endoreent of Conscious of its spiritual and moral heritage, the nion is founded on indivisible, universal values huan rht n a unted urope. h acheeent led to the recen the obel re n . of human dignity, freedom, euality and solidarity; it is supported on the principle of democracy n th econd phae of the enlareent of the Count follon the collape of the oet non and the principle of the rule of law. t places the person in the centre of its actions, establishing explicit conditionality a central Wlla . hu huan rht claue ere ncluded n the the citienship of the European nion and creating a space of freedom, security and ustice uropean areeent concluded th canddate countre before the acceon to the n ne (reamble. eber to ne eber and one ne eber repectel oa . he n 2009 the Charter became legally binding, in accordance with the Treaty of isbon. The catalogue of ‘Copenhagen criteria’ of 1993 laid down criteria for accession of new countries to become members of rights found in the Charter is more comprehensive than the ECHR. ot only does the Charter contain the . ccordn to the Copenhaen crtera a ne eber tate ut pror to acceon inter alia be economic, social and cultural rights but, for instance, rights concerning data protection and bioethics. t able to demonstrate that they have ‘institutions that guarantee democracy, the rule of law, human rights the same time, however, the scope of the Charter is more limited than ECHR, notably in the sense that and repect for an protecton of norties’ (European Council 1993). Wth coprehene approal the Charter eplicitly only applies to E institutions and Member States when they implement E law (rt. procedure put n place thee condton upported the deocrataton procee n canddate countre 1(1. ther limitations apply and ambiguities embedded in the Charter and interpretations thereof have Wlla and thu facltated ncreaed huan rht protecton. resulted in the scope, visvis both Member States and third countries, being continuously negotiated he fall of the oet non and the a n hch the choe to repond to thee htorcal eent had and subect to debate (see also Chapter .C.1.a. implications for human rights protection in the EU’s policies in a broader sense, going beyond the policies nother milestone in E history is the possibility of acceding to the ECHR and of ratifying international vis candidate countries. First, with the increased focus on the importance of candidate countries’ conventions. ccording to the isbon Treaty, the E is bound to accede to the ECHR, and the process of adherence to huan rht thn ther urdcton attenton a alot autoatcall dran to the accession is currently underway. s far as international conventions are concerned, so far only one huan rht tuaton of etn eber tate a ell and chare of ncoherence n the poton convention has been ratified by the E, namely the Convention on the Rights of eople with of the eber tate and canddate countre repectel ere raed. econd the isabilities (ratified in 2011, see Chapter on Social factors, Section . lthough the ratification of enlareent of the ha potentall at leat ade the a ore forceful plaer at the lobal leel. international conventions as well as accession to the ECHR open up the possibility of a strengthening of d) Adapting to historical circumstances: Establishing new the human rights regime of the E, uncertainties about the scope and limitations visvis Member States institutions as well as third countries abound (see also Chapter . he eerncrean portance of huan rht to the reflected n the nttuton and ntruent etablhed alonde the recontructon of the uropean Counte n the a ell a later c) New Member States hereas today the E regulates the protection and promotion of human rights in Member States to a tructural chane and nnoaton. or eaple the poton of Cooner for utce undaental limited etent only, the ECCECE has historically been focused on its reuest for candidate countries to ht and Ctenhp th the concurrent rectorateeneral for utce a created n follon adhere to human rights nationally. n fact, the emphasis on human rights in the accession policy of the E the don of the forer utce reedo and ecurt. n addton pecfc huan rht are ncreanl was a maor step towards putting human rights on the map in the E. n the accession policy of the ben dealt th b releant Cooner for ntance related to health clate and educaton for Community can be observed a pronounced ‘before and after’ the end of the Cold War. or the date of acceon of ne eber tate n the perod – ee r .

9 FRAME Deliverable No. 2.1 institutions engaged in EU eternal policies, see below). lso worth mentioning is the oring arty on Fundamental Rights, Citizens’ Rights and Free Movement of Persons (FREMP).

EU primary law on human rights is applicable to the EU and its institutions only, with the eception of areas where EU law applies to the ember tates, who would otherwise adhere to human rights as laid down in national legislation, the EC and international human rights conventions and standards. ut what about the role of the EU in monitoring the human rights situation in ember tates more broadly

This was a core uestion prior to the establishment of the European Union gency for Fundamental ights (F) in . t was debated whether the gency should have a monitoring or, more modestly, an advisory role visvis Member States. The debate about the Agency’s mandate provides an illustration of a political and deeply rooted disagreement about the relationship between the EU with regard to the promotion and protection of human rights in ember tates – a disagreement which has never been put to rest. In the end, FRA was given an advisory role, mandated ‘to provide evidencebased advice on a wide range of fundamental rights, in line with the EU Charter of Fundamental Rights’ (van Haersolte and iebenga 13 13).3

n the basis of its mandate, F aims at supporting ember tates in their protection and promotion of human rights, as stated in its overall vision

The European Union (EU) ember tates have a long tradition of safeguarding fundamental rights. The EU itself is built on these values and is committed to guaranteeing the rights proclaimed in the Charter of Fundamental ights of the European Union. The European Union gency for Fundamental ights (F) was set up as an independent body to support this endeavour.

espite this heritage, many challenges prevent the delivery in practice of fundamental rights. Through the collection and analysis of data in the EU, the F assists EU institutions and EU ember tates in understanding and tacling these challenges. oring in partnership with the EU institutions, the EU ember tates and other organisations at the international, European and national levels, the F plays an important role in helping to mae fundamental rights a reality for everyone living in the EU.

F wors with thematic areas, formulated in a fiveyear ‘Multiannual Framework’, within which tass are carried out as prescribed in an nnual or rogramme. n addition, the gency each year publishes an annual report on the situation of human rights in the EU ember tates. n this way F provides the

3 ‘Who we are’ httpfra.europa.euenaboutfrawhoweare. ast accessed 1 une 1. httpfra.europa.euenaboutfundamentalrights. ast accessed 1 une 1. For the fiveyear plan 131, and the institutions involved in determining the plan, see httpfra.europa.euenaboutfrawhatwedoareasofwormultiannualframewor131. ast accessed ay 1. n 13, for instance, the gency carried out a survey on iscrimination and ate Crime against ews in selected EU ember tates eperiences and perceptions of antisemitism. httpfra.europa.euenpublication13discriminationandhatecrimeagainstewseumemberstates eperiencesand. ast accessed ay 1.

10 FRAME Deliverable No. 2.1 FRAME Deliverable No. 2.1 institutions engaged in EU eternal policies, see below). lso worth mentioning is the oring arty on EU institutions and Member States with independent, evidencebased advice on fundamental rights, Fundamental Rights, Citizens’ Rights and Free Movement of Persons (FREMP). aiming at contributing ‘towards ensuring full respect for fundamental rights across the EU’.

EU primary law on human rights is applicable to the EU and its institutions only, with the eception of In sum, the mandate of FRA is limited in the sense that the institution can only offer advice, but it is areas where EU law applies to the ember tates, who would otherwise adhere to human rights as laid epansive in the sense that the spectrum of human rights in focus is allencompassing, covering the whole down in national legislation, the EC and international human rights conventions and standards. ut catalogue of human rights as laid out in the EU Charter. The scope of the FRA mandate is a subect of what about the role of the EU in monitoring the human rights situation in ember tates more broadly continuous debate – among EU parliamentarians, national policy makers, scholars, eperts, and civil society (Toggenburg f. van Haersolte and Wiebenga ). This was a core uestion prior to the establishment of the European Union gency for Fundamental ights (F) in . t was debated whether the gency should have a monitoring or, more modestly, an 3. Historical milestones in the era of globalisation advisory role visvis Member States. The debate about the Agency’s mandate provides an illustration of a) Decolonisation and development policies a political and deeply rooted disagreement about the relationship between the EU with regard to the A historical factor of enormous significance globally was the decolonisation of Asia and Africa, which took promotion and protection of human rights in ember tates – a disagreement which has never been put place in the immediate aftermath of WW and the net decades. Following decolonisation, new forms of to rest. In the end, FRA was given an advisory role, mandated ‘to provide evidencebased advice on a wide interactions between Western and nonWestern countries emerged. The evolution of development range of fundamental rights, in line with the EU Charter of Fundamental Rights’ (van Haersolte and policies was of maor historical importance to establishing a new rapport (roberg ). iebenga 13 13).3 The development policies of the EU (and its forerunners) are historic milestones in the evolution of the n the basis of its mandate, F aims at supporting ember tates in their protection and promotion of EU’s external human rights policies. In the formative period of the EEC in the 1950s and 1960s human human rights, as stated in its overall vision rights did not play a significant role in its policies visvis colonies and ecolonies, although occasionally The European Union (EU) ember tates have a long tradition of safeguarding fundamental touched upon (Williams ). rights. The EU itself is built on these values and is committed to guaranteeing the rights This situation changed in the period from the s to . In this period human rights became part of proclaimed in the Charter of Fundamental ights of the European Union. The European Union the development policies of the Community. The four om Conventions (om II) are important gency for Fundamental ights (F) was set up as an independent body to support this landmarks in the Community’s integration of human rights in its development policy in this period (the endeavour. Conventions were signed in , , , and respectively) (Williams ). espite this heritage, many challenges prevent the delivery in practice of fundamental rights. In the postCold War period, with the Maastricht Treaty and the Cotonou Agreement as maor markers, Through the collection and analysis of data in the EU, the F assists EU institutions and EU human rights came to play an essential part of the development policies of the EU (Williams ). ember tates in understanding and tacling these challenges. oring in partnership with the Today, ‘all trade and cooperation agreements with third countries contain a clause stipulating that human EU institutions, the EU ember tates and other organisations at the international, European and rights are an essential element in relations between the parties’ (see also Chapter .C.). national levels, the F plays an important role in helping to mae fundamental rights a reality for everyone living in the EU. ut the EU human rights policies have epanded far beyond development policies and trade and cooperation agreements. This epansion is the topic of the following section. F wors with thematic areas, formulated in a fiveyear ‘Multiannual Framework’, within which tass are carried out as prescribed in an nnual or rogramme. n addition, the gency each year publishes b) The globalisation of human rights and the EU response an annual report on the situation of human rights in the EU ember tates. n this way F provides the Historically, human rights developed rapidly from the s as a factor on the global scene. ew regional and global structures and instruments (for instance the creation of the U Human Rights Council) were 3 ‘Who we are’ httpfra.europa.euenaboutfrawhoweare. ast accessed 1 une 1. introduced to meet the human rights challenges at a regional and global level. httpfra.europa.euenaboutfundamentalrights. ast accessed 1 une 1. For the fiveyear plan 131, and the institutions involved in determining the plan, see A central aspect of the globalisation of human rights is that the different cultures and religions to a large httpfra.europa.euenaboutfrawhatwedoareasofwormultiannualframewor131. ast accessed ay 1. degree have taken ownership of human rights, thus paving the way for enhanced possibilities of n 13, for instance, the gency carried out a survey on iscrimination and ate Crime against ews in selected implementing human rights locally. The universality of human rights and its different epressions over EU ember tates eperiences and perceptions of antisemitism. httpfra.europa.euenpublication13discriminationandhatecrimeagainstewseumemberstates eperiencesand. ast accessed ay 1. httpeeas.europa.euhumanrightsindeen.htm. ast accessed une .

11 FRAME Deliverable No. 2.1 time as well as human rights as a common global language are described in Chapter II on Cultural and religious factors of this report (II..1.

y embedding its external human rights policies in the context of universal and indivisible human rights inspired by the U, the EU seems well euipped to act as a global human rights player. Thus in its external actions, the EU can embed its human rights policies in a universal human rights context. The fact that the U has always played a large role as a ‘guiding principle’ fits very well into its nonlegally binding documents and guidelines.

rom the 1990s it was clear that the EU would have a comprehensive understanding of its role as a player in the advancement of human rights globally (roberg 01. ccordingly, rt. of TEU states that

In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citiens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United ations Charter.

ollowing the evolution of the role of human rights in EU external relations, instruments and mechanisms have grown proportionally. recent reflection of the prominence of human rights on the EU agenda was the creation of the EU pecial epresentative for uman ights in 01.

With regard to instruments, the extensive ‘toolbox’ developed by the EU to engage with third countries should be noted, among them human rights guidelines, dmarches and declarations, and human rights dialogues.9 The uidelines, for example, are meant as instructions for EU officials (and ember tates in their engagement with third countries, international organisations and civil society. total of 11 uidelines have been adopted by the Council, for instance uidelines on reedom of eligion or elief, and uidelines on TI rights (esbian, ay, isexual, Transgender, Intersex. The EU holds regular dialogues on human rights with third countries, and to this end the EU uidelines on uman ights dialogues have been developed.10

ith the framework of the European External ction ervice (EE, the EU adopts a multifaceted and often progressive approach to its human rights policies. Two examples are illustrative of this. irst, civil society is paid much attention as a human rights actor in third countries, as a vital player in the promotion and protection of human rights in specific contexts (for instance cultural and religious. The EU therefore engages with and supports (including financially local and regional civil society in various ways.

econd, the EU is concerned with facilitating human rights education at various academic levels, endeavouring to create a human rights knowledge base among future academics, civil servants and policy makers, in EU institutions, ember tates and around the globe. oteworthy in this regard are the human

or the different instruments, please consult .1. on mapping of EU uman ights institutions. 9 ee here httpwww.eeas.europa.euhumanrightshowindexen.htm. ast accessed 5 une 01. 10 httpeeas.europa.euhumanrightsdialoguesindexen.htm. ast accessed 1 une 01.

12 FRAME Deliverable No. 2.1 FRAME Deliverable No. 2.1 time as well as human rights as a common global language are described in Chapter II on Cultural and rights master programmes supported by the EU n , the European asters egree in uman ights religious factors of this report (II..1. and emocratisation, E, was established his programme, based in enice and managed by the European nterUniversity entre for uman ights and emocratisation EU involves universities y embedding its external human rights policies in the context of universal and indivisible human rights from all EU countries, and offers an interdisciplinary curriculum that reflects the indivisible lins between inspired by the U, the EU seems well euipped to act as a global human rights player. Thus in its human rights, democracy, peace and development he E has inspired the creation of similar inter external actions, the EU can embed its human rights policies in a universal human rights context. The fact university programmes in human rights and democratisation hus today the EEU and five other that the U has always played a large role as a ‘guiding principle’ fits very well into its nonlegally regional master programmes on five continents carry out their wor, with the support of the EU, under binding documents and guidelines. the auspices of the lobal ampus of aster rogrammes and iplomas in uman ights and rom the 1990s it was clear that the EU would have a comprehensive understanding of its role as a player emocratisation in the advancement of human rights globally (roberg 01. ccordingly, rt. of TEU states that he awareness of the EU of the need to create a harmony between external and internal human rights In its relations with the wider world, the Union shall uphold and promote its values and interests policies can be seen as leading to initiatives lie E – ostering uman ights among European and contribute to the protection of its citiens. It shall contribute to peace, security, the olicies – a largescale collaborative research proect, involving researchers from EU ember tates sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair as well as third countries and maing the coherence between external and internal policies a ey obect trade, eradication of poverty and the protection of human rights, in particular the rights of the for scholarly scrutiny child, as well as to the strict observance and the development of international law, including n sum, the EU has set in motion many substantive initiatives, including instruments, to facilitate the respect for the principles of the United ations Charter. promotion and protection of human rights in a new global world order

ollowing the evolution of the role of human rights in EU external relations, instruments and mechanisms A recent historical factor which may have a hindering influence on the EU’s external human rights policies have grown proportionally. recent reflection of the prominence of human rights on the EU agenda was is the challenged position of the EU on the global scene With the formation of new political andor the creation of the EU pecial epresentative for uman ights in 01. economic alliances – for instance the countries and rganisation of slamic ooperation – the With regard to instruments, the extensive ‘toolbox’ developed by the EU to engage with third countries influence of the EU in the world is challenged n this connection, a particular effect of diverse cultures should be noted, among them human rights guidelines, dmarches and declarations, and human rights having increasingly declared ownership of human rights is that the interpretation of human rights as dialogues.9 The uidelines, for example, are meant as instructions for EU officials (and ember tates in endorsed by the EU and international human rights standards are in some instances substantially their engagement with third countries, international organisations and civil society. total of 11 uestioned or contested by some countries see hapter ssues of coherence and incoherence uidelines have been adopted by the Council, for instance uidelines on reedom of eligion or elief, between EU internal and external human rights policies are among the factors challenging the EU in its and uidelines on TI rights (esbian, ay, isexual, Transgender, Intersex. The EU holds regular actions at the multilateral as well as engagement with third countries at the bilateral level ee also dialogues on human rights with third countries, and to this end the EU uidelines on uman ights hapter c here are positive indications that the EU – in its internal and external affairs and vis dialogues have been developed.10 vis candidate countries – has become aware of the problems of incoherence between internal and external policies, and that it is responding to the call for greater coherence n interesting illustration of ith the framework of the European External ction ervice (EE, the EU adopts a multifaceted and this is the ‘European Parliament resolution of pril on EU foreign policy in a world of cultural and often progressive approach to its human rights policies. Two examples are illustrative of this. irst, civil religious difference’. Here the Parliament faces the issue of coherence head on, namely in a section society is paid much attention as a human rights actor in third countries, as a vital player in the promotion entitled ‘Credibility, coherence and consistency of EU policy’. The European Parliament ‘considers that and protection of human rights in specific contexts (for instance cultural and religious. The EU therefore the effectiveness of EU action rests on its exemplariness and consistency between internal and external engages with and supports (including financially local and regional civil society in various ways. actions’ (26). The resolution proceeds to the issue of cultural and religious diversity (the topic of the resolution, and the Parliament ‘calls on all Member States to repeal any existing laws which contradict econd, the EU is concerned with facilitating human rights education at various academic levels, the fundamental freedom of religion and conscience and freedom of expression’ (27). endeavouring to create a human rights knowledge base among future academics, civil servants and policy makers, in EU institutions, ember tates and around the globe. oteworthy in this regard are the human

13 FRAME Deliverable No. 2.1

D. Conclusions and future perspectives FRA states that ‘The European Union (EU) Member States have a long tradition of safeguarding fundamental rights. The EU itself is built on these values and is committed to guaranteeing the rights proclaimed in the Charter of Fundamental Rights of the European Union’ (see above). As we have seen, however, the human rights proect was not part of the obectives of the institutions preceding the present EU. The EU has historical roots in a construction of which human rights were not an essential part.

The chapter has analysed maor historical landmars in the EU history and discussed the potential in the historical events and circumstances, which to a large degree the EU responded to by facilitating the expansion of the human rights sphere, in its internal as well as external actions. t also demonstrated how historical events and circumstances to some extent had a hindering influence on human rights protection.

The chapter shows that the EU still is a human rights proect in the maing. The EU has been more at ease developing extensive human rights policies with application when engaging with third countries. hen it comes to the EU visvis Member States, the picture is more blurred, and the political debate often mared by EU scepticism caused by Member States’ opposition to extending the competence of the EU in the area of human rights (see also Chapter ...c).

As human rights have increasingly found a place in EU’s internal and external affairs and visvis candidate countries, the relationship between the internal and external policies has drawn the attention of policy maers, officials, academics and civil society and caused widespread criticism, within EU Member States and globally.

History constantly provides new factors enabling or hindering the development of human rights. f the concrete eventshistorical factors which have hindered or facilitated the EU human rights internal policies, an example is the economic and financial crisis starting in 2, globally and within the EU and its Member States (see Chapter .). ther examples are the rise of the extreme right in Europe and the increase of racism (see Chapter ..2.c).

ith law still in the process of being implemented, conventions still to be ratified, the ECH still to be acceded to and charges of too many ambiguities and too much incoherence, the EU today stands at a crossroads in a uniue position to rise above challenges caused in part by its history.

E. Bibliography

1. Legal and policy documents Council of the European Union (22). EU Strategic Framework and Action Plan on Human Rights and Democracy, uxembourg, 2 une 22, 2.

EU Guidelines on the promotion and protection of freedom of religion or belief, oreign Affairs Council meeting, 2 une 2.

European Council in Copenhagen 21-23 June 1993, Conclusions of the Presidency.

14 FRAME Deliverable No. 2.1 FRAME Deliverable No. 2.1

D. Conclusions and future perspectives European Parliament Resolution of 17 April 2014 on EU foreign policy in a world of cultural and religious FRA states that ‘The European Union (EU) Member States have a long tradition of safeguarding differences. (RS). fundamental rights. The EU itself is built on these values and is committed to guaranteeing the rights The EU Charter of Fundamental Rights, . proclaimed in the Charter of Fundamental Rights of the European Union’ (see above). As we have seen, however, the human rights proect was not part of the obectives of the institutions preceding the present The European Convention on Human Rights, . EU. The EU has historical roots in a construction of which human rights were not an essential part. The Treaty of the European Union, . The chapter has analysed maor historical landmars in the EU history and discussed the potential in the historical events and circumstances, which to a large degree the EU responded to by facilitating the The Treaty on the Functioning of the European Union, . expansion of the human rights sphere, in its internal as well as external actions. t also demonstrated how Treaty of Lisbon, Amending the Treaty on European Union and the Treaty Establishing the European historical events and circumstances to some extent had a hindering influence on human rights protection. Community, (C ). The chapter shows that the EU still is a human rights proect in the maing. The EU has been more at ease 2. Case-law developing extensive human rights policies with application when engaging with third countries. hen it Case Nold ECR . comes to the EU visvis Member States, the picture is more blurred, and the political debate often mared by EU scepticism caused by Member States’ opposition to extending the competence of the EU Case Internationale Handelsgesellschaft ECR . in the area of human rights (see also Chapter ...c). Case Stauder ECR . As human rights have increasingly found a place in EU’s internal and external affairs and visvis candidate countries, the relationship between the internal and external policies has drawn the attention of policy 3. Literature maers, officials, academics and civil society and caused widespread criticism, within EU Member States a) Books and globally. artels, . () Human Rights Conditionality In the EU’s International Agreements, xford, ew or xford University ress. History constantly provides new factors enabling or hindering the development of human rights. f the concrete eventshistorical factors which have hindered or facilitated the EU human rights internal policies, offmann, S.. (ed.)() Human Rights in the Twentieth Century, Cambridge Cambridge University an example is the economic and financial crisis starting in 2, globally and within the EU and its Member ress. States (see Chapter .). ther examples are the rise of the extreme right in Europe and the increase of racism (see Chapter ..2.c). . aichand and M. Susi (eds) () 60 Years of the Universal Declaration of Human Rights in Europe, Morsel ntersentia. ith law still in the process of being implemented, conventions still to be ratified, the ECH still to be acceded to and charges of too many ambiguities and too much incoherence, the EU today stands at a eers, S., ervey, T., enner, . , ard, A. () The EU Charter of Fundamental Rights, A Commentary, crossroads in a uniue position to rise above challenges caused in part by its history. xford and ortland, regon art ublishing.

iris, .C. () The Lisbon Treaty. A Legal and Political Analysis, Cambridge Cambridge University ress.

E. Bibliography entura, M. () Dynamic Law and Religion in Europe. Acknowledging Change. Choosing Change, EU oring apers, RSCAS , San omenico di Fiesole, taly European University nstitute. 1. Legal and policy documents Council of the European Union (22). EU Strategic Framework and Action Plan on Human Rights and illiams, A. () EU Human Rights Policies. A study in Irony, xford, ew or xford University ress. Democracy, uxembourg, 2 une 22, 2. b) Book chapters EU Guidelines on the promotion and protection of freedom of religion or belief, oreign Affairs Council Lagoutte, S. and Lassen, E.M. (2008) ‘The role of the State in balancing religious freedom with other human meeting, 2 une 2. rights in a multicultural European context’, in F. Francioni and M. Scheinin (eds), Cultural Human Rights. eiden Martinus ihoff ublishers, pp. . European Council in Copenhagen 21-23 June 1993, Conclusions of the Presidency.

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Lassen, E.M. (2009) ‘Denmark: a document of ideological importance, in . aichand and M. Susi (eds) ears o the Uniersal elaration o Human Rights in Euroe, Morsel ntersentia, pp. – 8.

Rosas, A. (2014) ‘The Charter and Universal Human Rights Instruments’, in Peers, S., Hervey, T., Kenner, ., ard, . he EU Charter o undamental Rights A Commentary, xford and ortland, regon art ublishing, pp. 800.

Rosas, A. (2009) ‘The European Union: in search of legitimacy’, in V. Jaichand and M. Suksi (eds) ears o the Uniersal elaration o Human Rights in Euroe, Morsel ntersentia, pp. – .

Tassinari, F. (2013) ‘The foundation of Europe’s peace’, in ears that hanged Euroe he Coenhagen riteria and the Enlargement o Euroe, openhagen The anish Ministr of Foreign ffairs, pp. 2.

Toggenburg , G.N. (2014) ‘The EU Fundamental Rights Agency and the Fundamental Rights Charter: how fundamental is the link between them?’, in Peers, S., Hervey, T., Kenner, J. , Ward, A. he EU Charter o undamental Rights A Commentary, xford and ortland, regon art ublishing, pp. 2.

an aersolte, . and iebenga, .K. (2013) ‘The role of the European Parliament in the fundamental rights architecture of the European Union’, in van Roosmalen, M., Vermeulen, B., van Hoof, F., Oosting, M. (eds) undamental Rights and riniles ier Amiorum ieter an i ambridge, nterp, ortland ntersentia, pp. .

c) Journal articles enede, . (202) ‘EU Action on Human and Fundamental Rights in 2011’, Euroean earoo on Human Rights , pp. 0.

Broberg, M. (2013) ‘From colonial power to human rights promoter: on the legal regulation of the European Union’s relations with the developing countries’, Camridge Reie o International Aairs 2, , pp. 8.

D’Hollander, D., Marx, A., Wouters, J. (2014) ’Integrating human rights in EU development cooperation policy: achievements and challenges’, Euroean earoo on Human Rights , pp. 228.

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Lassen, E.M. (2009) ‘Denmark: a document of ideological importance, in . aichand and M. Susi (eds) III. Political factors* ears o the Uniersal elaration o Human Rights in Euroe, Morsel ntersentia, pp. – 8. A. Introduction Rosas, A. (2014) ‘The Charter and Universal Human Rights Instruments’, in Peers, S., Hervey, T., Kenner, Human rights are deeply political. They are defined in a political context and by political actors or within ., ard, . he EU Charter o undamental Rights A Commentary, xford and ortland, regon art political institution. They are used as political instruments in political campaigns. The definition of human ublishing, pp. 800. rights norms and standards are political issues and sometimes highly contested (e.g. LGBTI (Lesbian, Gay, Rosas, A. (2009) ‘The European Union: in search of legitimacy’, in V. Jaichand and M. Suksi (eds) ears Bisexual, Transgender and Intersex) rights). They are embedded in a political structure, i.e. States, which o the Uniersal elaration o Human Rights in Euroe, Morsel ntersentia, pp. – . on the one hand are one of the most serious human rights abusers and, on the other hand, have the duty to respect, protect and fulfil human rights. Thus, human rights play an important role not only as or in Tassinari, F. (2013) ‘The foundation of Europe’s peace’, in ears that hanged Euroe he Coenhagen relation to political structures but also in the political process. Human rights are violated, abused, used, riteria and the Enlargement o Euroe, openhagen The anish Ministr of Foreign ffairs, pp. 2. fought for or defended by political actors. This indicates that the political dimensions and aspects of human rights are complex and multilayered. They refer to the nature and architecture of the political Toggenburg , G.N. (2014) ‘The EU Fundamental Rights Agency and the Fundamental Rights Charter: how institutions and structures as well as other basic political concepts such as power, citienship and political fundamental is the link between them?’, in Peers, S., Hervey, T., Kenner, J. , Ward, A. he EU Charter o ideologies. undamental Rights A Commentary, xford and ortland, regon art ublishing, pp. 2. The uestion what are the political factors which enable or hinder the protection of human rights in an aersolte, . and iebenga, .K. (2013) ‘The role of the European Parliament in the fundamental general and concerning the European Union’s (EU) external and internal policies in particular is hard to rights architecture of the European Union’, in van Roosmalen, M., Vermeulen, B., van Hoof, F., Oosting, grasp. Political factors that enable or hinder the protection of human rights involves taking into account M. (eds) undamental Rights and riniles ier Amiorum ieter an i ambridge, nterp, several political dimensions: ortland ntersentia, pp. . Political activity and processes of political action (politics), which include a broad range of activities such c) Journal articles as political negotiations about human rights standards, human rights activism such as those of non enede, . (202) ‘EU Action on Human and Fundamental Rights in 2011’, Euroean earoo on Human governmental organisations (NGOs) or diverse forms of cooperation within and outside of established Rights , pp. 0. political structures. Addressing the uestion of political factors that enable or hinder the protection of Broberg, M. (2013) ‘From colonial power to human rights promoter: on the legal regulation of the human rights in this context involves, for example, analysing power relations between actors or taking European Union’s relations with the developing countries’, Camridge Reie o International Aairs 2, into consideration the inclusiveness or exclusiveness of processes of participation in the political realm , pp. 8. such as democratic processes.

D’Hollander, D., Marx, A., Wouters, J. (2014) ’Integrating human rights in EU development cooperation Another dimension is the substance or content of political activities. Human rights policies include policy: achievements and challenges’, Euroean earoo on Human Rights , pp. 228. contentious and delicate issues and may contradict other norms and values such as hegemonic ideologies (e.g. nationalism, neoliberalism).

Above all, human rights norms and standards are dependent on adeuate political structures. The polity dimension is significant as it provides the context or framework in which human rights policies and politics are embedded. The most important political entity in this context is the State. State structures may hinder or facilitate human rights policies, they may provide a framework in which human rights are guaranteed or, on the contrary, are systematically violated. Another important structural dimension is the uestion of citienship, which defines the relationship (rights and duties) between the individual and the community (States) and, thus, is uite a powerful instrument, which also determines different degrees of exclusion and inclusion.

 The author of this chapter is Dr. Monika Mayrhofer, Ludwig Boltmann Institute of Human Rights.

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1. Structure and content of the chapter he rears aoe indicate seeral aspects or topics hich are not onl e concepts o political science and discourse ut also are crucial aspects concerning the guarantee and ipleentation o huan rights hese aspects or a crucial diension hen it coes to the uestion o political actors that enale or hinder huan rights

 tates and state soereignt  deologies (ationalis ieralis ocialis etc)  oer  itienship  eocrac

n the olloing chapter each actor ill e discussed in detail starting ith a deinition or a discussion o concepts o each actor and olloed a short analsis on ho this actor enales or hinders huan rights protection in general n conclusion it ill riel e discussed in hat a this actor a enale or hinder huan rights protection in the EU

B. Political factors which enable or hinder the protection of human rights in the EU’s external and internal policies

1. States and state sovereignty

a) Definitions and concepts of State and state sovereignty ‘Modern societies, especially in the twentieth century, have increasingly come to be organized around states guaranteeing to their citiens (rather than suects) as atters o entitleent an extensie arra o ciil, political, economic, social, and cultural goods, services, and opportunities.’ (Donnelly 2003: 59)

uan rights eoled in the context o the oration o the odern tate he to deelopents are deepl interlined he gradual replaceent o a ragented eudal sste an international tate sste as accopanied the deelopent o constitutional tates and the codiication o undaental rights as a asic principle thereo he role o the tate in the context o the huan rights sste is crucial lthough huan rights nors are er oten deeloped and adopted at an international leel it is irst and oreost the tate that is responsile or their ipleentation

he concept o the tate is not onl one o the ost central notions o political discourse and analsis (a and ister ) it is also one o the ost controersial here are an approaches and theories to grasp this concept and its deelopents ne o the ost iportant deinitions hich is still releant toda as coined the political sociologist ax eer e deines the tate as ollos

A compulsory political organization with continuous operations will be called a ‘state’ insofar as its adinistratie sta successull upholds the clais to the onopol o the legitiate use o phsical orce in the enorceent o its order he odern state possesses an adinistratie and legal order suect to change legislation to hich the organied actiities o the

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1. Structure and content of the chapter administrative staff, which are also controlled by regulations, are oriented. his system of orders he rears aoe indicate seeral aspects or topics hich are not onl e concepts o political science claims binding authority, not only over members of the state, the citizens, most of whom have and discourse ut also are crucial aspects concerning the guarantee and ipleentation o huan rights obtained membership by birth, but also to a very large etent over all action taing place in the hese aspects or a crucial diension hen it coes to the uestion o political actors that enale or area of its urisdiction. t is thus a compulsory organization with a territorial basis. urthermore, hinder huan rights today, the use of force is regarded as legitimate only so far as it is either permitted by the state or prescribed by it... he claim of the modern state to monopolize the use of force is as essential  tates and state soereignt to it as its character of compulsory urisdiction and continuous operation. (eber 9: 55,  deologies (ationalis ieralis ocialis etc) uoted after ierson 200: )  oer  itienship ased on this definition, ierson (ierson 200: 2) distinguishes the following features as being  eocrac relevant for defining the tate, several of which have a human rights dimension and will be eplored in this report: n the olloing chapter each actor ill e discussed in detail starting ith a deinition or a discussion o concepts o each actor and olloed a short analsis on ho this actor enales or hinders huan . (Monopoly) control of the means of violence rights protection in general n conclusion it ill riel e discussed in hat a this actor a enale 2. erritoriality or hinder huan rights protection in the EU 3. overeignty . onstitutionality B. Political factors which enable or hinder the protection of human 5. mpersonal power rights in the EU’s external and internal policies . he public bureaucracy . Authoritylegitimacy . itizenship. 1. States and state sovereignty ome of these principles will be discussed in separate chapters below as they represent crucial factors a) Definitions and concepts of State and state sovereignty with regard to hindering or enabling human rights. he principle of sovereignty is probably the factor ‘Modern societies, especially in the twentieth century, have increasingly come to be organized around discussed most in the contet of the implementation of international human rights law. overeignty is the states guaranteeing to their citiens (rather than suects) as atters o entitleent an extensie arra founding principle of the international order since the eace of estphalia in and has an internal as o ciil, political, economic, social, and cultural goods, services, and opportunities.’ (Donnelly 2003: 59) well as an eternal dimension. he latter basically refers to the notion of noninterference in another uan rights eoled in the context o the oration o the odern tate he to deelopents are State’s internal affairs and is also defined as a basic principle by the Charter of the United Nations. The deepl interlined he gradual replaceent o a ragented eudal sste an international tate internal dimension denotes that ‘the classical state sovereign has exclusive authority over a particular sste as accopanied the deelopent o constitutional tates and the codiication o undaental territory, in other words freedom from outside interference’ (Clunan 2009: 7). rights as a asic principle thereo he role o the tate in the context o the huan rights sste is crucial b) How does the State enable or hinder human rights protection? lthough huan rights nors are er oten deeloped and adopted at an international leel it is irst ‘Internationally recognized human rights impose obligations on and are exercised against sovereign and oreost the tate that is responsile or their ipleentation territorial states’ (Donnelly 2003: 34). The State has a broad range of responsibilities when it comes to he concept o the tate is not onl one o the ost central notions o political discourse and analsis (a human rights protection. t has responsibility to respect, protect and fulfil human rights: and ister ) it is also one o the ost controersial here are an approaches and theories to  Under the State’s obligation to respect human rights ‘states have a negative obligation not to tae grasp this concept and its deelopents ne o the ost iportant deinitions hich is still releant any measures that result in a violation of a given right. hey should not consciously violate rights, toda as coined the political sociologist ax eer e deines the tate as ollos either through their organs (for eample, parliament or the eecutive) or through their agents A compulsory political organization with continuous operations will be called a ‘state’ insofar as (such as, civil servants, the policy, or the army)’ (Mégret 2010: 130). its adinistratie sta successull upholds the clais to the onopol o the legitiate use o  he obligation to protect human rights means that tates actively have to ensure that the rights phsical orce in the enorceent o its order he odern state possesses an adinistratie of individuals are not violated by third parties. and legal order suect to change legislation to hich the organied actiities o the

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 The State has the further obligation to fulfil human rights, ‘by which it is understood that states should proactively engage in activities that have as a consequence the greater enjoyment of rights’ (Ibid.: 131).

In the following, the most crucial points are outlined with regard to the State as an enabling or hindering factor of human rights:

In order to meet their obligations to respect, protect and fulfil human rights States have to develop capacities and set up structures, invest financial resources, educate personnel and develop institutions capable to carry out these tass. Thus, adeuately respecting, protecting and fulfilling human rights is demanding for a State. There are several challenges which might limit a government’s ability to meet its obligations including a lac of financial resources, inadeuate commitment of political leadership, inadeuate capacities and commitment of governmental personnel, inconsistent, misinterpreted and flawed laws, paucity of affordable legal services or a lac of nowledge about successful human rights activities and strategies (olub 2003: 17).

There is generally a tension between State sovereignty and implementation of international human rights norms: ‘The principle and practice of state sovereignty are, therefore, strong barriers to the implementation of international humanrights standards’ (Freeman 2002: 132). In its internal dimension, sovereignty hierarchically defines the relationship between the individual and the State. The State wields authority over its citizens through its administrative and executive powers. This maes the State prone to being a human rights abuser itself which creates tensions to fulfil its crucial role concerning human rights protection. In addition, the external dimension of sovereignty with its basic principle of noninterference in the domestic affairs of other States maes it harder to prevent and pursue human rights obligations of States. International human rights protection is therefore dependent on the voluntary cooperation of States to commit themselves to international human rights norms and institutions. ‘Human rights are seen as a critical challenge to state sovereignty, as they challenge its central premise of the State as the ultimate legal and political authority in world politics’ (Clunan 2009: 7).

The principle of State sovereignty in international relations, however, still poses challenges to address human rights uestions in international politics as the means and functioning of the international realm is fundamentally different from the functioning of a State. The rules adopted are very often soft law and benign measures of international cooperation, very often largely symbolic (Donnelly 2003: 1). urthermore, there is often a tradeoff between human rights and other national interests. uman rights policies are very often subordinated to security as well as economic interests (Ibid.). This has consequences for the protection of the rights of the individual: ‘State interests rather than personal rights often prevail, interpersonal euality often gives way to disrespect for – if not hatred of – “others,” violent conflict is persistent, and weak international institutions are easily demonstrated’ (Forsythe 2003: 217).

In the context of globalisation, States are altering their structures, functions and traditional tass. New actors such as international companies or regional cooperation and integration of States (e.g. the U) are increasingly gaining importance and pose a challenge to the ‘traditional’ role of the State concerning the protection of human rights.

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 The State has the further obligation to fulfil human rights, ‘by which it is understood that states c) How does the State enable or hinder human rights protection in should proactively engage in activities that have as a consequence the greater enjoyment of rights’ the EU – gaps and challenges (Ibid.: 131). The question as to what kind of political structure and entity we are dealing with when it comes to the uropean nion has puled political scientists for quite a while. It is hard to grasp this development with In the following, the most crucial points are outlined with regard to the State as an enabling or hindering conventional terms used in political science as the seems to be more than an international organisation factor of human rights: but less than a traditional State. Thus, to address the question of how the State enables or hinders human rights protection in the two dimensions are of importance. In order to meet their obligations to respect, protect and fulfil human rights States have to develop capacities and set up structures, invest financial resources, educate personnel and develop institutions The first dimension concerns the position of the ember States within the structural position and power capable to carry out these tass. Thus, adeuately respecting, protecting and fulfilling human rights is relation of the . integration theories (theories which aim at grasping the dynamics and structures of demanding for a State. There are several challenges which might limit a government’s ability to meet its uropean integration) provide different answers to this question. Some assume that the ember States obligations including a lac of financial resources, inadeuate commitment of political leadership, are still the most important players in this contet (liberal intergovernmentalism, see e.g. oravcsik and inadeuate capacities and commitment of governmental personnel, inconsistent, misinterpreted and Schimmelfennig 2009) while others – e.g. advocates of multilevel governance theories – argue that States flawed laws, paucity of affordable legal services or a lac of nowledge about successful human rights have to share decision making powers with other levelsactors (such as institutions, s etc. see e.g. activities and strategies (olub 2003: 17). Hooghe and arks 2001 eters and ierre 2009 iener and ie 2009). In reference to human rights protection, Member States remain a decisive force in the EU framework ‘despite the regular invocation There is generally a tension between State sovereignty and implementation of international human rights of human rights in official discourse and documents, there is a great reluctance to specify any clear role norms: ‘The principle and practice of state sovereignty are, therefore, strong barriers to the for the EU in relation to the action of Member States as far as human rights compliance is concerned’ (de implementation of international humanrights standards’ (Freeman 2002: 132). In its internal dimension, rca 2011: ). sovereignty hierarchically defines the relationship between the individual and the State. The State wields authority over its citizens through its administrative and executive powers. This maes the State prone to evertheless, the has made significant efforts to strengthen its human rights dimension (through the being a human rights abuser itself which creates tensions to fulfil its crucial role concerning human rights Treaty of isbon). ot least because of its nondiscrimination law, the EU ‘has developed into the regional protection. In addition, the external dimension of sovereignty with its basic principle of noninterference authority on social rights, overtaking some of the earlier work on the Council of urope in importance as in the domestic affairs of other States maes it harder to prevent and pursue human rights obligations of the Community’s rights are enforceable’ (Smith 2012: 116). The adoption of the Charter of Fundamental States. International human rights protection is therefore dependent on the voluntary cooperation of ights of the uropean nion (CF) and the envisaged accession of the to the uropean Convention States to commit themselves to international human rights norms and institutions. ‘Human rights are seen on Human ights (CH) are further favourable developments in regard to enhancing a comprehensive as a critical challenge to state sovereignty, as they challenge its central premise of the State as the ultimate uropean human rights protection system, although the limited scope of application of CF has to be legal and political authority in world politics’ (Clunan 2009: 7). stressed in this contet. rinne de rca argues that the formal constitutional framework is limited and any legal and constitutional discussion of human rights issues is ‘accompanied by assertions on the part The principle of State sovereignty in international relations, however, still poses challenges to address of the Council and the ember States of the limited competences of the , and a narrow view is taken human rights uestions in international politics as the means and functioning of the international realm of the legitimate scope of human right law and policy within the EU’ (de Búrca 2011: 491). Yet, this is often is fundamentally different from the functioning of a State. The rules adopted are very often soft law and inconsistent with the evolving human rights practices of uropean governance such as the anti benign measures of international cooperation, very often largely symbolic (Donnelly 2003: 1). discrimination regime, the activities of the uropean Commission or the Fundamental ights gency (de urthermore, there is often a tradeoff between human rights and other national interests. uman rights rca 2011: 9). policies are very often subordinated to security as well as economic interests (Ibid.). This has consequences for the protection of the rights of the individual: ‘State interests rather than personal rights The second dimension concerns the shape and configuration of the as an actor. This includes issues often prevail, interpersonal euality often gives way to disrespect for – if not hatred of – “others,” violent such as the institutional setup of the and the question whether the is an international organisation conflict is persistent, and weak international institutions are easily demonstrated’ (Forsythe 2003: 217). or a supranational organisation which might act in some situations as a State. Since the entering into force of the isbon Treaty the has significantly strengthened its institutional and legal human rights In the context of globalisation, States are altering their structures, functions and traditional tass. New framework by e.g. making the Charter of Fundamental ights legally binding on institutions as well actors such as international companies or regional cooperation and integration of States (e.g. the U) are as Member States and by establishing a European External Action Service (EEAS). Yet, the ‘EU’s very design increasingly gaining importance and pose a challenge to the ‘traditional’ role of the State concerning the reveals its limited capability as a human rights organisation. The Charter of Fundamental ights does not protection of human rights. declare a freestanding fundamental rights competence for the but only applies to institutions and

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21 RAE elierale o to the Member States in certain circumstances’ (DouglasScott 2011: 60 see also Chapter .C.1).12 ouglasScott further points out that that in the wake of the isbon Treaty not the human rights protection itself but its complexity has increased and that objective is not primarily the ‘development of a coherent substantive fundamental rights law’ (Ibid.).

Concerning the relation between the internal and external dimension of EU human rights protection the ‘major emphasis of the EU’s constitutional regime of human rights protection today (…) is externally focused, setting up a distinct difference between external and internal policies’ (De Búrca 2011: 491). Further weaknesses of the EU human rights framework are the incoherence of the institutional and legal framework, the failure to address a range of important human rights issues, a lack of coherently taking human rights into consideration in all EU policy fields and ‘lack of political will to make full use of the different instruments in the tool box of the EU human rights policy’ (Theuermann 2013: 33). In addition, a lack of consistency and transparency concerning human rights is said to undermine ‘the Union’s legitimacy and will eventually have a negative impact on its normative power, both internally visvis its member states and even more so towards third states’ (Kinzelbach and Kozma 2009: 617).

deologies

n everyday language, ideologies have a negative connotation. They are associated with the notion of false beliefs, deceit or manipulation. The term ideology is fuy and hard to grasp. Andrew eywood lists in his book olitial Ideologies several meanings that have been attached to ideology, such as a political belief system, an actionorientated set of political ideas, the ideas of the ruling class, the worldview of a particular social class or social group, political ideas that embody or articulate class or social interests, ideas that propagate false consciousness amongst the exploited or oppressed, ideas that situate the individual within a social context and generate a sense of collective belonging, an officially sanctioned set of ideas used to legitimise a political system or regime, an allembracing political doctrine that claims a monopoly of truth or an abstract and highly systematic set of political ideals (eywood 200: 6).

Basically, it is important to distinguish between ideology as a political doctrine and ideology as a concept of political analysis. The first refers to the idea of ideology as a worldview or political beliefs that influences political motives, political action and processes, the second labels a scientific concept used to guide political analysis. This differentiation roughly correspondents with Chiapello’s distinction between ideology in a Marxist sense of the term and ideology in the culturalist sense of the term (Chiapello 200: 119). Marxist conception of ideology was very influential and referred to the ideas of the ruling class in order to gain influence over the society (Marx and Engels 146).

Since the 1960s, the concept of ideology has been used in a more neutral and ‘objective’ way:

12 See Charter of Fundamental Rights of the European Union, Art. 51: ’1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers. 2. This Charter does not establish any new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.’

22 RAE elierale o RAE elierale o to the Member States in certain circumstances’ (DouglasScott 2011: 60 see also Chapter .C.1).12 Ideologies are rather complex belief systems that people use to interpret their environment, ouglasScott further points out that that in the wake of the isbon Treaty not the human rights protection physical or social, and to define their response and behavior. olitical ideologies deal with social itself but its complexity has increased and that objective is not primarily the ‘development of a coherent relations related to power. They embody values and ideals, and as systems, they establish logical substantive fundamental rights law’ (Ibid.). connections among ideals, justify structures, and prescribe the essentials of good life and governance. (...) and since ideologies usually promise a better state of affairs and a vision of Concerning the relation between the internal and external dimension of EU human rights protection the change, political leaders and social movements develop and utilize ideologies to mobilize people. ‘major emphasis of the EU’s constitutional regime of human rights protection today (…) is externally (Arat 200: 907) focused, setting up a distinct difference between external and internal policies’ (De Búrca 2011: 491). Further weaknesses of the EU human rights framework are the incoherence of the institutional and legal framework, the failure to address a range of important human rights issues, a lack of coherently taking Ideologies have influenced the development of human rights to a great extent and, in so doing, have also human rights into consideration in all EU policy fields and ‘lack of political will to make full use of the enabled and enhanced specific meanings and hindered or disabled others. The following influences were different instruments in the tool box of the EU human rights policy’ (Theuermann 2013: 33). In addition, decisive for the development of human rights norms: a lack of consistency and transparency concerning human rights is said to undermine ‘the Union’s The evolution of human rights are deeply linked to the decline of the medieval feudal system and the legitimacy and will eventually have a negative impact on its normative power, both internally visvis its emergence of the modern nation State embedded in an international State system. A crucial Influence in member states and even more so towards third states’ (Kinzelbach and Kozma 2009: 617). this process was the liberal body of thought (e.g. ohn ocke, Thomas obbes). This primacy of liberalism deologies in the development of human rights resulted in the establishment of the socalled first generation of rights, which include first and foremost civil and political rights (Ishay 200: 63116). ‘The international law of human rights is based on liberalism,’ (Forsythe 2003: 217) they have an individual focus, they are n everyday language, ideologies have a negative connotation. They are associated with the notion of false based on the norm of an independent liberal subject (see e.g. Kapur 2006) and, compared to the other beliefs, deceit or manipulation. The term ideology is fuy and hard to grasp. Andrew eywood lists in his generations of rights, they are wellprotected and institutionalised. book olitial Ideologies several meanings that have been attached to ideology, such as a political belief system, an actionorientated set of political ideas, the ideas of the ruling class, the worldview of a The liberal focus is very often criticised as limiting the human rights project. utua delineates these particular social class or social group, political ideas that embody or articulate class or social interests, limitations as follows: human rights are characterised by ‘indeterminacy, elasticity and the doubleedged ideas that propagate false consciousness amongst the exploited or oppressed, ideas that situate the nature of the rights discourse’ (Mutua 2008: 1028) which fails to address a deeply unjust society and is individual within a social context and generate a sense of collective belonging, an officially sanctioned set open to misuse further the focus on individualism is not able to capture the realities in regions where of ideas used to legitimise a political system or regime, an allembracing political doctrine that claims a communities and groups are the central units of the society the liberal bias towards civil and political monopoly of truth or an abstract and highly systematic set of political ideals (eywood 200: 6). rights neglects to adeuately take into consideration the importance of social and economic rights which seriously impedes the human rights of many. Kapur has further stressed that the liberal subject of human Basically, it is important to distinguish between ideology as a political doctrine and ideology as a concept rights correlates with the ‘assumptions about the “Other”, who needs to be cabined or contained lest she of political analysis. The first refers to the idea of ideology as a worldview or political beliefs that influences destabilises or undermines this subject’ (Kapur 2006: 666). political motives, political action and processes, the second labels a scientific concept used to guide political analysis. This differentiation roughly correspondents with Chiapello’s distinction between The focus of the liberal tradition on civil and political rights13 was challenged by the socialist movement. ideology in a Marxist sense of the term and ideology in the culturalist sense of the term (Chiapello 200: Karl arx not only called for political but first and foremost stressed the necessity of economic 119). Marxist conception of ideology was very influential and referred to the ideas of the ruling class emancipation (Ishay 200: 130131). A very strong wing of the socialist movement were socialist feminists in order to gain influence over the society (Marx and Engels 146). who not only demanded universal suffrage but also called attention to the (gendered) economic foundation of industrialised society which undermines the claims of liberal rights. In general, socialist Since the 1960s, the concept of ideology has been used in a more neutral and ‘objective’ way:

12 See Charter of Fundamental Rights of the European Union, Art. 51: ’1. The provisions of this Charter are addressed 13 It has to be noted that this early demand for rights for all did not mean that all individuals were included in this to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States project. In the contrary, the notion of euality was restricted to a certain group of the society. Ishay emphasises that only when they are implementing Union law. They shall therefore respect the rights, observe the principles and “the Enlightenment offered all white men the option to become voting members of society should they acquire promote the application thereof in accordance with their respective powers. 2. This Charter does not establish any enough property, earn a sufficient income, and pay adequate tax.” (Ishay 2008: 135) In reality, this meant the new power or task for the Community or the Union, or modify powers and tasks defined by the Treaties.’ exclusion of a wide proportion of the population (i.e. the poor, women).

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mobiliation in pursuit of political rights was directly lined to activism on behalf of economic and social rights. ocial welfare for the poor would no longer be left to whimsical, charitable impulses at the margins of a maretdriven distribution of wealth, but would now be demanded as a right by a woringclass electorate. (Ishay 2008: 160)

ationalism and racism have seriously challenged and also undermined the institutionalisation and implementation of human rights. annah rendt analysed the negative impact of nationalism on the protection of human rights of refugees, stateless persons and minorities. She stressed that as soon as ‘the transformation of the tate from an instrument of the law into an instrument of the nation had been completed; the nation had conquered the State, national interest had priority over law’ (Arendt 1973: 275). ationalist tendencies further hamper the institutionalisation of effective international human rights protection system. owever, on a more positive note, in the context of postcolonial developments it is also argued that it has led to the evolution of the collective right to national selfdetermination.

istorically, racism has had a serious impact on the realisation of human rights by excluding the racialised ‘Other’ from the human rights project. Critics argue that racism in the context of human rights still is deeply embedded in human rights language and continues to produce racial stereotypes (see e.g. Kapur 2006 or Mutua 2001).

There is also a strand of discussion that conceptualises human rights as an ideology by itself. ehra F. Kabasaal rat argues that human rights show all four components which qualify for an ideology: diagnosis, prognosis, rationale and strategy and, thus, that

the international conceptualiation of human rights has emerged as an ideology that encompasses an emancipatory potential, which is instinctively attractive to subjugate people, yet unrecognied by some of its most vocal advocates in academia and international organiations. (rat 2008: 07)

he further points out that ideologies are complex and multidimensional and closely connected to power relations in reference to their position on the tate, on property and on discrimination (rat 2008: 10).

– lthough there is little academic discussion and research on how ideologies enable or hinder human rights protection in the E, the dimensions discussed above are also of importance in the context of human rights protection in the E.

The E has made a serious effort to introduce a comprehensive human rights system. ot least because of its nondiscrimination law, the EU ‘has a strong enforceable system of securing social rights and regulating the rights of workers in the labour market’ (Smith 2012: 116). The accession to the ECHR or the adoption of FE not only codifies civil and political rights but also social, economic and cultural rights. owever, despite the fact that the E has moved away from being a mere economic organisation concentrating on the completion of an internal maret towards a multilevel system, which goes beyond the narrow economic focus, the main focus still is on the economic sector. Hermann argues ‘that the

24 RAE elierale o RAE elierale o mobiliation in pursuit of political rights was directly lined to activism on behalf of economic and European integration process was used to adopt mainstream neoliberal policies and thereby circumvent social rights. ocial welfare for the poor would no longer be left to whimsical, charitable impulses at and erode those state traditions and national compromises that, in the past, gave Europe its the margins of a maretdriven distribution of wealth, but would now be demanded as a right by a distinctiveness compared to other countries’ (Hermann 2007: 61). By ‘traditions’ Hermann refers to a woringclass electorate. (Ishay 2008: 160) broad range of social rights of the welfare state. This development is associated with a broad range of changes that are hindering human rights protection: increasing poverty, dismantling of the welfare state, ationalism and racism have seriously challenged and also undermined the institutionalisation and a concentration on workfare policies or a growing gap between poor and rich. Thus, the neoliberal implementation of human rights. annah rendt analysed the negative impact of nationalism on the economic values shows serious limitations for the implementation but also for the adjudication of human protection of human rights of refugees, stateless persons and minorities. She stressed that as soon as ‘the rights by the European Court of ustice (EC). transformation of the tate from an instrument of the law into an instrument of the nation had been completed; the nation had conquered the State, national interest had priority over law’ (Arendt 1973: The difficulty lies in the ideological position upon which the EC bases its reasoning whereby market 275). ationalist tendencies further hamper the institutionalisation of effective international human considerations take prominence. The influence of free market thinking on the promotion and rights protection system. owever, on a more positive note, in the context of postcolonial developments protection of human rights has been subject to a number of studies and the threats it poses to human it is also argued that it has led to the evolution of the collective right to national selfdetermination. rights have been clearly laid out. (urchill 2011: 23)

istorically, racism has had a serious impact on the realisation of human rights by excluding the racialised Also concerning external relations, neoliberal concepts seem to outshine normative considerations, as ‘Other’ from the human rights project. Critics argue that racism in the context of human rights still is Farrell has argued in the context of the Cotonou Agreement. She has demonstrated ‘that the rhetoric on deeply embedded in human rights language and continues to produce racial stereotypes (see e.g. Kapur partnership reflects less a normative agenda than a trenchant pursuit of what are really neo–liberal goals 2006 or Mutua 2001). and the extension of economic liberalisation in the interests of the EU’ (Farrell 2005: 276).

There is also a strand of discussion that conceptualises human rights as an ideology by itself. ehra F. ationalist influences can seriously impede the EU human rights project, as political developments in Kabasaal rat argues that human rights show all four components which qualify for an ideology: many ember States have demonstrated (e.g. Austria, rance, Hungary, reece and the United ingdom). diagnosis, prognosis, rationale and strategy and, thus, that They not only lead to the rejection or questioning of human rights instruments but may also have the consequence that issues that need a European solution such as the regulation of migration or asylum are the international conceptualiation of human rights has emerged as an ideology that not adequately addressed. Carrera and Wiesbrock (2009) have demonstrated with the example of ‘civic encompasses an emancipatory potential, which is instinctively attractive to subjugate people, yet integration’ programmes and tests for thirdcountry nationals (TC) that the EU ramework on unrecognied by some of its most vocal advocates in academia and international organiations. Integration has led to ‘a profound change in the traditional understandings of the integration of TCs in (rat 2008: 07) EC law and policy, which now allow room for nationalism to play a role when determining the allocation he further points out that ideologies are complex and multidimensional and closely connected to power of EU rights and freedoms to TCNs’ (Carrera and Wiesbrock 2009: 6). The result is that the focus has moved relations in reference to their position on the tate, on property and on discrimination (rat 2008: 10). away from TCNs’ ‘social inclusion, security of residence and access to rights to seeing integration as an instrument of a restrictive immigration policy, in the form of conditions in immigration law for having access to a visa or a residence permit’ (Ibid.: 3839). – lthough there is little academic discussion and research on how ideologies enable or hinder human rights oer protection in the E, the dimensions discussed above are also of importance in the context of human rights protection in the E. The definition of power is elusive, yet one of the most important concepts in political science. There are The E has made a serious effort to introduce a comprehensive human rights system. ot least because several dimensions of power which were discussed under the heading of the ‘faces’ of power. The first of its nondiscrimination law, the EU ‘has a strong enforceable system of securing social rights and three faces are based on the assumption, ‘that power is a relation and that it is a relation among people’ regulating the rights of workers in the labour market’ (Smith 2012: 116). The accession to the ECHR or the (ahl 197: 203). Concerning the first face of power, the actors in a power relation are defined as adoption of FE not only codifies civil and political rights but also social, economic and cultural rights. ‘individuals, groups, roles, offices, governments, nationstates, or other human aggregates’ (Ibid.) that owever, despite the fact that the E has moved away from being a mere economic organisation have a certain source, means, amount or scope of power. The simple formula of this dimension is that a concentrating on the completion of an internal maret towards a multilevel system, which goes beyond certain actor A has power over a certain actor . achrach and arat challenged this notion (second face) the narrow economic focus, the main focus still is on the economic sector. Hermann argues ‘that the by claiming that it is not only important who has power over the action of another person but also who

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25 RAE elierale o can influence the decisionmaking process concerning the issues which are selected as being important to be put on the agenda.

The distinction between important and unimportant issues, we believe, cannot be made intelligently in the absence of an analysis of the ‘mobilization of bias’ in the community; of the dominant values and the political myths, rituals, and institutions which tend to favor the vested interests of one or more groups, relative to other (Bachrach and Barat, 1962, 950).

The third face of power was introduced by Steven ukes who insisted that power is not only about making or preventing someone to do something but also about succeeding in shaping the preferences of others:

(…) is it not the supreme and most insidious exercise of power to prevent people, to whatever degree, from having grievances by shaping their perceptions, cognitions and preferences in such a way that they accept their role in the existing order of things, either because they can see or imagine no alternative to it, or because they see it as natural and unchangeable, or because they value it as divinely ordained and beneficial To assume that the absence of grievance equals genuine consensus is simply to rule out the possibility of false or manipulated consensus by definitional fiat’ (Lukes 2005: 28).

The socalled fourth face of power was developed on basis of Michel Foucault’s conceptualisation of power and discourse. It assumes that power is not in possession of certain individuals. ather

in human relations (…) power is always present (…) these relationships of power are changeable relations, i.e., they can modify themselves, they are not given once and for all (…). The thought that there could be a state of communication which would be such that the games of truth could circulate freely without obstacles, without constraint and without coercive effects, seems to me to be utopian. It is being blind to the fact that relations of power are not something bad in themselves, from which one must free one’s self. I don’t believe there can be a society without relations of power (Foucault 1987: 129).

ertus distinguishes between two ways in which power is interlinked with human rights: power over versus power with:

 ‘The “power over” scenario captures the direct and indirect ways in which States bind themselves to international human rights norms and compete with one another as human rights friend or foe. The traditional ‘power over’ tactic is also employed by NGOs with their strategy of ‘naming, blaming, and shaming’ to promote human rights’ (Mertus 2010: 92).

 ‘”Power with” approaches replace competition with coordination, and focus on creating networks for information exchange, solidarity, and encouragement. (…) Also known as ‘social empowerment’, ‘power with’ uses a vision of equality and selfknowledge to advance civil, political, economic, social and cultural rights’ (Mertus 2010: 93).

In addition, power relations are apparent in the human rights framework in several dimensions:

26 RAE elierale o RAE elierale o can influence the decisionmaking process concerning the issues which are selected as being important Power relations influence the formulation and standardsetting of human rights. They determine who has to be put on the agenda. influence and whose interests are represented. Human rights declarations, for instance, are ‘always a political outcome, a compromise, or a diplomatic resolution of competing interests’ (Langlois 2009: 23). The distinction between important and unimportant issues, we believe, cannot be made hich norms are prevailing in human rights standards therefore is the result of power practice. Feminists, intelligently in the absence of an analysis of the ‘mobilization of bias’ in the community; of the for example, have criticised the implicit androcentrism of human rights, in the sense that human rights dominant values and the political myths, rituals, and institutions which tend to favor the vested are based on specific norms and values which mostly correspond to the experience of men (see e.g. tark interests of one or more groups, relative to other (Bachrach and Barat, 1962, 950). 2000: 3233 and eilly 2009).

The third face of power was introduced by Steven ukes who insisted that power is not only about making ifferent forms of power are apparent in human rights mechanisms and struggles. Thus, power in this or preventing someone to do something but also about succeeding in shaping the preferences of others: sense is operative in the context of the interaction of human rights actors such as tates, NGOs, human (…) is it not the supreme and most insidious exercise of power to prevent people, to whatever rights defenders or individuals. Ishay notes ‘that a universal human rights agenda insensitive to existing degree, from having grievances by shaping their perceptions, cognitions and preferences in such power relations may serve as a tool with which to mask the particular national interests of powerful a way that they accept their role in the existing order of things, either because they can see or countries’ (Ishay 2008: 11). However, power in this context has not only a repressive aspect, such as more imagine no alternative to it, or because they see it as natural and unchangeable, or because they powerful actors repressing other States or individuals, it also refers to the idea ‘that rights empower value it as divinely ordained and beneficial To assume that the absence of grievance equals rightsholders. Power is a social relation, and legitimate power is restrained by rules that protect the rights genuine consensus is simply to rule out the possibility of false or manipulated consensus by of others’ (Freeman 2002: 74). definitional fiat’ (Lukes 2005: 28). Human rights can be seen as a powerful concept in itself. By drawing from Foucault’s notion of power The socalled fourth face of power was developed on basis of Michel Foucault’s conceptualisation of Manokah (2009) conceptualises the human rights based on the notion of discourse which is closely power and discourse. It assumes that power is not in possession of certain individuals. ather interlinked with a conception of power that reects the idea that power is possessed by actors. In contrast, it emphasises the discursive structure of human rights that ‘”produces” behaviour that is in conformity in human relations (…) power is always present (…) these relationships of power are changeable with the dominant standard of normality or acceptability’ (Manokah 2009: 430). relations, i.e., they can modify themselves, they are not given once and for all (…). The thought that there could be a state of communication which would be such that the games of truth could circulate freely without obstacles, without constraint and without coercive effects, seems to me – The role of power in the context of human rights protection and policies are so far scarcely covered by to be utopian. It is being blind to the fact that relations of power are not something bad in scientific literature, except the discussion on the as a normative power in international politics (see themselves, from which one must free one’s self. I don’t believe there can be a society without below). The following aspects are possible entry points for discussing the role of power with regard to relations of power (Foucault 1987: 129). enabling or hindering human rights protection in the . ertus distinguishes between two ways in which power is interlinked with human rights: power over As the institutional and legal human rights framework of the is quite unique a starting point for versus power with: analysing the role of power might focus on the question which institutions, tates, bodies, actors, interest groups, NGOs are influencing – i.e. enabling or hindering – the human rights discourse in what way. The  ‘The “power over” scenario captures the direct and indirect ways in which States bind themselves discussion on the adoption of a new nondiscrimination directive demonstrates the power of different to international human rights norms and compete with one another as human rights friend or foe. actors in human rights matters. On 2 uly 2008, the uropean ommission proposed a draft of a new The traditional ‘power over’ tactic is also employed by NGOs with their strategy of ‘naming, directive prohibiting discrimination on grounds of religion or belief, disability age or sexual orientation blaming, and shaming’ to promote human rights’ (Mertus 2010: 92). beyond the workplace. The uropean Parliament supported the proposal on 2 April 2009 (see uropean Parliament 2009). p to now, the ouncil has refused the adoption of the directive and, thus, prevented  ‘”Power with” approaches replace competition with coordination, and focus on creating networks the adoption and implementation of a more comprehensive nondiscrimination law. for information exchange, solidarity, and encouragement. (…) Also known as ‘social empowerment’, ‘power with’ uses a vision of equality and selfknowledge to advance civil, losely related with the above, it is important to focus on the exclusionary patterns of the human political, economic, social and cultural rights’ (Mertus 2010: 93). rights system or in particular the questions about who are the key political agents and whose human rights interests are marginalised in the political process of the concerning human rights policies. It matters In addition, power relations are apparent in the human rights framework in several dimensions:

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27 RAE elierale o which actors have a say concerning the human rights standard setting and who is included in expert groups. For example the HM, the Human ights orking roup under the ouncil of the uropean nion, is composed of irectors for Human ights and delegates from Member States, the ommission and the S (see heuermann 2012: 18), which means there are no representatives of s included in the orking roup who might have alternative views on human rights matter.

nother point of interest which provides insight into the enabling and hindering power factors concerning human rights policies relates to the analysis of which topics appear on the human rights agenda in what way. For example, efforts to tackle discrimination on grounds of gender were first introduced in 197 when the uropean conomic ommunity () was founded by the reaty establishing the uropean conomic ommunity (). he introduced the principle of eual remuneration for eual work between male and female workers in order to remove the obstacles to the free movement of persons, goods, services and capital and realise a common market. his economic impetus however hindered the realisation of a more comprehensive nondiscrimination policy for a very long time. lthough political structures have provided an opportunity to enhance gender policy to a very large extent they have also powerfully influenced gender relations – to the disadvantage of women. For example, ‘the language in EU texts has shifted from one of “sharing” family responsibilities to one of “reconciling” work and family. his shift has served to legitimie the flexibiliation of labour relations, create a secondary feminized labour market and leave unchanged the distribution of unpaid labour in the family’ (Locher and rgl 2009: 187 see also Stratigaki 2004).

In reference to EU’s external relations it is important to take into consideration how human rights are conceptualised in EU’s external relations and in what way they interact with other interests. There is a considerable debate on the role of the EU as a ‘normative power’ (Bickerton 2011; Manners 2002; Scheipers and Sicurelli 2007 Sursen 200). he concept of the as a normative power was coined to a large extent by Ian Manners who suggested

that not only is the constructed on a normative basis, but importantly that this predisposes it to act in a normative way in world politics. (…) the EU can be onetualied as a changer of norms in the international system a positivist uantity to it – that the ats to change norms in the international system and a normative uality to it – that the should act to extend its norms into the international system (Manners 2002: 22).

Human rights are an important part of the norms, the is based on and is extending into the international system. However, it has also been argued that the EU’s normative power is repeatedly limited by economic and national interests of the Member States (e.g. Bickerton 2011 rickson 2013 Hyderice 200).

he further lost influence at the UN concerning human rights issues: ‘Europe has lost ground because of a reluctance to use its leverage, and a tendency to look inwards (…) rather than talk to others. It is also weakened by a failure to address flaws in its reputation as a leader on human rights and multilateralism’ (owan and Brantner 2008: 1).

28 RAE elierale o RAE elierale o which actors have a say concerning the human rights standard setting and who is included in expert itienship groups. For example the HM, the Human ights orking roup under the ouncil of the uropean nion, is composed of irectors for Human ights and delegates from Member States, the ommission In general, citizenship is about the interrelation between the individual and the community: ‘Citizenship and the S (see heuermann 2012: 18), which means there are no representatives of s included is a relationship between the individual and state, in which the two are bound together by reciprocal rights in the orking roup who might have alternative views on human rights matter. and duties’ (Heywood 2000: 119). Citizenship refers to the membership in a political community and nother point of interest which provides insight into the enabling and hindering power factors concerning therefore exhibits dynamics of inclusion and exclusion ‘between those deemed eligible for citizenship and human rights policies relates to the analysis of which topics appear on the human rights agenda in those who are denied the right to become members’ (Kivisto and Faist 2007: 1). Today, citizenship is a what way. For example, efforts to tackle discrimination on grounds of gender were first introduced in broad and complex concept because being a citizen does not only give access to the enoyment of a broad 197 when the uropean conomic ommunity () was founded by the reaty establishing the range of political, civil, social, economic or cultural rights or is related to the duties of a person in relation uropean conomic ommunity (). he introduced the principle of eual remuneration for to a given state or community. It also refers to more fuzzy but nevertheless important aspects of identity eual work between male and female workers in order to remove the obstacles to the free movement of and belonging. itizenship is extremely important concerning the participation in and access to all fields persons, goods, services and capital and realise a common market. his economic impetus however of society and is closely related to principles of euality and nondiscrimination. In its inclusive dimension hindered the realisation of a more comprehensive nondiscrimination policy for a very long time. lthough it defines the members of a tate or society and concerning its exclusive aspects it demarcates non political structures have provided an opportunity to enhance gender policy to a very large extent they members who have no or only limited access to rights as well as to certain areas of society. have also powerfully influenced gender relations – to the disadvantage of women. For example, ‘the ne of the most distinguished authors in the field of citizenship theory was Thomas H. Marshall who language in EU texts has shifted from one of “sharing” family responsibilities to one of “reconciling” work defined the following three elements of citizenship which are usually also deployed concerning the and family. his shift has served to legitimie the flexibiliation of labour relations, create a secondary classification of human rights: feminized labour market and leave unchanged the distribution of unpaid labour in the family’ (Locher and rgl 2009: 187 see also Stratigaki 2004). The civil element is composed of the rights necessary for individual freedom – liberty of the person, freedom of speech, thought and faith, the right to own property and to conclude valid In reference to EU’s external relations it is important to take into consideration how human rights are contracts, and the right to justice […] By the political element I mean the right to participate in conceptualised in EU’s external relations and in what way they interact with other interests. There is a the exercise of political power, as a member of a body invested with political authority or as an considerable debate on the role of the EU as a ‘normative power’ (Bickerton 2011; Manners 2002; elector of the members of such a body […] By the social element I mean the whole range from the Scheipers and Sicurelli 2007 Sursen 200). he concept of the as a normative power was coined to a right to share to the full in the social heritage and to live the life of a civilised being according to large extent by Ian Manners who suggested the standards prevailing in the society (Marshall and Bottomore 12: ). that not only is the constructed on a normative basis, but importantly that this predisposes it to act in a normative way in world politics. (…) the EU can be onetualied as a changer of norms Individuals enoy their human rights to a great extent through the rights they are entitled to on the basis in the international system a positivist uantity to it – that the ats to change norms in the of citizenship: ‘Human rights and citizenship have long been closely entwined; indeed historically they international system and a normative uality to it – that the should act to extend its norms share similar roots in liberal individualism’ (Nash 2009: 1068). Although human rights are assumed to be into the international system (Manners 2002: 22). held by all human beings eually, they are always dependent on the recognition by a political community Human rights are an important part of the norms, the is based on and is extending into the or entity. ‘Rights are not and can never be simply intrinsic justified claims. (…) Rights conversely only exist international system. However, it has also been argued that the EU’s normative power is repeatedly in the context of complex relational structures of social recognition; that recognition is tied to the nature limited by economic and national interests of the Member States (e.g. Bickerton 2011 rickson 2013 of political association’ (Vincent 2010: 207). With the example of the vast number of stateless people and Hyderice 200). the uestion of minorities Hannah rendt profoundly challenged the idea that individuals have rights merely because they are human beings. ‘The Rights of man, supposedly inalienable, proved to be he further lost influence at the UN concerning human rights issues: ‘Europe has lost ground because unenforceable – even in countries whose constitutions were based upon them – whenever people of a reluctance to use its leverage, and a tendency to look inwards (…) rather than talk to others. It is also appeared who were no longer citizens of any sovereign state’ (Arendt 1973: 293). weakened by a failure to address flaws in its reputation as a leader on human rights and multilateralism’ (owan and Brantner 2008: 1). Thus, in reality fundamental rights are primarily guaranteed and safeguarded through the membership of a political community, i.e. being a citizen of a tate. ne of the most problematic aspects of citizenship is

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29 RAE elierale o its exclusionary effect which does not only refer to the exclusion of noncitizens from a broad range of rights (social, political etc.) but also various degrees of exclusion of citizens, depending, for instance, on their gender, sexuality, social class, ethnic group, and disability. The concept of human rights aims at counteracting this exclusionary aspect by decoupling rights from belonging to a – mostly nationally defined – State. ‘While national citizenship is understood as a broad legal and social framewor used of designating membership of a territoriality limited polis, human rights doctrine projects this legal framework beyond territories and national sovereignty’ (Estévez 2011: 1154). However, there are two major disadvantages of human rights in comparison to citizenship:

 nforcement and accountability: Citizenship is strongly interlined with the institutional set up of the nation state and, thus, the institutional mechanisms to enable and enforce citizen’s rights are intrinsically lined with state structures. Human rights lack a ‘robust institutional underpinning’ (Brys and hafir 200: ), they are also dependent primarily on state institutions in terms of enforcement as international enforcement mechanisms are relatively wea.

 Citizenship gap: Compared to citizens, a growing number of noncitizens (e.g. migrants, refugees, certain ethnic groups) ‘are often granted a lesser, conditional, or ambiguous status. This means that they may be ineligible for rights of political participation, social services, and sometimes even international recognition of their status’ (Brysk and Shafir 2004: 6). Those people are often hampered or even denied access to justice, goods, participation and services, they are marginalised in various field of society such as wor, housing or education. Thus, ‘the concept of rights beyond the bounds of the sovereign state, without a mechanism of maing these new rights accountable to their subjects’ (Chandler 2002: 115).

It is argued that currently citizenship is characterised by a proliferation of status groups of which members enjoy ‘a different package of formal and substantive rights according to their situation as citizens or non citizens, the way in which states administer human rights, and their access to material and moral resources within that state’ (Nash 2009: 1072). Her typology is divided into supercitizens who have all the rights of citizens, marginal citizens who although having full citizenship do not enjoy full citizenship status, uasicitizens who although not having citizenship of the tate they are residing in are enjoying human rights to a high degree, subcitizens who have no status as citizens and also limited access to human rights and uncitizens such as undocumented migrants ‘who have no recognized status in receiving countries’ (Nash 2009: 1078).

– Citizenship of the uropean nion was introduced by the Treaty of aastricht. Article 9 of the Treaty on European Union (TEU) says: ‘Every national of a ember tate shall be a citizen of the nion. Citizenship of the Union shall be additional to and not replace national citizenship.’ Ever since, the meaning and scope of uropean citizenship has been a topic of controversial academic and political discussions (see e.g. Bellamy 2008; Kochenov 2013; haw 2012). The following dimensions are of importance in relation to human rights:

30 RAE elierale o RAE elierale o its exclusionary effect which does not only refer to the exclusion of noncitizens from a broad range of EU citizenship adds to the proliferation of status groups as mentioned above. EU citizenship has been rights (social, political etc.) but also various degrees of exclusion of citizens, depending, for instance, on labelled as a ‘fragmented concept’ which refers to European citizens primarily in terms of economic or their gender, sexuality, social class, ethnic group, and disability. The concept of human rights aims at occupational aspects (Wiener 1998: 280). ‘EU citizenship is thus normatiely limited to precisely the etent counteracting this exclusionary aspect by decoupling rights from belonging to a – mostly nationally that EU integration is also normatiely limited, by reference to the terms of the present constitutional defined – State. ‘While national citizenship is understood as a broad legal and social framewor used of settlement’ (Shaw 2012: 5). designating membership of a territoriality limited polis, human rights doctrine projects this legal framework beyond territories and national sovereignty’ (Estévez 2011: 1154). However, there are two n the basis of case law of the EC, ochenov argues that although EU citizenship has gained in importance within the contet of EU law, the EC nevertheless fails to clearly define the ‘substance of rights’ of EU major disadvantages of human rights in comparison to citizenship: citizenship:  nforcement and accountability: Citizenship is strongly interlined with the institutional set up of The unpredictable outcomes of the recent cases, caused by the Court’s failure to clarify what this the nation state and, thus, the institutional mechanisms to enable and enforce citizen’s rights are ‘substance of rights’ actually means, multiplies contradictions, resulting in a massive assault on intrinsically lined with state structures. Human rights lack a ‘robust institutional underpinning’ clarity and legal certainty. (…) What kind of rights, the much alluded to ‘substance of rights’ (Brys and hafir 200: ), they are also dependent primarily on state institutions in terms of includes, is as unclear as ever, potentially promoting ‘citizenship without respect (Kochenov 2013: enforcement as international enforcement mechanisms are relatively wea. 512).  Citizenship gap: Compared to citizens, a growing number of noncitizens (e.g. migrants, refugees, ochenov addresses two further problems: irstly, the role of the Member States’ courts might undermine certain ethnic groups) ‘are often granted a lesser, conditional, or ambiguous status. This means the uniformity of application of EU law with regard to EU citizenship. Secondly, EU citizenship and the that they may be ineligible for rights of political participation, social services, and sometimes even Charter of Fundamental Rights might be ‘potentially competing vehicles of EU human rights protection’ international recognition of their status’ (Brysk and Shafir 2004: 6). Those people are often (ochenov 201: 515). hampered or even denied access to justice, goods, participation and services, they are marginalised in various field of society such as wor, housing or education. Thus, ‘the concept of EU citizenship is very closely connected with the concept of fundamental rights. The fragmented concept rights beyond the bounds of the sovereign state, without a mechanism of maing these new rights of EU citizenship might have negative effects on fundamental rights protection as it does not grant full accountable to their subjects’ (Chandler 2002: 115). rights compared to national citizenship (see Wiener 1997). urthermore, the range of rights of EU citizenship is limited in comparison to national citizenship. n addition, the access to individual complaint It is argued that currently citizenship is characterised by a proliferation of status groups of which members mechanism is difficult or even missing (e.g. EC). enjoy ‘a different package of formal and substantive rights according to their situation as citizens or non citizens, the way in which states administer human rights, and their access to material and moral lthough EU citizenship is a limited concept it nevertheless creates a citizenship gap in reference to non resources within that state’ (Nash 2009: 1072). Her typology is divided into supercitizens who have all EU citizens which puts immigrants from third countries and asylum seekers in a very weak position the rights of citizens, marginal citizens who although having full citizenship do not enjoy full citizenship concerning the enjoyment and guarantee of their human rights: status, uasicitizens who although not having citizenship of the tate they are residing in are enjoying human rights to a high degree, subcitizens who have no status as citizens and also limited access to […] Although human rights law is much more institutionalized in Europe than it is in the US, it is human rights and uncitizens such as undocumented migrants ‘who have no recognized status in receiving still very unevenly applied in Europe too. This is especially notable where issues of immigration countries’ (Nash 2009: 1078). and security tempt political authorities into sacrificing the rights of unpopular minorities – precisely those groups who are most in need of human rights (Nash 2009: 1072). – eocrac Citizenship of the uropean nion was introduced by the Treaty of aastricht. Article 9 of the Treaty on European Union (TEU) says: ‘Every national of a ember tate shall be a citizen of the nion. Citizenship ‘Modern political democracy is a system of governance in which rulers are held accountable for their of the Union shall be additional to and not replace national citizenship.’ Ever since, the meaning and scope actions in the public realm by citizens, acting indirectly through the competition and cooperation of their of uropean citizenship has been a topic of controversial academic and political discussions (see e.g. elected representatives.’ (Schmitter and Karl 1991: 76) This definition of modern representative Bellamy 2008; Kochenov 2013; haw 2012). The following dimensions are of importance in relation to democracies only represents one of many definitions aiming at grasping diverse forms and compositions human rights: of modern democracy. emocracy as a form of governance has a long history and dates back to the

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Ancient reece. owever, the ancient reek model of democracy differs in many aspects from the contemporary model of democracy as it was based on a very selective mode of participation, the value of euality was restricted to the public sphere and the ancient reek city states were very small in numbers of inhabitants. n contrast, the modern concept of democracy is premised on the idea of euality reaching far beyond the political realm further important dimensions of modern democracies are participation, representation, transparency, accountability, legitimacy and responsiveness of political institutions.

emocracy and human rights are distinct yet interdependent concepts. The ienna elaration and rogramme o Ations of 1993 states in Art. 8:

emocracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. emocracy is based on the freely epressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. n the contet of the above, the promotion and protection of human rights and fundamental freedoms at the national and international levels should be universal and conducted without conditions attached. The international community should support the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world.

Although interdependent it can be argued that the theoretical concepts which human rights and democracy respectively are based on are completely different:

emocracy is a collective concept, and democratic governments can violate the human rights of individuals. The concept of human rights is designed to limit the power of governments, and, insofar as it subects governments to popular control, it has a democratic character. ut human rights limit the legitimate power of all governments, including democratic governments (Freeman 2002: 72).

espite this conceptual difference, the Universal eclaration of uman Rights (UR) as well as the nternational Covenant on Civil and olitical Rights (CCR) contain direct and indirect references to a ‘democratic society’. In Art. 25 the ICCPR stipulates that:

[E]very citizen shall have the right and the opportunity […] (a) To take part in the conduct of public affairs, directly or through freely chosen representatives (b) To vote and to be elected at genuine periodic elections which shall be by universal and eual suffrage and shall be held by secret ballot, guaranteeing the free epression of the will of the electors.

espite this strong commitment to democracy, it has to be mentioned that liberal democracies with their focus on the protection of civil and political rights and with their connectedness to capitalism often fail to adeuately protect social and economic rights (Chun 2001). evertheless, the correlation between democracy and human rights is in general evaluated to be a positive one (see afnerurton 201: 275). avenport refers to three dimensions in this contet: Firstly, democratic authorities can be voted out of office and, thus, are less likely to use repressive means. Secondly, individuals in democracies are more

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Ancient reece. owever, the ancient reek model of democracy differs in many aspects from the prone to support values such as tolerance communication or delieration hich are in opposition to contemporary model of democracy as it was based on a very selective mode of participation, the value of repressive ehaviour. And thirdly democracies ‘provide an alternative mechanism of control through euality was restricted to the public sphere and the ancient reek city states were very small in numbers participation and contestation. They also eaken the ustiication or coercive activity y reducing the of inhabitants. n contrast, the modern concept of democracy is premised on the idea of euality reaching likelihood for human conflict and facilitating the conveyance of grievances.’ (Davenport 2009: ) far beyond the political realm further important dimensions of modern democracies are participation, representation, transparency, accountability, legitimacy and responsiveness of political institutions. – The uestion o democracy is a sore point in the E integration process. ince several preceding attempts emocracy and human rights are distinct yet interdependent concepts. The ienna elaration and to initiate a political union ailed the estalishment o the European Communities (EC) primarily aimed at rogramme o Ations of 1993 states in Art. 8: economic integration. In doing so it olloed a neounctionalist logic: integration in the economic sector should gradually have a spillover eect on other sectors and eventually result in a closer cooperation and emocracy, development and respect for human rights and fundamental freedoms are integration in the political sector as well. During the last decades the EU ‘has evolved from a community interdependent and mutually reinforcing. emocracy is based on the freely epressed will of the of states towards a supranational federation’ (Benz 2006: 99). Although there have been considerable people to determine their own political, economic, social and cultural systems and their full eorts to enhance the democratic uality o the E democratic elements have only een gradually participation in all aspects of their lives. n the contet of the above, the promotion and protection estalished during the integration process. Although the political system o the E has eperienced a of human rights and fundamental freedoms at the national and international levels should be maor democratic push orard through the Treaty o ison the democratic uality o the E is assumed universal and conducted without conditions attached. The international community should to e laed although there is considerale disagreement on ho and to hat etent o the democratic support the strengthening and promoting of democracy, development and respect for human deicit (see e.g. enz 2 Chryssochoou 2 Emmanouilidis and tratulat 2 llesdal and i 2 rights and fundamental freedoms in the entire world. Piris 2 arleighack 2). Thus i democratic participation and accountaility is seen to e an Although interdependent it can be argued that the theoretical concepts which human rights and important actor in guaranteeing political rights the political system o the E has shortcomings in this democracy respectively are based on are completely different: regard. Thus the olloing dimensions are discussed as serious issues concerning the E democratic uality and thus aects all rights concerning political participation: emocracy is a collective concept, and democratic governments can violate the human rights of individuals. The concept of human rights is designed to limit the power of governments, and,  Compared to national parliaments hich are the main ody in order to realise the right o the insofar as it subects governments to popular control, it has a democratic character. ut human citizens to take part in the conduct o pulic aairs (Art. 25(a) ICCPR) at the national level the E rights limit the legitimate power of all governments, including democratic governments (Freeman Parliament (EP) is rather eak although it has eperienced a maor upgrading due to the Treaty 2002: 72). of Lisbon. ‘European integration has meant an increase in executive power and a decrease in national parliamentary control’ (llesdal and i 2: 5). The separation o poer at the E espite this conceptual difference, the Universal eclaration of uman Rights (UR) as well as the level is still lurred although the Treaty o ison has introduced the ordinary legislative procedure nternational Covenant on Civil and olitical Rights (CCR) contain direct and indirect references to a hich provides or a oint decisionmaking poer o the EP and the Council as the main legislative ‘democratic society’. In Art. 25 the ICCPR stipulates that: procedure o the E. In addition E elections are not comparale to national elections (Iid.). In short, ‘the transfer of legislative powers from national parliaments to the EU institutions has not [E]very citizen shall have the right and the opportunity […] (a) To take part in the conduct of public een matched y an euivalent degree o democratic accountaility and legislative input on the affairs, directly or through freely chosen representatives (b) To vote and to be elected at genuine part of the EP, the only directly elected institution at EU level’ (Chryssochoou 2010: 380). periodic elections which shall be by universal and eual suffrage and shall be held by secret ballot, guaranteeing the free epression of the will of the electors.  utput eectiveness is very oten argued to e compensating or the lack o input legitimacy i.e. the lack o possiilities or participation strong position o eecutive odies (see e.g. chmidt espite this strong commitment to democracy, it has to be mentioned that liberal democracies with their 2 arleighack 2: ). oever there is serious dout i a lack o input legitimacy can focus on the protection of civil and political rights and with their connectedness to capitalism often fail to e compensated y output eectiveness hich suggests that the uality and eectiveness o E adeuately protect social and economic rights (Chun 2001). evertheless, the correlation between decision making can level out the shortcomings ith regard to the adeuate representation o democracy and human rights is in general evaluated to be a positive one (see afnerurton 201: 275). the people’s interests and ‘access to political processes at different levels’ (Benz 2006: 99). avenport refers to three dimensions in this contet: Firstly, democratic authorities can be voted out of However, for many Europeans, ‘the Union is a distant ureaucratic apparatus that lacks the office and, thus, are less likely to use repressive means. Secondly, individuals in democracies are more appropriate institutional structures for democratic input’ (Emmanouilidis and Stratulat 2010) and

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the effectiveness of EU decision making processes is hampered by the involvement of many actors with veto power (Benz 2006: 99). n addition, it has to be uestioned whether the policy and legal output of the EU is legitimate from the citizen’s point of view. ‘The negative outcomes of successive referenda on EU treaties, and the decline in support for European integration and trust in EU institutions documented by opinion polls and voter turnout at European Parliament elections, are all seen as signs of public apathy and growing estrangement’ (Ibid.).

 Besides these two most important points, there is also a discussion on the lack of a European demos1 which is occasionally argued to be necessary for democratic process. he EU lacks a ‘transnational demos’ which can be defined as ‘a composite citizen body, whose members share an active interest in the governance of the larger polity and who can direct their democratic claims to and via the central institutions’ (Chryssoucoou 2010: 382). There is no European identity comparable to those of its ember States. he democratic deficit therefore not only refers to an institutional dimension but also has a sociopsychological aspect (Chryssoucoou 2010: 380382).

 Lack of transparency and lack of accountability are further issues discussed under the heading democratic deficit. he complexity of the multilevel system makes it ‘difficult for citizens and members of national parliaments to identify the specific contribution of each responsible actor and to control or sanction the behaviour of the relevant actors’ (Benz 2006: 108) as well as it hampers the access to the political system.

The Treaty of Lisbon set out to ‘to complete the process started by the Treaty of Amsterdam and by the reaty of ice with a view to enhancing the efficiency and democratic legitimacy of the Union and to improving the coherence of its action’ (reaty of Lisbon, Preamble). he most important democratic advancements of the reaty of Lisbon are the strengthening of the role of the EP, defining a clear role of national parliaments and providing for citizen’s initiatives (Piris 2010: 11311). he value of democracy is defined as being a founding principle of the EU in Art. 2 of the EU. itle of the EU contains provisions on democratic principles and defines the EU as a representative democracy. he chapter further lays down that every citizen shall have the right to participate in the democratic life of the EU (Art. 10(3)) as well as the EU’s institutions commitment to transparency. Article 11(4) determines the right to citizens’ initiative and Art. 12 defines the role of national parliaments in the framework of the EU institutional system and decisionmaking process.

The TEU also defines principles in reference to EU’s external relations. Art. 21 TEU stipulates that the Union’s action on the international scene shall be guided by the following principles: ‘democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity.’ Art. 21(2) says that the ‘Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to (…) consolidate and support democracy, the rule of law, human rights and the principles of international law.’ On 25 June 2012 the Council of the European Union has released the EU

1 Chryssoucoou (1998: 89) defined the demos as a “community of citizens linked to each other by strong democratic bonds and pressing to acuire a measure of effective control through formal or informal means over government”.

34 RAE elierale o RAE elierale o the effectiveness of EU decision making processes is hampered by the involvement of many actors trategi rameor and Ation lan on Human Rights and emoray. The document lays down that the with veto power (Benz 2006: 99). n addition, it has to be uestioned whether the policy and legal principles of human rights, democracy and the rule of law shall ‘underpin all aspects of the internal and output of the EU is legitimate from the citizen’s point of view. ‘The negative outcomes of external policies of the European Union’ and defines key areas of EU’s action concerning the enhancement successive referenda on EU treaties, and the decline in support for European integration and trust of democracy and human rights. in EU institutions documented by opinion polls and voter turnout at European Parliament elections, are all seen as signs of public apathy and growing estrangement’ (Ibid.). To sum up, setting out as an international organisation focusing on economic integration the EU has only gradually taken steps towards introducing democratic elements. The socalled democratic deficit refers  Besides these two most important points, there is also a discussion on the lack of a European to shortcoming with regard to institutional design of the EU as well as to more sociopsychological issues demos1 which is occasionally argued to be necessary for democratic process. he EU lacks a which hamper EU citizens to realise their right to political participation. owever, not least by adopting ‘transnational demos’ which can be defined as ‘a composite citizen body, whose members share the Treaty of Lisbon the EU has made considerable efforts to tackle these shortcomings by increasing the an active interest in the governance of the larger polity and who can direct their democratic claims role of the EP and the national parliaments, by committing to values such as human rights and to and via the central institutions’ (Chryssoucoou 2010: 382). There is no European identity transparency and by creating new ways of participation of the citizens. Concerning the historical comparable to those of its ember States. he democratic deficit therefore not only refers to an development of the EU it can be observed that the strengthening of the human rights dimension of the institutional dimension but also has a sociopsychological aspect (Chryssoucoou 2010: 380382). EU goes hand with the effort to strengthen the democratic quality of the EU and, thus, enhancing the EU’s citizens rights to political participation.  Lack of transparency and lack of accountability are further issues discussed under the heading democratic deficit. he complexity of the multilevel system makes it ‘difficult for citizens and onclsions members of national parliaments to identify the specific contribution of each responsible actor uman rights are deeply political. They are defined in a political context and by political actors or within and to control or sanction the behaviour of the relevant actors’ (Benz 2006: 108) as well as it political institutions. They are used as political instruments in political campaigns and the definition of hampers the access to the political system. human rights norms and standards are political issues, sometimes highly contested. It is important to emphasise that political factors that hinder or enable human rights are relevant for several political The Treaty of Lisbon set out to ‘to complete the process started by the Treaty of Amsterdam and by the dimensions: it concerns the dimension of politics, which refers to political processes, as well as the policy reaty of ice with a view to enhancing the efficiency and democratic legitimacy of the Union and to dimension, meaning the content or substance of politics, as well as political structures. Thus, the following improving the coherence of its action’ (reaty of Lisbon, Preamble). he most important democratic political factors were identified to be crucial aspects concerning the implementation of human rights in advancements of the reaty of Lisbon are the strengthening of the role of the EP, defining a clear role of EU policies: tates and state sovereignty, ideologies, power, citizenship and democracy. national parliaments and providing for citizen’s initiatives (Piris 2010: 11311). he value of democracy is defined as being a founding principle of the EU in Art. 2 of the EU. itle of the EU contains provisions Concerning the importance of tate structures for the implementation and guarantee of human rights, on democratic principles and defines the EU as a representative democracy. he chapter further lays down this aspect is important in regard to two aspects: on the one hand there is the issue of the position of that every citizen shall have the right to participate in the democratic life of the EU (Art. 10(3)) as well as ember tates in the political structure of the EU on the other there is the shape and configuration of the EU’s institutions commitment to transparency. Article 11(4) determines the right to citizens’ initiative the EU as an actor which is of unique structure and therefore differs wildly from ‘traditional’ State and Art. 12 defines the role of national parliaments in the framework of the EU institutional system and structures normally entrusted with respecting, protecting and fulfilling human rights. Both aspects may decisionmaking process. either hinder human rights protection at the EU level or open up new windows of human rights opportunity. owever, it would be important to do indepth research on how exactly both dimensions The TEU also defines principles in reference to EU’s external relations. Art. 21 TEU stipulates that the either hinder or advance EU human rights protection. Union’s action on the international scene shall be guided by the following principles: ‘democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human eoliberalism and growing nationalism and racism as important ideologies in the EU and its ember dignity, the principles of equality and solidarity.’ Art. 21(2) says that the ‘Union shall define and pursue tates are perceived to be serious threats to the enoyment of human rights as they may undermine not common policies and actions, and shall work for a high degree of cooperation in all fields of international only social and economic rights and welfare state policies but also civil and political rights and question relations, in order to (…) consolidate and support democracy, the rule of law, human rights and the the human rights proect as such or reect the universal application of human rights. urther analysis is principles of international law.’ On 25 June 2012 the Council of the European Union has released the EU necessary to investigate the concrete impact of ideologies on EU human rights protection.

Power relations are crucial when it comes to the implementation of human rights. They refer to the 1 Chryssoucoou (1998: 89) defined the demos as a “community of citizens linked to each other by strong democratic position and influence of political actors in the EU human rights framework as well as to the question bonds and pressing to acuire a measure of effective control through formal or informal means over government”.

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35 RAE elierale o whose interest are included in the EU human rights agenda and whose are marginalised oweer, there is little research done so far on how power relations impede or enale EU human rights policies hus, additional research is necessary to identify ostacle and opportunities in this contet

itienship may e a serious challenge to human rights ecause of its eclusie dimensions EU citienship is a fragmented concept and adds to the proliferation of different status groups whose memers enoy differing access to fundamental rights n addition, also the concept of EU citienship creates a citienship gap in reference to nonEU citiens which may put the latter group in a weak situation, sometimes where there hae only limited access to rights

emocracy as the realisation of political rights is flawed at EU leel lthough the EU has seen a remarkale strengthening of its democratic uality through the reaty of ison, there are still prolematic issues when it comes to the democratic legitimacy of the political system of the EU and its political output lack of transparency and accountaility as well comple political structures which hinder political participation are perceied as negatiely impairing the democratic uality of the EU n important starting point for further research therefore concerns the uestion of how a strengthening of human rights at EU leel can enhance not only the democratic legitimacy of the EU political system ut also promote transparency and accountaility at EU leel

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European arliament Euroean arliament legislatie resolution o Aril on the roosal or a Counil diretie on imlementing the rinile o eual treatment eteen ersons irresetie o religion or elie disaility age or seual orientation – – S,

iteratre

rendt, he rigins o otalitarianism, San iego arest ooks

hryssochoou, emoray in the Euroean Union, ondon auris

onnelly, Uniersal Human Rights in heory ratie, thaca and ondon ornell Uniersity ress

orsythe, Human Rights in International Relations, amridge Uniersity ress

reeman, Human Rights An interdisilinary aroah, amridge and alden olity

36 RAE elierale o RAE elierale o whose interest are included in the EU human rights agenda and whose are marginalised oweer, there ey Conets in olitis is little research done so far on how power relations impede or enale EU human rights policies hus, olitial Ideologies An Introdution additional research is necessary to identify ostacle and opportunities in this contet ultieel oernane and Euroean integration itienship may e a serious challenge to human rights ecause of its eclusie dimensions EU citienship is a fragmented concept and adds to the proliferation of different status groups whose memers enoy differing access to fundamental rights n addition, also the concept of EU citienship creates a citienship he History o Human Rights rom Anient imes to the loaliation Era gap in reference to nonEU citiens which may put the latter group in a weak situation, sometimes where there hae only limited access to rights Citienshi isourse heory and ransnational rosets emocracy as the realisation of political rights is flawed at EU leel lthough the EU has seen a remarkale strengthening of its democratic uality through the reaty of ison, there are still prolematic issues when it comes to the democratic legitimacy of the political system of the EU and its oer A Radial ie political output lack of transparency and accountaility as well comple political structures which Citienshi and oial Class hinder political participation are perceied as negatiely impairing the democratic uality of the EU n important starting point for further research therefore concerns the uestion of how a strengthening of he odern tate human rights at EU leel can enhance not only the democratic legitimacy of the EU political system ut also promote transparency and accountaility at EU leel he erman Ideology

iliograph he isonreaty A egal and olitial Analysis

egal and polic instrents Women’s Human Rights. Seeking Gender Justice in a Globalizing Age ouncil of the European Union EU trategi rameor and Ation lan on Human Rights and emoray, uemourg, une , International Human Rights etoo European arliament Euroean arliament legislatie resolution o Aril on the roosal or a Counil diretie on imlementing the rinile o eual treatment eteen ersons irresetie o he olitis o Human Rights religion or elie disaility age or seual orientation – – S, iteratre European’ Citizenship Practice. Building Institutions of a Nontate Euroean Integration heory rendt, he rigins o otalitarianism, San iego arest ooks hryssochoou, emoray in the Euroean Union, ondon auris onnelly, Uniersal Human Rights in heory ratie, thaca and ondon ornell Uniersity Benz, A. (2006) ‘Policymaking and accountability in EU multilevel governance’, in: Benz, A. and ress oernane and emoray Comaring national Euroean and international eerienes orsythe, Human Rights in International Relations, amridge Uniersity ress kerton, C. J. (2011) ‘Legitimacy Through Norms: The Political Limits to Europe’s Normative Power’, in: reeman, Human Rights An interdisilinary aroah, amridge and alden olity ormatie oer Euroe Emirial and heoretial erseties

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Brysk, A. and hafir, G. (2004) ‘Introduction. Globalization and the Citizenship Gap’, in: Ibid. (eds.) (200) People out of place globalization human rights and the citizenship, New ork and London: outledge, pp. .

Burchill, R. (2011) ‘Assessing the EU’s position on human rights: is it a desirable one?’, in: Wetzel, J. E. (ed.) The EU as a “Global Player” in Human Rights?. London and New York: Routledge, pp. 171.

Chandler, D. (2002) ‘The Limits of Human Rights and Cosmopolitan Citizenship’, in: Ibid. (ed.) (200) Rethinking Human Rights. Critical Approaches to International Politics, New ork: Palgrave acmillan, pp. 111.

Chryssochoou, D. N. (2010) ‘Europe’s Contested Democracy’, in: Cini, M. and Pérezolrzano Borragn, N. (eds.) European nion Politics, rd edition, ord: University Press, pp. .

Clunan, A. L. (2009) ‘Redefining Sovereignty: Humanitarianism’s Challenge to Sovereign Immunity’, in hawki, N. and Co, . (eds.) Negotiating Soereignt and Human Rights. Actors and Issues in Contemporar Human Rights Politics urrey: Ashgate, pp. 2.

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De Búrca, G. (2011) ‘The Evolution of EU Human Rights Law’, in Craig, P. and de Búrca, he Eolution of E a, econd Edition, ord: University Press, pp. 6.

Hay, C. and Lister M. (2006) ‘Introduction: Theories of the State’, in Hay, C., Lister, M. and Marsh, D. (eds.) he State. heories and Issues, New ork and others: Palgrave acmillan, pp. 120.

Langlois, A. J. (2009) ‘Normative and Theoretical Foundations of Human Rights’, in: Goodhart, M. (ed.) (200) Human Rights. Politics Practice, ord: ord University Press, pp. 112.

Locher, B. and Prügl, E. (2009) ‘Gender and European integration’, in Wiener, A. and Diez, T. (eds.) European Integration heor, ord: University Press, pp. 111.

gret, F. (2010) ‘Nature of Obligations’, in Moeckli, D., Shah, S. and Sivakumaran, S. (eds.) International Human Rights a ord: University Press, pp. 121.

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Moravscik, A. and Schimmelfennig, F. (2009) ‘Liberal Intergovernmentalism’, in Wiener, A. and Diez, T. (eds.) European Integration heor, ord: University Press, pp. 6.

Peters, B. . and Pierre, J. (2009) ‘Governance Approaches’, in Wiener, A. and Diez, T. (eds.) European Integration heor, ord: University Press, pp. 110.

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Brysk, A. and hafir, G. (2004) ‘Introduction. Globalization and the Citizenship Gap’, in: Ibid. (eds.) (200) Shafir, G. (2004) ‘Citizenship and Human Rights in an Era of Globalization’, in: Brysk, A. and Shafir, G. People out of place globalization human rights and the citizenship, New ork and London: outledge, (eds.) (2004) People out of place globalization human rights and the citizenship, New York and London: pp. . Routledge, pp. 112.

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HafnerBurton, E. M. (2014) ‘A social science of human rights’, in: Journal of Peace Research, vol. 51, no. 2, pp. 273286.

Hermann, C. (2007) ‘Neoliberalism in the European Union’, in: Studies in Political Econom, vol. 79, pp. 6189.

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Kochenov, D. (2013) ‘The Right to Have What Rights? EU Citizenship in Need of Clarification’, in: European la Journal, vol. 19, no. 4, pp. 502516.

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Nash, K. (2009) ‘Between Citizenship and Human Rights’, in: Sociology, vol. 42, no. 6, pp. 1067–1083.

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Foucault, M. (1987) ‘The Ethic of Care for the Self as a Practice of Freedom: an interview’, in: Philosoph Stratigaki, M. (2004) ‘The Cooptation of Gender Concepts in EU Policies: The Case of “Reconciliation of Social Criticism, vol 12, no. 2.3, pp. 112131. Work and Family”’, in: Social Politics International Studies in Gender State and Societ, vol. 11, no. 1, pp. 306. HafnerBurton, E. M. (2014) ‘A social science of human rights’, in: Journal of Peace Research, vol. 51, no. 2, pp. 273286. Carrera, S. and Wiesbrock, A. (2009) Ciic Integration of hirdCountr Nationals. Nationalism ersus Hermann, C. (2007) ‘Neoliberalism in the European Union’, in: Studies in Political Econom, vol. 79, pp. Europeanisation in the Common E Immigration Polic, October 2009, Report prepared for ENACT, 6189. available at http:www.ceps.becepsdld2179pdf 4 June 2014.

HydePrice, A. (2006) ‘’Normative’ power Europe: a realist critique’, in: Journal of European Public Polic, Emmanouilidis, J. A. and Stratulat, C. (2010) Implementing Lisbon: narrowing the EU’s ‘democratic vol. 13, no. 2, pp. 217234. deficit’?, EPC Policy Brief, March 2010. st Kapur, R. (2006) ‘Human Rights in the 21 Century: Take a Walk on the Dark Side’, in: Sdne a Golub, S. (2003) Access to Human Rights bstacles and Issues, The International Council on Human Reie, vol. 28, no. 4, pp. 665687. Rights Policy, Sixth Annual Assembly, Access to Human Rights: Improving Access for Groups at High Risk, Kinzelbach, K. and Kozma, J. (2009) ‘Portraying Normative Legitimacy: The EU in Need of Institutional Guadalajara, 1718 January 2003, available at http:www.ichrp.orgfilespapers99123 Safeguards for Human Rights’, in: Perspecties on European Politics and Societ, vol. 10, no. 4, pp. 603 AccesstoHumanRightsObstaclesandIssuesGolubStephen2003.pdf 10 April 2014. 620. Gowan, R. and Brantner, F. (2008) A global orce for Human Rights An Audit of European Poer at the N Kochenov, D. (2013) ‘The Right to Have What Rights? EU Citizenship in Need of Clarification’, in: , Policy Paper, European Council on Foreign Relations, London. European la Journal, vol. 19, no. 4, pp. 502516. Shaw, J. (2012) E citizenship and the edges of Europe, Citsee Working Paper Series, University of Manners, I. (2002) ‘Normative Power Europe: A Contradiction in Terms?’ in: JCS, vol. 40, no. 2, pp. Edinburgh, Working Paper 201219. 235258. Wiener, A. (1997) aking Sense of the Ne Geograph of Citizenship. ragmented Citizenship in the European nion Manokha, I. (2009) ‘Foucault’s Concept of Power and the Global Discourse of Human Rights’, in Global , Paper presented at the fifth biennial international conference of the European Societ, vol. 23, no. 4, pp. 429452. Community Studies Association, Seattle, USA, May 19 – June 1, 1997.

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Scheipers, S. and Sicurelly, D. (2007) ‘Normative Power Europe: A Credible Utopia?’, in: JCS, vol. 45, no. 2, pp. 435457.

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40 41

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egal actors

ntrodction This chapter eplores legal factors that can hinder or enable the protection of human rights in the European Union (EU). egal uncertainty about if and to what etent human rights norms are applicable to the EU, and the scope of human rights protection offered by the EU, is an important factor that can hinder or enable human rights protection when the EU is acting both internally and eternally.

The chapter focuses on four legal uestions or issues that impact individual enjoyment of human rights. irstl, it is discussed to what etent the EU and Member States implementing EU law are bound by clear and consistent human rights obligations when acting internally. This section has a specific focus on the EU Charter on Fundamental Rights (CFREU) and the accession of the EU to the European Convention on Human Rights (ECHR) and eventually to other international human rights conventions. econdl, it is discussed whether the EU is bound by human rights obligations when acting eternally, specifically whether the CFREU is applicable when the EU is acting in third States. hirdl, the chapter deals with the relationship between EU human rights obligations and other international law obligations. orthl and finally the uestion of shared human rights responsibility between the EU and EU Member States is briefly touched upon.

t is eually important that there eists effective judicial enforcement mechanisms such as courts that can ensure that legal standards on human rights protection are implemented and enforced in practice. However, such enforcement mechanisms are dealt with in this chapter.

loal context t the global level there has been much debate in recent years about whether and under which circumstances an international organisation – like the EU – can be responsible for violating international law. The U nternational aw Commission (C) in 20 adopted a set of draft articles on the responsibility of international organisations for internationally wrongful acts including violations of international human rights law (HR). The articles are not directly binding on States but may be an epression of customary international law.

Pursuant to rt. 4 in the draft articles an international organisation is responsible for a wrongful act when i) the act can be attributed to the organisation and ii) the act ‘constitutes a breach of an international obligation of that organization’. In particular the second criteria has caused discussion. To what extent is an international organisation like the EU bound by international law? The nternational Court of ustice (C) established in the eadarters greement case from 0 that:

nternational organiations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties.

 The author of this chapter is r. Peter edel essing, Senior Researcher, the anish nstitute for Human Rights.

42 E elierable o E elierable o

egal actors Thus, an international organisation may be bound by international law in three ways: (i) through ‘general rules of international law’ – this concept is not clearl defined in international law but it ust include ntrodction ‘general principles of law recognized by civilized nations’ (cf. Art. 38(1)(c) in the Statute of the This chapter eplores legal factors that can hinder or enable the protection of human rights in the International Court of Justice) and arguably also ‘customary international law’ (cf. Art. 38(1)(b)); (ii) European Union (EU). egal uncertainty about if and to what etent human rights norms are applicable to through the terms of the international organisation’s constituent instrument, for example the UN Charter the EU, and the scope of human rights protection offered by the EU, is an important factor that can hinder in relation to the nited ations or the Treat on the uropean nion T) in relation to the and iii) or enable human rights protection when the EU is acting both internally and eternally. if the organisation has becoe part to an international conention.

The chapter focuses on four legal uestions or issues that impact individual enjoyment of human rights. iewise the International aw ssociation stated in its final report fro on the ccontabilit of irstl, it is discussed to what etent the EU and Member States implementing EU law are bound by clear International rganiations with regard to the applicabilit of I that and consistent human rights obligations when acting internally. This section has a specific focus on the EU uan rights obligations which are increasingl becoing an expression of the coon Charter on Fundamental Rights (CFREU) and the accession of the EU to the European Convention on constitutional traditions of tates can becoe binding upon Is international organizations in Human Rights (ECHR) and eventually to other international human rights conventions. econdl, it is different was through the ters of their constituent instruents as custoar international discussed whether the EU is bound by human rights obligations when acting eternally, specifically law or as general principles of law or if an I is authorised to becoe a part to a huan rights whether the CFREU is applicable when the EU is acting in third States. hirdl, the chapter deals with the treat. The consistent practice of Is points to a recognition of this. relationship between EU human rights obligations and other international law obligations. orthl and finally the uestion of shared human rights responsibility between the EU and EU Member States is briefly In addition to this uestion about whether an international organisation is bound b international law touched upon. three other general legal issues concerning I hae caused debate at the global leel the extraterritorial application of I the relationship between I and other international law obligations t is eually important that there eists effective judicial enforcement mechanisms such as courts that can and the uestion of shared responsibilit for huan rights iolations. The legal uncertaint about these ensure that legal standards on human rights protection are implemented and enforced in practice. four global legal issues hae also been reflected in the uropean context as further discussed below in However, such enforcement mechanisms are dealt with in this chapter. section . loal context Eropean context t the global level there has been much debate in recent years about whether and under which circumstances an international organisation – like the EU – can be responsible for violating international he EU and han rights protection ithin the EU law. The U nternational aw Commission (C) in 20 adopted a set of draft articles on the responsibility eber tates are obiousl bound b I instruents the hae ratified. ut to what extent is the of international organisations for internationally wrongful acts including violations of international human as an international organisation bound b I s entioned aboe it has been debated at the global rights law (HR). The articles are not directly binding on States but may be an epression of customary leel to what extent international organisations are bound b international law including I. international law. It is stated in the preable and rt. of the T that the is founded on the alues of respect for huan Pursuant to rt. 4 in the draft articles an international organisation is responsible for a wrongful act when dignit freedo deocrac eualit the rule of law and respect for huan rights. urtherore it is laid i) the act can be attributed to the organisation and ii) the act ‘constitutes a breach of an international down in rt. that the recognises fundaental rights including huan rights. ursuant to rt. there obligation of that organization’. In particular the second criteria has caused discussion. To what extent is are three was fundaental rights and huan rights are applicable and releant to the reflecting the an international organisation like the EU bound by international law? The nternational Court of ustice three was an international organisation can be bound b international law as described in section (C) established in the eadarters greement case from 0 that: aboe

nternational organiations are subjects of international law and, as such, are bound by any  Through . This will be discussed in section a) below obligations incumbent upon them under general rules of international law, under their  Through the as an expression of fundaental rights and eentuall through the accession of constitutions or under international agreements to which they are parties. the to the . This will be discussed in section b) below and  Through the constitutional traditions coon to the eber tates that shall constitute general principles of the Union’s law. This will be discussed in section c) below.

 The author of this chapter is r. Peter edel essing, Senior Researcher, the anish nstitute for Human Rights.

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In addition, the U may ratify and thus be bound by international human rights conventions, see section d) below.

In , the U proclaimed its own Charter of undamental ights (CU), which became legally binding in ecember when the Treaty of isbon entered into force. The Charter has the same legal value as the U treaties, as prescribed in Art. of the TU. The Charter is directly applicable in ember States and according to consistent practice from the Court of Justice of the uropean Union (CJU), must be afforded supremacy over national law in case of inconsistency (see e.g. CJU, an end en Loos, Case , 13).

The Charter is to be seen as a constittional rather than an international instrument. The Charter is proclaimed by the Union for Union purposes. This is also reflected in the terminology used in the TU and the CFREU. It is a Charter on ‘fundamental rights’ rather than on ‘human rights’ (Rosas 2014: 1685). The Charter brings together in a single document the fundamental rights protected in the U. The Charter contains rights and freedoms under six titles: ignity, reedoms, uality, Solidarity, Citizens ights, and Justice. The Charter entrenches all the rights found in the case law of the CJ; the rights and freedoms enshrined in the C; and other rights and principles resulting from the common constitutional traditions of U countries and other international instruments.

In addition, the Charter contains new socalled third generation rights, such as data protection; guarantees on bioethics; and transparent administration, including a number of rights which traditionally have not been perceived or described as international human rights norms. See in particular Chapter I in the Charter on solidarity rights, for example Art. on right to access to placement services; Art. 31 on fair and ust woring conditions; Art. 3 on environmental protection; and Art. 38 on consumer protection.

rom a human right perspective it is positive that the CU includes a broad range of rights including economic and social rights and new, emerging rights. ut there are also certain gaps and shortcomings which can hinder effective protection of human rights in the U.

o niersal scope of application

irst, it must be stressed that the CU is not a generally applicable human rights convention, lie the C. The CU only applies for U institutions and for ember States when implementing Union law.

Art. 1(1) in the CU reads:

1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the ember States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.

. This Charter does not establish any new power or tas for the Community or the Union, or modify powers and tass defined by the Treaties.

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In addition, the U may ratify and thus be bound by international human rights conventions, see section ene the Charter is meant to ensure the omliane of European Union’s actions with human rights as d) below. laid don in the Charter and it does not imose another list of rights uon emer tates.

he Charter is therefore not a free standing ill of rights ut onl alies ithin the field of EU la In , the U proclaimed its own Charter of undamental ights (CU), which became legally binding (ouglasott 2011: 652). he Charter las don a rinile of human rights omliane for all ats in ecember when the Treaty of isbon entered into force. The Charter has the same legal value as attriutale to the EU. hat inludes ats of all EU odies and also the ondut of emer tates hen the U treaties, as prescribed in Art. of the TU. The Charter is directly applicable in ember States and the are imlementing EU la (Fontanelli 2014 . 2). according to consistent practice from the Court of Justice of the uropean Union (CJU), must be afforded supremacy over national law in case of inconsistency (see e.g. CJU, an end en Loos, Case , 13). he CEU has found that general riniles of la inluding IR are inding not onl on EU odies ut also on emer tates that (i) imlement EU la or (ii) adot measures in derogation of EU ommitments The Charter is to be seen as a constittional rather than an international instrument. The Charter is (see ase 588 achaf 18 ECR 260 and ase C 2608 Ellini adiophonia ileorassi 1 ECR I proclaimed by the Union for Union purposes. This is also reflected in the terminology used in the TU and 225). the CFREU. It is a Charter on ‘fundamental rights’ rather than on ‘human rights’ (Rosas 2014: 1685). The Charter brings together in a single document the fundamental rights protected in the U. The Charter However, it is not entirely clear from the case law of the CJEU when Member States are ‘implementing contains rights and freedoms under six titles: ignity, reedoms, uality, Solidarity, Citizens ights, and EU law’ with the consequence that the Charter is applicable. The CJEU has in some cases stated that Justice. The Charter entrenches all the rights found in the case law of the CJ; the rights and freedoms fundamental rights oligations are inding on emer tates not ust hen emer tates imlement enshrined in the C; and other rights and principles resulting from the common constitutional EU law, but every time domestic norms ‘do fall within the scope of Community law’ (CJEU, E ase C traditions of U countries and other international instruments. 2608 E 111225).

In addition, the Charter contains new socalled third generation rights, such as data protection; lso in the aademi legal scholarship there has been various views on how to interpret ‘implementing guarantees on bioethics; and transparent administration, including a number of rights which traditionally EU law’ and the CJEU has roided no lear anser. s desried the doate eneral in cattolon: have not been perceived or described as international human rights norms. See in particular Chapter I hile those ho faour a restritie interretation of the onet of imlementation of EU la in the Charter on solidarity rights, for example Art. on right to access to placement services; Art. 31 on sumit that that onet refers onl to a situation in hih a emer tate ats as a serant of fair and ust woring conditions; Art. 3 on environmental protection; and Art. 38 on consumer protection. the Union those ho faour a roader ie onsider that that onet refers more idel to a rom a human right perspective it is positive that the CU includes a broad range of rights including situation in hih national legislation falls ithin the soe of EU la. (inion of r doate economic and social rights and new, emerging rights. ut there are also certain gaps and shortcomings eneral ot deliered on 5 ril 2011 aras 11 in ase C10810 Iana cattolon) which can hinder effective protection of human rights in the U. hus it an e onluded that there urrentl eist legal unertaint aout hether and to hat etent o niersal scope of application the Charter alies to national measures that are onneted to EU la ut are not intended to imlement it diretl. uh a legal unertaint might affet the osition of indiiduals seeing to assert their irst, it must be stressed that the CU is not a generally applicable human rights convention, lie the fundamental rights efore a national udge (Fontanelli 2014 . 21). C. The CU only applies for U institutions and for ember States when implementing Union law. eneral limitation clase Art. 1(1) in the CU reads: he CFREU ontains a general limitation lause in rt. 52(1) hih alies to all the rights in the Charter: 1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the ember States only when they are n limitation on the eerise of the rights and freedoms reognised this Charter must e implementing Union law. They shall therefore respect the rights, observe the principles and roided for la and reset the essene of those rights and freedoms. uet to the rinile promote the application thereof in accordance with their respective powers. of roortionalit limitations ma e made onl if the are neessar and genuinel meet oeties of general interest reognised the Union or the need to rotet the rights and . This Charter does not establish any new power or tas for the Community or the Union, or freedoms of others. modify powers and tass defined by the Treaties.

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Unlie the Charter, most international human rights conventions only allow limitation of certain enumerated rights such as the right to privacy and association, but also specify that certain rights are of an absolute character with the consequence that they can neither be limited or derogated from.

istinction between rights and principles

The CEU distinguishes between rights and principles. The provisions in the Charter that epress a principle do not create any directly enforceable right. ursuant to rt. (

The provisions of this Charter which contain principles may be implemented by legislative and eecutive acts taen by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the eercise of their respective powers.

The distinction between rights and principles is unclear. rticle ( does not clarify which provisions in the Charter are to be interpreted as ‘rights’ and which only as ‘principles’ requiring legislative or executive implementation to be enforceable. Only three provisions in the Charter explicitly use the word ‘principle’: rt. (principle of equality between men and women rt. (sustainable development and rt. (proportionality and legality of criminal offences). Nevertheless, it is often suggested that ‘principles’ more broadly refers to economic, social and cultural rights (ouglasScott , p. .

cope and interpretation of the rights in the harter

bout half of the rights in the CEU are derived from the ECH. n order to avoid different human rights protection in Europe or more specifically in the CJEU and the European Court of Human ights (ECtH it follows from rt. ( in the CEU that rights in the Charter which correspond to rights guaranteed by the ECH, shall be given the same meaning and scope as that laid down under the ECH. However, it is also provided that this shall not prevent Union law from providing a more etensive protection than the ECH.

The CEU does not mae epress reference to the case law from the ECtH but the CJEU has held that it should follow clear and consistent urisprudence from the ECtH. (See e.g. Case C U c LE EC . Thus, even though the scope and interpretation of rights in the CEU and the ECH are to a large extent ‘harmonised’, there is an inherent risk of different standards when two different courts are interpreting the same standards.

n general it can be concluded that the CEU provides a strong legal basis for protection of human rights and more broadly fundamental rights within the EU. evertheless, there are certain shortcomings and ambiguities about the precise scope and level of protection, as described above. These shortcomings may eventually hinder the effective protection of human rights.

The accession of the EU to the ECH has been discussed since the late s. The accession became a legal obligation under the TEU (see rt. (. The legal basis for the accession is provided for by rt. (2) of the ECHR (‘the European Union may accede to this Convention’), as amended by Protocol No. 14 to the ECH which entered into force on June (Jacqu . Council of Europe Member States and

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Unlie the Charter, most international human rights conventions only allow limitation of certain the European Union finalised a draft accession agreement of the EU to the ECHR in pril 21, which is enumerated rights such as the right to privacy and association, but also specify that certain rights are of currently being examined by the CEU. an absolute character with the consequence that they can neither be limited or derogated from. n the present situation there is a potential lack of human rights protection since possible violations of the istinction between rights and principles ECHR committed by EU institutions cannot be examined by the ECtHR unless EU law has been implemented by some act on the ember tate territory. The CEU distinguishes between rights and principles. The provisions in the Charter that epress a principle do not create any directly enforceable right. ursuant to rt. ( The EU’s accession will undoubtedly strengthen the protection of human rights in Europe by submitting the EU’s legal system to independent external control. It will also close gaps in legal protection by giving The provisions of this Charter which contain principles may be implemented by legislative and citiens in the EU the same protection visvis acts of the EU as they presently enoy from member states. eecutive acts taen by institutions, bodies, offices and agencies of the Union, and by acts of inally, it will arguably also lead to a greater degree of coherence in the field of human rights protection Member States when they are implementing Union law, in the eercise of their respective powers. in Europe. n addition to the CREU and the ECHR the EU is also bound by general principles of law in EU The distinction between rights and principles is unclear. rticle ( does not clarify which provisions in tates. the Charter are to be interpreted as ‘rights’ and which only as ‘principles’ requiring legislative or executive implementation to be enforceable. Only three provisions in the Charter explicitly use the word ‘principle’: s laid down in rt. () of the EU, constitutional traditions common to the ember tates constitute rt. (principle of equality between men and women rt. (sustainable development and rt. general principles of the Union’s law. The CJEU has, particularly before the Charter became legally binding, (proportionality and legality of criminal offences). Nevertheless, it is often suggested that ‘principles’ more integrated human rights into the EU legal order by considering them as general principles of law. he broadly refers to economic, social and cultural rights (ouglasScott , p. . Court has often referred to and used the ECHR as an expression of common European constitutional cope and interpretation of the rights in the harter traditions and has only rarely made its own independent examination and determination of which constitutional traditions in ember tates that constitute general principles of law. bout half of the rights in the CEU are derived from the ECH. n order to avoid different human rights protection in Europe or more specifically in the CJEU and the European Court of Human ights (ECtH it n addition to the human and fundamental rights which are applicable within the EU as laid down in rt. follows from rt. ( in the CEU that rights in the Charter which correspond to rights guaranteed by of the EU, and described above in sections a)c), the EU can be bound by HR to the extent the EU the ECH, shall be given the same meaning and scope as that laid down under the ECH. However, it is ratifies international human rights conventions. also provided that this shall not prevent Union law from providing a more etensive protection than the ECH. he EU may, pursuant to a special procedure in itle of the EU, ratify or conclude agreements and conventions with third countries or international organisations. Ratified conventions become binding on The CEU does not mae epress reference to the case law from the ECtH but the CJEU has held that it the institutions of the Union and on ember tates when they are implementing EU law, see rt. 21 of should follow clear and consistent urisprudence from the ECtH. (See e.g. Case C U c LE the EU. EC . Thus, even though the scope and interpretation of rights in the CEU and the ECH are to a large extent ‘harmonised’, there is an inherent risk of different standards when two different courts he CEU has consistently held that once an international agreement concluded by the EU enters into are interpreting the same standards. force, the agreement forms an ‘integral part’ EU law (ee e.g. case 11 ageman 14 ECR 44). he Court has also ruled that ember tates are in violation of their obligations under EU law where they fail n general it can be concluded that the CEU provides a strong legal basis for protection of human rights to adopt measures necessary to implement an international agreement concluded by the EU. Hence, and more broadly fundamental rights within the EU. evertheless, there are certain shortcomings and international agreements entered into by the EU bind the ember tates by virtue of their duties under ambiguities about the precise scope and level of protection, as described above. These shortcomings may EU law and not international law (Craig and rca 211, p. ). eventually hinder the effective protection of human rights. he EU may, thus, ratify international human rights conventions and international humanitarian law The accession of the EU to the ECH has been discussed since the late s. The accession became a conventions, for example the four eneva conventions that have been ratified by all tates, including all legal obligation under the TEU (see rt. (. The legal basis for the accession is provided for by rt. EU ember tates (Naert 214). (2) of the ECHR (‘the European Union may accede to this Convention’), as amended by Protocol No. 14 to the ECH which entered into force on June (Jacqu . Council of Europe Member States and

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owever the EU is, with one recent exception, not party to any international human rights treaties. The EU ratified the U Convention on the ights of eople with isabilities in . It was the first comprehensive human rights treaty to be ratified by the EU as a whole. t the time of ratification the U convention was signed by all EU ember tates and ratified by of these and thus not formally binding in all EU ember tates.

The EU ratification of the U isability Convention can illustrate the fear raised by certain ember tates, namely that international human rights conventions and protocols they have chosen not to ratify – maybe deliberately for good reasons – would become applicable in their national legal order by means of EU law. Obligations can be said to be entering ‘through the backdoor’.

It is feasible that the EU may want to consider ratifying additional I conventions in the future and it can be envisaged that the process and conseuence of EU ratification of such conventions might cause additional legal uncertainty.

The EU’s human rights obligations in third States It is proclaimed in Art. 3 of the TEU that the EU in its relations with third countries (‘the wider world’) shall contribute to the protection of human rights, in particular the rights of the child

In its relations with the wider world, the Union shall uphold and promote its values and contribute to the protection if its citiens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United ations Charter.

Furthermore, pursuant to Art. 21 of the TEU the ‘Union’s action on the international scene shall be guided by’, inter alia, international law and human rights. ocalled human rights clauses are also included in many bilateral trade and cooperation agreements.

It is noteworthy that the TEU uses the term ‘human rights’ when describing the EU’s relationship with third States. Whereas the term ‘fundamental rights’ – used in the TEU when regulating human rights within the Union – is not used in the description of the EU’s relationship with third States.

The EU is clearly bound by human and fundamental rights within the EU (see section above and the Union shall, as laid down in the TEU, contribute to the protection of human rights in its external relations. But to what extent is the EU itself legally bound by the EU’s human rights obligations, when acting in third countries

It was concluded by the Council ecision EC, J . or more information see httpeuropa.eurapidpressreleaseIen.htm (last accessed on ay .

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owever the EU is, with one recent exception, not party to any international human rights treaties. The The geographical scope of ember States’ international human rights obligations has been very much EU ratified the U Convention on the ights of eople with isabilities in . It was the first debated in recent years (see e.g. ilanoic 21 with further references). It is laid down in Art. 1 in the comprehensive human rights treaty to be ratified by the EU as a whole. t the time of ratification the U ECHR that Member States shall secure ECHR rights to ‘everyone within the jurisdiction of the State’. convention was signed by all EU ember tates and ratified by of these and thus not formally The Et has dealt with a number of cases on the extraterritorial application of the E and has clearly binding in all EU ember tates. established that the Convention is applicable extraterritorially when Member States’ exercise effectie The EU ratification of the U isability Convention can illustrate the fear raised by certain ember tates, control oer territor or indiidals on another State’s territory (See leini U, Et, , uly 211). namely that international human rights conventions and protocols they have chosen not to ratify – maybe deliberately for good reasons – would become applicable in their national legal order by means of EU law. ikewise, it has been debated whether the FEU is applicable when the EU – or ember States implementing EU law – are acting in third countries, for example in relation to EU delegations and Obligations can be said to be entering ‘through the backdoor’. missions, Frontex, etc. but neither the EU nor the Et has ruled on the uestion. It is feasible that the EU may want to consider ratifying additional I conventions in the future and it can be envisaged that the process and conseuence of EU ratification of such conventions might cause ursuant to Art. 1 of the FEU the harter is applicable to all EU institutions and ember States when implementing EU law. There are no territorial or urisdictional delimitation as in Art. 1 of the E and additional legal uncertainty. most other international human rights instruments. The EU’s human rights obligations in third States It is proclaimed in Art. 3 of the TEU that the EU in its relations with third countries (‘the wider world’) shall Against this background it is argued by some scholars that there are no territorial limits to the application contribute to the protection of human rights, in particular the rights of the child of the harter. The fundamental rights obligations follow EU actiities as well as ember State actiities, when implementing EU law including in third States. This follows from the fact that EU human rights In its relations with the wider world, the Union shall uphold and promote its values and contribute obligations are applicable in all areas goerned by EU law, or as the EU puts it ‘the applicability of to the protection if its citiens. It shall contribute to peace, security, the sustainable development European Union law entails the applicability of the fundamental rights guaranteed by the Charter [CFREU]’ of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of (ase 11 kerberg Fransson (rand hamber, udgment 2 February 213) 21). The only poverty and the protection of human rights, in particular the rights of the child, as well as to the threshold reuirement, therefore, is whether EU law applies to the particular circumstances (orenoax strict observance and the development of international law, including respect for the principles and ostello 21 1). of the United ations Charter. Other scholars argue with reference to Art. 2(3) in the harter, discussed aboe section 1 a), that the Furthermore, pursuant to Art. 21 of the TEU the ‘Union’s action on the international scene shall be guided FEU must be interpreted in the light of the E, limiting the scope of application of the harter to by’, inter alia, international law and human rights. ocalled human rights clauses are also included in individuals under the ‘jurisdiction’ of the EU. As spelled out by the ECtHR that would mean that the CFREU many bilateral trade and cooperation agreements. is only applicable in situations where the EU exercises effectie control oer territor or indiidals on another State’s territory (Nowak and Charbord 2014: 77). It is noteworthy that the TEU uses the term ‘human rights’ when describing the EU’s relationship with third States. Whereas the term ‘fundamental rights’ – used in the TEU when regulating human rights In this connection it also unclear and debateable whether the EU – and ember States implementing EU within the Union – is not used in the description of the EU’s relationship with third States. law – are bound extraterritorially by fundamental rights that are rooted in the constittional traditions of ember tates, which constitute general principles of the Union’s law arguably applicable without any The EU is clearly bound by human and fundamental rights within the EU (see section above and the territorial limitations, see Art. (3) of the TEU. Union shall, as laid down in the TEU, contribute to the protection of human rights in its external relations. But to what extent is the EU itself legally bound by the EU’s human rights obligations, when acting in third Another pertinent uestion which is becoming increasingly releant due to technological deelopment is countries the extent to which human and fundamental rights are applicable when the EU is carrying out an act on EU territory which directly leads to a human rights iolation for indiiduals present on the territory of a third State – e.g. crossborder pollution, data interception, drones etc. – the so called etraterritorial effect of human rights obligations. The Et has found in a number of cases that the E is applicable if there is a ‘direct and immediate causality’ between an act a ember State carries out on its own territory and a human right iolation in another State (see by way of illustration ndrea re, 2). It was concluded by the Council ecision EC, J . or more information see httpeuropa.eurapidpressreleaseIen.htm (last accessed on ay .

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he extraterritorial effect of the UN Covenant on Civil and olitical Rights (CCR) has also been recognised by the UN Human Rights Committee (HRC). ursuant to the HRC States parties also violate the right to security of persons under Art. of the CCR if they from their own territory purport to exercise jurisdiction over a person outside their territory by issuing a fatwa or similar death sentence authorising the killing of the victim (UN Human Rights Committee, onclding obserations, slamic Republic of ran 12, para. 2.).

t is evident that legal uncertainty about whether the EU is bound by human rights obligations when acting in third States can hinder the effective protection of human rights.

EU human rights obligations and the relationshi ith other bodies o international la EU Member States and, indeed, the EU as an international organisation are affected by other legal obligations in international law. his relationship can give rise to uncertainty about the scope and level of protection.

here may be situations where EU fundamental rights cannot be harmonised with other obligations in international law and this raises the uestion of whether fundamental rights in the CFREU can be watered down or even superseded by other obligations in international law

Article 10 of the UN Charter provides for the supremacy of Charter obligations over any other obligation in international law (‘international agreements’). In the adi case the CEU had to deal with a conflict between right to a fair and effective judicial hearing, see Art. 47 in the CFREU, and UN Charter obligations concerning freeing of assets without any hearing (Case C–4020 and C–410, . adi and l araaat International ondation oncil and ommission [200] ECR –1).

he CEU stated (cited case law omitted):

20 he Court will now consider the heads of claim in which the appellants complain that the Court of First nstance, in essence, held that it followed from the principles governing the relationship between the international legal order under the United Nations and the Community legal order that the contested regulation, since it is designed to give effect to a resolution adopted by the Security Council under Chapter of the Charter of the United Nations affording no latitude in that respect, could not be subject to judicial review of its internal lawfulness, save with regard to its compatibility with the norms of jus cogens, and therefore to that extent enjoyed immunity from jurisdiction.

21 n this connection it is to be borne in mind that the Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC reaty, which established a complete system of legal remedies and procedures designed to enable the Court of ustice to review the legality of acts of the institutions.

22 t is also to be recalled that an international agreement cannot affect the allocation of powers fixed by the reaties or, conseuently, the autonomy of the Community legal system, observance of which is ensured by the Court by virtue of the exclusive jurisdiction conferred

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he extraterritorial effect of the UN Covenant on Civil and olitical Rights (CCR) has also been recognised on it rtile risition that the ort has moreoer alrea hel to orm art o by the UN Human Rights Committee (HRC). ursuant to the HRC States parties also violate the right to the er onations o the ommnit. security of persons under Art. of the CCR if they from their own territory purport to exercise jurisdiction over a person outside their territory by issuing a fatwa or similar death sentence authorising In aition aoring to settle aselaw namental rights orm an integral art o the general riniles o law whose oserane the ort ensres. or that rose the ort the killing of the victim (UN Human Rights Committee, onclding obserations, slamic Republic of ran raws insiration rom the onstittional traitions ommon to the emer tates an rom 12, para. 2.). the gielines slie international instrments or the rotetion o hman rights on whih the emer tates hae ollaorate or to whih the are signatories. In that regar t is evident that legal uncertainty about whether the EU is bound by human rights obligations when acting the has seial signiiane. in third States can hinder the effective protection of human rights. It is also lear rom the aselaw that reset or hman rights is a onition o the lawlness EU human rights obligations and the relationshi ith other bodies o o ommnit ats an that measres inomatile with reset or hman rights are not international la aetale in the ommnit. EU Member States and, indeed, the EU as an international organisation are affected by other legal obligations in international law. his relationship can give rise to uncertainty about the scope and level of It ollows rom all those onsierations that the oligations imose an international protection. agreement annot hae the eet o reiing the onstittional riniles o the reat whih inle the rinile that all ommnit ats mst reset namental rights that here may be situations where EU fundamental rights cannot be harmonised with other obligations in reset onstitting a onition o their lawlness whih it is or the ort to reiew in the international law and this raises the uestion of whether fundamental rights in the CFREU can be watered ramewor o the omlete sstem o legal remeies estalishe the reat. down or even superseded by other obligations in international law In this regar it mst e emhasise that in irmstanes sh as those o these ases the Article 10 of the UN Charter provides for the supremacy of Charter obligations over any other obligation reiew o lawlness ths to e ensre the ommnit iatre alies to the in international law (‘international agreements’). In the adi case the CEU had to deal with a conflict ommnit at intene to gie eet to the international agreement at isse an not to the between right to a fair and effective judicial hearing, see Art. 47 in the CFREU, and UN Charter obligations latter as sh. concerning freeing of assets without any hearing (Case C–4020 and C–410, . adi and l ith more artilar regar to a ommnit at whih lie the onteste reglation is araaat International ondation oncil and ommission [200] ECR –1). intene to gie eet to a resoltion aote the erit onil ner hater II o the harter o the nite ations it is not thereore or the ommnit iatre ner he CEU stated (cited case law omitted): the elsie risition roie or rtile to reiew the lawlness o sh a resoltion aote an international o een i that reiew were to e limite to 20 he Court will now consider the heads of claim in which the appellants complain that the eamination o the omatiilit o that resoltion with s ogens. Court of First nstance, in essence, held that it followed from the principles governing the relationship between the international legal order under the United Nations and the oweer an gment gien the ommnit iatre eiing that a ommnit Community legal order that the contested regulation, since it is designed to give effect to a measre intene to gie eet to sh a resoltion is ontrar to a higher rle o law in the resolution adopted by the Security Council under Chapter of the Charter of the United ommnit legal orer wol not entail an hallenge to the rima o that resoltion in Nations affording no latitude in that respect, could not be subject to judicial review of its international law… internal lawfulness, save with regard to its compatibility with the norms of jus cogens, and therefore to that extent enjoyed immunity from jurisdiction. . It ollows rom the oregoing that the ommnit iatre mst in aorane with the owers onerre on it the reat ensre the reiew in rinile the ll reiew o the 21 n this connection it is to be borne in mind that the Community is based on the rule of law, lawlness o all ommnit ats in the light o the namental rights orming an integral inasmuch as neither its Member States nor its institutions can avoid review of the conformity art o the general riniles o ommnit law inling reiew o ommnit measres of their acts with the basic constitutional charter, the EC reaty, which established a complete whih lie the onteste reglation are esigne to gie eet to the resoltions aote system of legal remedies and procedures designed to enable the Court of ustice to review the erit onil ner hater II o the harter o the nite ations. the legality of acts of the institutions. ene the rolaime the onstittional atonom an hegemon o the legal orer. he is 22 t is also to be recalled that an international agreement cannot affect the allocation of powers a ommnit ase on the rle o law an reset or hman rights is an integral art o the legal fixed by the reaties or, conseuently, the autonomy of the Community legal system, orer. hereore harter oligations ol not oerrle namental rights within the . n that observance of which is ensured by the Court by virtue of the exclusive jurisdiction conferred

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aron te ort oniere te erit o te ae an annlle te onil relation implementing the UN resolution freezing Mr. Kadi’s assets since it was in violation of Mr. Kadi’s right to eene eeiall te rit to e ear an te rinile o eetie iial rotetion

e ran aer o te t i rrentl onierin a iilar ae were te aliant are laiin tat te oniation o teir aet rant to a inin reoltion ro te erit onil a een orere in te aene o an roere olin wit teir rit to a air earin ner rt in te ee t llimi and ontana anagement I witerland l o reerre to te ran aer in ril

onlit etween an oter oliation ner international law an alo e eniae in oter area o international law e in relation to international law on onterterrori international anitarian law et

ho is resonsible or a ossible human rights iolation the EU or ember States n arallel wit te inreae oetene o te tere a e ore itation were te i atin toeter wit a eer tate an were teir oint ation lea to a an rit iolation

As laid down in Art. 14 of the ILC’s draft articles on the responsibility of international organisations from an international oraniation lie te wi ai or ait a tate or anoter international oraniation in te oiion o an internationall wronl at it e internationall reonile or oin o

n ti itation it it e ite i it i te te eer tate or ot tat are reonile or te an rit iolation ee etion ae een oniere te an te t ee e an an otrao

rterore aeion to te ol rot a ner o iilt an nettle etion a to te iiion o reoniilit or an rit iolation etween te an eer tate or te ot art law i ileente eer tate n oe itation eer tate are not let wit an oie or iretion a to ow law ol e ileente an te reoniilit or a oile an rit iolation wol ee to ret wit te n oter itation oweer te eer tate it e let wit a iretion wen ileentin te law an te reoniilit or a oile an rit iolation ol e attrite to te eer tate or tere a e a itation o are reoniilit etween te an te eer tate

te ation leain to te iolation o an or naental rit an e attrite to te it it e etione weter eer tate ae roie ai or aitane to te wit te oneene tat eer tate an alo e el aontale or te an rit iolation ee te rinile in rt 58 of the ILC’s draft Articles on Responsibility of International Organizations dealing with this type of are reoniilit

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aron te ort oniere te erit o te ae an annlle te onil relation Responsibility of a tate in connection with the conduct of an international organization implementing the UN resolution freezing Mr. Kadi’s assets since it was in violation of Mr. Kadi’s right to eene eeiall te rit to e ear an te rinile o eetie iial rotetion Article 58 Aid or assistance by a tate in the commission of an internationally wrongful act by an international organization e ran aer o te t i rrentl onierin a iilar ae were te aliant are laiin tat te oniation o teir aet rant to a inin reoltion ro te erit onil a 1. A tate which aids or assists an international organization in the commission of an een orere in te aene o an roere olin wit teir rit to a air earin ner rt in internationally wrongful act by the latter is internationally responsible for doing so if te ee t llimi and ontana anagement I witerland l o a the tate does so with nowledge of the circumstances of the internationally wrongful act and reerre to te ran aer in ril b the act would be internationally wrongful if committed by that tate. onlit etween an oter oliation ner international law an alo e eniae in oter area o international law e in relation to international law on onterterrori international . An act by a tate member of an international organization done in accordance with the rules of anitarian law et the organization does not as such engage the international responsibility of that tate under the terms of this article. ho is resonsible or a ossible human rights iolation the EU or ember States onlusion n arallel wit te inreae oetene o te tere a e ore itation were te i atin It is evident from the U the reaty on the unctioning of the uropean Union U and the CRU toeter wit a eer tate an were teir oint ation lea to a an rit iolation that fundamental and human rights are an important and integral part of the U both in its internal and eternal activities. here is in the U U and the CRU a strong legal basis for securing human and As laid down in Art. 14 of the ILC’s draft articles on the responsibility of international organisations from fundamental rights in EU’s internal and external behaviour. an international oraniation lie te wi ai or ait a tate or anoter international oraniation in te oiion o an internationall wronl at it e internationall reonile or It is notable that when the U deals with the protection of rights inside the U it uses the term oin o ‘fundamental rights’ including rights which traditionally have not been conceived as or described as human rights in international human rights conventions see e.g. the reamble and Art. of the U. n ti itation it it e ite i it i te te eer tate or ot tat are reonile or te Whereas the more narrow term ‘human rights’ is used in the TEU in relation to the EU’s contact with third an rit iolation ee etion ae een oniere te an te t ee e States (‘the wider world’), see Art. and 1 of the U. an an otrao he accession of the U to the CR and the ratification of additional international human rights rterore aeion to te ol rot a ner o iilt an nettle etion a to conventions are important legal factors that can enable the protection of IHRL in EU’s internal and external te iiion o reoniilit or an rit iolation etween te an eer tate or te ot behaviour. art law i ileente eer tate n oe itation eer tate are not let wit an oie or iretion a to ow law ol e ileente an te reoniilit or a oile an ven though there is a strong legal basis for respecting and protecting human rights in the U both rit iolation wol ee to ret wit te n oter itation oweer te eer tate it e internally and eternally it is possible to identify certain gaps and shortcomings. hortcomings that might let wit a iretion wen ileentin te law an te reoniilit or a oile an rit create legal uncertainty and hinder an effective protection of human rights in U activities. iolation ol e attrite to te eer tate or tere a e a itation o are reoniilit etween te an te eer tate here are certain ambiguities in the CRU for eample on the distinction between rights and principles and on the scope and interpretation of rights in the Charter isis similar rights in the CR. te ation leain to te iolation o an or naental rit an e attrite to te it it urthermore the precise scope of application of the Charter when the U and Member tates e etione weter eer tate ae roie ai or aitane to te wit te oneene implementing U law are acting in third tates is debated and not fully agreed upon. inally the uestion tat eer tate an alo e el aontale or te an rit iolation ee te rinile in rt about attribution of responsibility between U and Member tates raises a number of comple and 58 of the ILC’s draft Articles on Responsibility of International Organizations dealing with this type of unsettled legal uestions. are reoniilit ome of these legal uestions may ultimately be dealt with and clarified by the CU on a case by case basis – and eventually also by the CtR when the U has acceded to the Convention – but this might tae

53 E elierable o time and it can be uestioned whether these issues would better be dealt with by a political body – lie the EU ouncil and arliament – than a court.

In any event, further research and analysis is reuired particularly concerning the scope of application of the REU shared human rights responsibility between the EU and ember States and the possibility and conseuences of EU ratification of other international human rights and humanitarian law conventions.

E ibliograh

egal and oli instruments The EU harter of undamental Rights,

The European onvention on Human Rights,

The International Law ommission, raft rticles on the Responsibility of International rganiations,

The Treaty of the European Union,

The Treaty on the unctioning of the European Union,

The U onvention on the Rights of eople with isabilities

asela llimi and ontana anagement I witerland EtHR, ppl. o. , referred to the rand hamber in pril

leini U, EtHR, , ppl. o. , uly

ndrea re, EtHR, ppl. o. , une .

ase – and –, . adi and l araaat International ondation oncil and ommission ER I–

EU, an end en Loos, ase ,

ase , achaf ER

ase , Ellini adiophonia ileorassi ER I

ase Iana cattolon

ase U c LE ER

ase ageman ER

ase erberg ransson (rand hamber, udgment ebruary )

54 E elierable o E elierable o time and it can be uestioned whether these issues would better be dealt with by a political body – lie iterature the EU ouncil and arliament – than a court. In any event, further research and analysis is reuired particularly concerning the scope of application of EU Law et ases and aterials the REU shared human rights responsibility between the EU and ember States and the possibility and conseuences of EU ratification of other international human rights and humanitarian law he International repsonsibilit of the Eropean Union conventions. E ibliograh he EU harter of ndamental ights : from declaration to binding instrment egal and oli instruments The EU harter of undamental Rights, Etraterritorial pplication of man ights reaties The European onvention on Human Rights, he EU harter of ndamental ights: The International Law ommission, raft rticles on the Responsibility of International rganiations, commentar onflicts of rights in the Eropean Union : a theor of spranational addication The Treaty of the European Union,

The Treaty on the unctioning of the European Union, Eropean Union hman rights law: he dnamics of interpretation and contet The U onvention on the Rights of eople with isabilities he protection of fndamental rights in the EU after asela Lisbon llimi and ontana anagement I witerland EtHR, ppl. o. , referred to the rand hamber in pril he Implementation of the harter b the Instittions of the Eropean Union leini U, EtHR, , ppl. o. , uly he EU harter of ndamental ights: commentar ndrea re, EtHR, ppl. o. , une . Lax, V. and Costello, C. (2014) ‘The Extraterritorial Application of the EU Charter of ase – and –, . adi and l araaat International ondation oncil and Fundamental Rights: From Territoriality to Facticity, the Effectiveness Model‘, in: Peers, S., Hervey, T. K., ommission ER I– he EU harter of ndamental ights: commentar EU, an end en Loos, ase ,

ase , achaf ER Nowak, M. and Charbord, A. (2014) ‘Prohibition of Torture and Inhumane or Degrading Treatment or Punishment’, in: Peers, S., Hervey, T. K., Kenner, J., and Ward, A. (eds.) he EU harter of ndamental ase , Ellini adiophonia ileorassi ER I ights: commentar

ase Iana cattolon he EUs Eternal elations egime: ltileel ompleit in an Epanding Union ase U c LE ER ase ageman ER

ase erberg ransson (rand hamber, udgment ebruary )

55 E elierable o

Rosas, A. (2014) ‘The Charter and Universal Human Rights Instruments’, in: Peers, S., Hervey, T. K., Kenner, J., and Ward, A. (eds.) he EU harter of ndamental ights: commentar xford: Hart Publishing, pp. 1100.

De Búrca, G. (2011). ‘The road not taken: the European Union as a global human rights actor’, merican ornal of International Law. 10 (4): 4.

DouglasScott, S. (2011) ‘The European Union and Human Rights after the Treaty of Lisbon’, man ights Law eiew, vol. 11, no. 4, p. 42.

Fontanelli, F. (2014). ‘National Measures and the Application of the EU Charter of Fundamental Rights – Does curia.eu Know iura.eu?’ man ights Law eiew, 2014, 14, 21–2.

Jacqué, J. P. (2011). ‘The Accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms’, ommon aret Law eiew, vol. 4, pp. 102.

Naert, F. (2014). ‘bserance of international hmanitarian law b forces nder the command of the European Union’, International Review of the Red Cross, June 2014, pp 1.

56 E elierable o E eierae o

Rosas, A. (2014) ‘The Charter and Universal Human Rights Instruments’, in: Peers, S., Hervey, T. K., Eonomi ators Kenner, J., and Ward, A. (eds.) he EU harter of ndamental ights: commentar xford: Hart Publishing, pp. 1100. ntrodution The chapter will deal with the economic factors conducive to or preventing human rights protection and consolidation in the European Union (EU). In the contet of this chapter, economic factors refer to De Búrca, G. (2011). ‘The road not taken: the European Union as a global human rights actor’, merican situations and circumstances with respect to resource endowments and allocation (land, labour, capital, ornal of International Law. 10 (4): 4. and natural resources) that affect human rights outcomes. Economic policies and institutional change are DouglasScott, S. (2011) ‘The European Union and Human Rights after the Treaty of Lisbon’, man often a result of broader changes in economic contets, for instance the economic crisis. Therefore, the ights Law eiew, vol. 11, no. 4, p. 42. selected factors under review in this chapter will often represent a mi of broader trends influencing them and specific policy changes. Economic factors, representing a very dynamic field, are hard to understand Fontanelli, F. (2014). ‘National Measures and the Application of the EU Charter of Fundamental Rights – without taking into account the internal policy change in the EU. Such policy change in conunction with Does curia.eu Know iura.eu?’ man ights Law eiew, 2014, 14, 21–2. other causes will potentially affect economic rights (rights to and conditions of work, and rights to organise and strike) but possibly also social rights (education, health, social security, housing, and rights to Jacqué, J. P. (2011). ‘The Accession of the European Union to the European Convention on Human Rights adequate living standards). Even cultural rights around enoyment of scientific progress and cultural and Fundamental Freedoms’, ommon aret Law eiew, vol. 4, pp. 102. heritage and livelihoods may potentially be affected by economic policies. Changing economic Naert, F. (2014). ‘bserance of international hmanitarian law b forces nder the command of the circumstances may, however, also impact on access to institutions and may significantly affect the European Union’, International Review of the Red Cross, June 2014, pp 1. participation of specific groups into the conduct of public affairs.

The chapter will deal with specific economic factors in focus in the recent literature and is based on recent change in economic conditions and circumstances in the Union. The point of departure for the discussion is the situation in Europe after 200 when the economic and financial crisis developed. The emergence of the crisis was a defining event that altered policy implementation inerna, created situations of severe

austerity and increasing unemployment in a number of countries, and played havoc with social and livelihood opportunities. In terms of eerna human rights implications, the picture is more nuanced, but important in specific areas such as development and trade situations.

The selection of factors in this chapter is based on the recent scientific and official literature. Under each issue discussed, this chapter shall seek to address:

 Policy and institutional change after 200 affecting a number of selected economic factors  Human rights implications of the changing circumstances.

hat are the most pertinent human rights implications of economic change? The economic literature overview provides the following factors as most important:

 Economic decline and the threat to adequate living standards  The functioning and legitimacy of the internal market  Poverty and social eclusion  Employment  Development and trade.

 The author of this chapter is Dr. Hanstto Sano, Senior Researcher, the Danish Institute for Human Rights.

57 E eierae o

These factors structure the analysis in the chapter. Some of them have overlapping human rights dimensions. Economic decline relates more to adequate living standards, while poverty may relate more to dignity and eclusions as well as to adequate living standards. Many of them relate to economic, social and cultural rights in particular, and typically, changes in economic factors result in challenges to social rights particularly: right to social security, threats of eclusion from particular groups, and rights to housing and health. Nevertheless, economic rights specifically are also in focus, most seriously the right to work. The issue of trade may be important in development contets as well as in the contet of economic decline.

However, before entering into a discussion of the individual factors, an overview of the general economic contet as it results from the recent economic crisis is presented in section B.

lobal and Euroean ontet – The eonomi risis and its onslaught on the Euroean eonom The global financial crisis brought about by falls in housing prices in the United States during 2000 and the growing number of mortgage defaults resulted in a liquidity and debt crisis in Europe and in the US. This spilled over in a loss of confidence globally resulting in a decline of the ‘real’ economy: the crisis was originally financial, but turned into a global economic crisis as well. A vicious cycle of falling investments, loss of employment, and negative or low growth ensued. Globally, while growth rates reached 4 across the world during 2004200, it fell to 1.4 and –2.1 respectively during 200 and 200 (orld Bank 2014). In the EU, a situation of low or negative growth was an important policy determinant and with that, a climate of austerity emerged.

The economic crisis forms the point of departure of the present analysis of factors. It had multiplying effects in terms of how the internal market worked, how the economic climate evolved after 200, and how trends in poverty and employment developed negatively. The economic and financial crisis globally and in Europe forced the EU to address the financial sector, tighten fiscal controls, and institute stricter compliance in monetary policy. As indicated above, in some Member States, the situation created austerity situations which threatened the economic and social rights of some groups in particular. However, the crisis also made it increasing relevant to adapt trade policies to a changing world market.

EU eonomi ators enabling or hindering the rotetion o human rights The analysis of factors below will deal with five factors: the declining economy and its human rights implications, the functioning of the internal market, poverty and social eclusion, employment, and development and trade.

58 E eierae o E eierae o

These factors structure the analysis in the chapter. Some of them have overlapping human rights dimensions. Economic decline relates more to adequate living standards, while poverty may relate more The real growth rate of the uro area averaged per annum in whereas it reached to dignity and eclusions as well as to adequate living standards. Many of them relate to economic, social on average The decline in real was significant after owever behind the and cultural rights in particular, and typically, changes in economic factors result in challenges to social declining growth trend is not only the financial crisis but also declining economic productivity and ageing rights particularly: right to social security, threats of eclusion from particular groups, and rights to populations uropean ommission a : n terms of investments there was a reduction housing and health. Nevertheless, economic rights specifically are also in focus, most seriously the right in total investments in the between and etween and investments fell to work. The issue of trade may be important in development contets as well as in the contet of from a pea of to of uropean ommission b : This trend was largely economic decline. driven by a sharp fall in private investments s indicated above these trends induced policy changes which in turn affected human rights in the generally but with a particular impact in some countries However, before entering into a discussion of the individual factors, an overview of the general economic especially with respect to economic and social rights contet as it results from the recent economic crisis is presented in section B. The trade balance was negative during most years from at the time of the enlargement This was lobal and Euroean ontet – The eonomi risis and its due to a deficit of trade in goods whereas the trade balance in services was positive uring the onslaught on the Euroean eonom combined trade deficit reached million falling to a deficit of almost million in The global financial crisis brought about by falls in housing prices in the United States during 2000 and uropean ommission e The post economic crisis did not have a notable impact on the the growing number of mortgage defaults resulted in a liquidity and debt crisis in Europe and in the US. total trade deficits This spilled over in a loss of confidence globally resulting in a decline of the ‘real’ economy: the crisis was originally financial, but turned into a global economic crisis as well. A vicious cycle of falling investments, loss of employment, and negative or low growth ensued. Globally, while growth rates reached 4 across The global financial crisis that erupted in full force in late challenged the eisting architecture of the world during 2004200, it fell to 1.4 and –2.1 respectively during 200 and 200 (orld Bank financial services regulation and supervision in the host of new regulatory initiatives were taen by 2014). In the EU, a situation of low or negative growth was an important policy determinant and with that, the as a result ew rules were introduced and eisting rules were substantially amended which mainly concerned baning securities marets and financial supervision s far as baning was concerned a climate of austerity emerged. the global financial crisis brought into the spotlight the inadeuacy of the eisting eposit uarantee The economic crisis forms the point of departure of the present analysis of factors. It had multiplying cheme directive t the pea of the crisis the ommission proposed legislative changes concerning effects in terms of how the internal market worked, how the economic climate evolved after 200, and the directive These changes which were hurriedly agreed to in represented an emergency how trends in poverty and employment developed negatively. The economic and financial crisis globally measure designed to restore depositors’ confidence by raising the minimum level of coverage for deposits and in Europe forced the EU to address the financial sector, tighten fiscal controls, and institute stricter from to compliance in monetary policy. As indicated above, in some Member States, the situation created austerity situations which threatened the economic and social rights of some groups in particular. uring the financial crisis several large bans were bailed out with public funds because they were However, the crisis also made it increasing relevant to adapt trade policies to a changing world market. considered ‘too big to fail’ n une the ommission adopted a legislative proposal for ban recovery and resolution designed to avoid government bailout of large bans in the future uropean ommission EU eonomi ators enabling or hindering the rotetion o p : The harmonised resolution tools and powers outlined in the directive were designed to human rights ensure that national authorities in all ember tates have a common toolit and roadmap to manage the The analysis of factors below will deal with five factors: the declining economy and its human rights failure of bans The legislation would raise contributions from bans proportionate to their liabilities and implications, the functioning of the internal market, poverty and social eclusion, employment, and ris profiles and would not be used to bail out a ban uaglia : development and trade. t the uropean level urope’s fiscal compact of 2012 was one important response to the economic and financial crisis t was formally embodied in the Treaty on tability oordination and overnance in the conomic and onetary nion T signed by all members of the with the eception of the nited

uropean ommission conomic and inancial ffairs uarer epor on e Euro rea no igures are covering countries or the growth rate see urostats Table on eal growth uropean ommission

59 E eierae o

indom and the ech eplic he compact was schedled to e actiated in anar 201 he compact reflects the latest stae in a historical trend attemptin to impose tihter fiscal control in rope t sees to limit the sie of fiscal deficits in emer tates to no more than of and the amont of det to no more than 0 of ird and andilaras 201 12

he ropean entral an introdced the triht onetar ransactions drin 2012 as a contermeasre to speclatie prchases of onds in detridden emer tates rin 2012 the ropean tailit echanism was also introdced as a means to ensre financial stailit in the ro area his instrment complemented the 2010 ropean inancial tailit acilit which made it possile to renew loans for instance in reece erdn 201 1

These measures are all indicative of stronger economic control and integration. The era of ‘integration by stealth’ had revealed its limits (Majone oted in atali 2010 102 hese policies also tended to pt the rope 2020 trate introdced in 2010 in the acrond somewhat de to the acteness of crisis measres raer et al 2010 12 he rope 2020 trate emphasised smart sstainale and inclsie rowth he trate intended to delier hih leels of emploment social cohesion and hih prodctiit n the sections elow it will ecome apparent that the economic and financial crisis pt these oecties in some eopard

ocalled asterit policies and measres to conter the economic crisis were also introdced in a nmer of countries after 2008, partly as a result of the EU’s fiscal and monetary measures. These policies have een the oect of mch criticism from hman rihts and ciil societ actors t is one of the economic polic areas that hae met with the stronest oections from hman rihts rops eiewin policies in si of the economicall worst hit contries the ropean ommission plished an oeriew of the asterit measres introdced in stonia reland reece pain ortal and the nited indom n most contries asterit measres too the form of some comination of 1 redctions in cash enefits and plic pensions 2 increases in direct taes and contritions increases in indirect taes redctions in plic ependitre that hae an indirect impact on the welfare of hoseholds sin them redctions in plic ependitre sch as defence spendin cts in plic sector pa and cts in plic sector emploment allan et al 2011

ternall in terms of trade and inestment policies an important rationale in trade polic is economic rowth and o creation he is the iest eporter in the world and the larest econom ropean ommission 2010 t is howeer anticipated in the ommission that mch of the rowth in international trade will e enerated otside rope especiall in ast and oth sia id ome of the oecties in trade polic are therefore refocsed on wellnown sects ie lieralisation of marets standardisation and competitie capacities oweer other aspects of trade polic addressin the necessar coherence etween internal and eternal strateies are also prioritised and ale elements present in the rope 2020 trate are incorporated smart rowth t also inclsie rowth with emphasis on principles of hman rihts enironment protection and ood oernance id olicies are also eared towards fair trade areements for instance with oth orea recentl and completion of the oha rond neotiations of the orld rade raniation ects nder oha inclde aricltral and nonaricltral maret access intellectal propert rihts and dispte settlement 201 ac of

60 E eierae o E eierae o

indom and the ech eplic he compact was schedled to e actiated in anar 201 he progress under the T and oha made the EU lift a moratorium on free trade agreements during the compact reflects the latest stae in a historical trend attemptin to impose tihter fiscal control in rope second half of the 2000s decade, a shift hich led the EU to formulate rae ro an or air in t sees to limit the sie of fiscal deficits in emer tates to no more than of and the amont of 200 (European ommission (j 200 hnlid 20 20 det to no more than 0 of ird and andilaras 201 12 Trade and foreign direct investment are closely lined. The isbon Treaty provides for the Union to he ropean entral an introdced the triht onetar ransactions drin 2012 as a contribute to the progressive abolition of restrictions on foreign direct investment. The Treaty grants the contermeasre to speclatie prchases of onds in detridden emer tates rin 2012 the Union eclusive competence to that effect. The ommission sees foreign direct investments into ropean tailit echanism was also introdced as a means to ensre financial stailit in the production or business as essential in generating economic groth, jobs, and reducing poverty (European ro area his instrment complemented the 2010 ropean inancial tailit acilit which ommission ( 20. t is argued by the ommission that an effective global supply chain cannot eist made it possile to renew loans for instance in reece erdn 201 1 ithout the vital support of transport, telecommunications, financial, business, and professional services. ervices represent 0 of orld output, but only a fifth of orld trade. These measures are all indicative of stronger economic control and integration. The era of ‘integration by stealth’ had revealed its limits (Majone oted in atali 2010 102 hese policies also tended to pt the rope 2020 trate introdced in 2010 in the acrond somewhat de to the acteness of crisis The economic decline and the ensuing policy changes impacted economic and social rights in particular, measres raer et al 2010 12 he rope 2020 trate emphasised smart sstainale and such as the right to social security (U rt. 22, the right to an adeuate standard of living (U rt. inclsie rowth he trate intended to delier hih leels of emploment social cohesion and hih 2, and the right of an access to services of general (economic interest (EU harter rt. . lso, rts. prodctiit n the sections elow it will ecome apparent that the economic and financial crisis pt 20 and 2 of the harter of undamental ights on euality and nondiscrimination may be affected. these oecties in some eopard n terms of the impact of the economic and financial crisis on social security and protection, atali ocalled asterit policies and measres to conter the economic crisis were also introdced in a nmer analyses EU coordination on pension policy. The tability and roth act (its most recent version of of countries after 2008, partly as a result of the EU’s fiscal and monetary measures. These policies have 20 emphasises the need to increase the longterm sustainability of public finances. rivatisation of een the oect of mch criticism from hman rihts and ciil societ actors t is one of the economic pension systems has been an emphasis of the more recent versions of the act, but this policy may have polic areas that hae met with the stronest oections from hman rihts rops eiewin policies in been counterproductive in certain Eastern EU Member tates ith renationalisation of private pension si of the economicall worst hit contries the ropean ommission plished an oeriew of the funds as a result (atali 202 . asterit measres introdced in stonia reland reece pain ortal and the nited indom n allan et al. estimate the effect of austerity policies on disposable household incomes in si countries in most contries asterit measres too the form of some comination of 1 redctions in cash enefits an analysis from 20. The figures are therefore not updated ith respect to the more recent impact of and plic pensions 2 increases in direct taes and contritions increases in indirect taes austerity measures. Especially for reece, being one of the si countries, this is liely to underestimate redctions in plic ependitre that hae an indirect impact on the welfare of hoseholds sin them the effect.8 This analysis may provide some understanding of ho adeuate standards of living ere redctions in plic ependitre sch as defence spendin cts in plic sector pa and cts in influenced during the first years of the crisis, but it is also indicative of hether particular income deciles plic sector emploment allan et al 2011 ere discriminated against. The analysis shos household incomes in reland and Estonia to be most ternall in terms of trade and inestment policies an important rationale in trade polic is economic severely affected (8. and .2 percentage reductions, hile households in reece ere less severely rowth and o creation he is the iest eporter in the world and the larest econom ropean affected at the time of analysis compared to all five other countries ith the eception of the U (2.2 in ommission 2010 t is howeer anticipated in the ommission that mch of the rowth in reece, . in U against e.g. in ortugal and 2. in pain (20 . n reland, reece, pain and international trade will e enerated otside rope especiall in ast and oth sia id ome of the ortugal pension levies ere substantially increased, hile in reland and Estonia the orer social oecties in trade polic are therefore refocsed on wellnown sects ie lieralisation of marets standardisation and competitie capacities oweer other aspects of trade polic addressin the necessar coherence etween internal and eternal strateies are also prioritised and ale elements present in the rope 2020 trate are incorporated smart rowth t also inclsie rowth with rt. 20 of the Treaty on the unctioning of the European Union (TEU provides that by establishing a customs union in accordance ith rts. 28 to 2, the Union shall contribute, in the common interest, to the progressive emphasis on principles of hman rihts enironment protection and ood oernance id olicies are abolition of restrictions on international trade and foreign direct investment, and the loering of customs and other also eared towards fair trade areements for instance with oth orea recentl and completion of the barriers. rticle 20 includes foreign direct investment as one of the areas covered by the common commercial oha rond neotiations of the orld rade raniation ects nder oha inclde aricltral and policy of the Union. The common commercial policy is an area of eclusive competence pursuant to rt. ( of the nonaricltral maret access intellectal propert rihts and dispte settlement 201 ac of TEU. ee European ommission ( 200, 2. 8 Estonia, reland, reece, pain, ortugal and U ere included in the analysis (allan et al 20 20.

61 E eierae o insurance contributions ere maredly increased. ncreasing income ta levies are important in ortugal, pain, and reland, hile negative in reece.

The distribution of austerity measures during these early years of the crisis is regressive in ortugal here the poorest household income deciles share the heaviest burden. n Estonia and pain the distribution of the austerity measures is relatively flat across deciles, in the U it is also relatively flat, but the richest decile pays a heavier burden compared to the other groups. n reland the poorest decile group together ith the five richest groups pay a disproportionate share of the burden of austerity. ensioners ho are concentrated in the middle decile groups, have their income relatively ell protected (20 . These data are only indicative of hether the burden of austerity is euitable or not. hat they document is that the poorest decile groups certainly are involved in taing a share of austerity costs (20 8. These implications of economic change and policy raise issues, therefore, in relation to the articles on euality and nondiscrimination of the harter of undamental ights of the European Union.

The social response to austerity measures at the EU level has mainly derived from uasijudicial bodies, national human rights institutions and monitoring human rights committees. coordinated civil society response has been ea, hile individual civil society groups have voiced concerns.

complaint to the European ommittee of ocial ights as made by the ederation of Employed ensioners of reece. ccording to the complaint, pensioners under the age of had seen a 0 reduction of their pensions from ovember 20, hile pensioners aged or above had eperienced reductions of 20. ny primary and auiliary pensions of pensioners having taen early retirement had allegedly been reduced by approimately 0. t the end of 202, the ommittee ruled that specific reductions that have been introduced by the government do not in themselves amount to a violation of the European ocial harter, but the cumulative effect of the restrictions as bound to bring significant degradations of living standards of many of the pensioners involved. Even considering the particular situation in reece, the ommittee also found that the government had not conducted a minimum level of research. n these grounds, the ommittee found a violation of the ocial harter (European ommittee of ocial ights 202.

n contrast, the European ourt of uman ights eamined the conseuences of austerity programmes in reece in ouai an e reee. The ree government adopted a series of austerity measures to cut public spending. uch measures applied to all public servants ithout distinction and implied 20 cuts in public sector salaries and pensions and curtailment of other benefits. The ourt dismissed the case on the merits on May 20, having regard to the public interest hich underpinned the measures and the ide margin of appreciation enjoyed by tates in the formulation of economic policy. t observed that the

ee also all et al. 20. Using episodes of fiscal consolidation for a sample of E countries over the period 8200, it shos that fiscal consolidation has typically led to a significant and persistent increase in ineuality, declines in age income and in the age share of income, and increases in longterm unemployment.

62 E eierae o E eierae o insurance contributions ere maredly increased. ncreasing income ta levies are important in ortugal, effect of the cuts on applicants’ livelihoods was not such as to threaten their wellbeing (Tulkens 2013: pain, and reland, hile negative in reece. .20

The distribution of austerity measures during these early years of the crisis is regressive in ortugal here ddressing the austerity and human rights situation in Europe, the European etor of ational uman the poorest household income deciles share the heaviest burden. n Estonia and pain the distribution of ights nstitutions and the erman nstitute for uman ights also raised concerns over EUinduced the austerity measures is relatively flat across deciles, in the U it is also relatively flat, but the richest austerity measures. Thus, austerity policies had been pursued vigorously in pain and in reland. These decile pays a heavier burden compared to the other groups. n reland the poorest decile group together to country cases ere debated alongside that of reece. or families in pain, the crisis had been an ith the five richest groups pay a disproportionate share of the burden of austerity. ensioners ho are emotional shoc for middle and oringclass families. Eclusion from formal labour marets as a result. concentrated in the middle decile groups, have their income relatively ell protected (20 . These In Ireland, one in five Irish people had no health insurance. Asylum seekers’ allowances were cut. At the data are only indicative of hether the burden of austerity is euitable or not. hat they document is same time, the human rights bodies in reland had also been hit by austerity (European etor of that the poorest decile groups certainly are involved in taing a share of austerity costs (20 8. These ational uman ights nstitutions and erman nstitute for uman ights 20 2. implications of economic change and policy raise issues, therefore, in relation to the articles on euality n terms of investment policies, a study has assessed hether EU investments abroad have taen place at and nondiscrimination of the harter of undamental ights of the European Union. the epense of investments at home ith conseuences for employment and labour salaries. study as The social response to austerity measures at the EU level has mainly derived from uasijudicial bodies, undertaen on these relationships and concluded that the longterm of foreign direct investments are not national human rights institutions and monitoring human rights committees. coordinated civil society negative, but employment effects may favour silled over unsilled labour (openhagen Economics 200 response has been ea, hile individual civil society groups have voiced concerns. . n human rights terms, this indicates therefore that ith increasing globalisation unsilled labourers as a group may reuire specific measures of protection in order to ensure their right to or. complaint to the European ommittee of ocial ights as made by the ederation of Employed ensioners of reece. ccording to the complaint, pensioners under the age of had seen a 0 n line ith the Europe 2020 trategy, the EU has pursued social goals that can be seen in the support for reduction of their pensions from ovember 20, hile pensioners aged or above had eperienced ILO policies and treaties, for instance during the negotiations of the ILO’s Global Jobs Pact of 2009 which reductions of 20. ny primary and auiliary pensions of pensioners having taen early retirement had attempts to address the social and employment impacts of the economic and financial crisis by promoting allegedly been reduced by approimately 0. t the end of 202, the ommittee ruled that specific tested policy measures for member countries emphasising employment and social protection alongside reductions that have been introduced by the government do not in themselves amount to a violation of protection of environmental sustainability at the centre of crisis response. uring the adoption of the the European ocial harter, but the cumulative effect of the restrictions as bound to bring significant act, the EU played a ey role in cooperating closely ith emerging economies and developing countries degradations of living standards of many of the pensioners involved. Even considering the particular in the adoption of the act. oever, as argued by ahn (20 808, it is easier for the Union to situation in reece, the ommittee also found that the government had not conducted a minimum level pursue an eternal social policy than an internal one. ocial integration ithin the EU ould go much of research. n these grounds, the ommittee found a violation of the ocial harter (European deeper than any attempts to reinforce the social side of globalisation. ommittee of ocial ights 202. s far as the involvement of staeholders is concerned in eternal trade and investment policies, during n contrast, the European ourt of uman ights eamined the conseuences of austerity programmes in 202 the European ommission presented a ne policy on civil society involvement in eternal relations reece in ouai an e reee. The ree government adopted a series of austerity measures to in a ommunication to iner aia the ouncil and the arliament (European ommission (m 202. t is cut public spending. uch measures applied to all public servants ithout distinction and implied 20 cuts noted that a limited tradition of dialogue prevails in many countries and that the relationship beteen in public sector salaries and pensions and curtailment of other benefits. The ourt dismissed the case on tates and civil society is often delicate. n many contets, s that focus on human rights, advocacy and the merits on May 20, having regard to the public interest hich underpinned the measures and the gender face limitations in their opportunities to secure funding. n light of this situation, the ommission ide margin of appreciation enjoyed by tates in the formulation of economic policy. t observed that the proposes a more strategic approach ith s covering all regions, including developing, neighbourhood, and enlargement countries. Three priorities are envisioned for EU support

 To enhance efforts to promote a conducive environment for s in partner countries.

20 Tulens mentions another European ourt of uman ights case from 20 involving ungary here the ourt ee also all et al. 20. Using episodes of fiscal consolidation for a sample of E countries over the period ruled in favour of the applicant ho complained that her entitlements to severance pay as unepectedly reduced 8200, it shos that fiscal consolidation has typically led to a significant and persistent increase in ineuality, due to the imposition of a 8 ta on severance pay eceeding a certain threshold (. unar judgement declines in age income and in the age share of income, and increases in longterm unemployment. May 20.

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 To promote a meaningful and structured participation of Os in domestic policies of partner countries, in the programming cycle, and in international processes.  To increase the capacity of local Os to act independently.

The will continue to take action in countries where the government fails to recognise civil society with conseuences for human rights violations (uropean ommission (m 2012: 3. The crisis does not seem therefore to have affected participatory policies negatively with respect to eternal engagements. ithin the ommission, awareness about participatory engagements between dutybearers and rightsholders seem to prevail although policies are rarely formulated in human rights terms. owever, two observations may ualify this general point.

irstly, the nature of responsibilities of the uropean ommission towards interest groups is limited and of somewhat technical nature. There are limited structures of direct accountability which means that the sensitivity of the system to outside interests is relatively modest. In addition, the relatively small sie of the ommission of 3,000odd staff (comparable to a mediumsied city makes it dependent on technical inputs from different sources. It is also argued that ivil ociety Organisation (O representation and interaction with the ommission is based on somewhat elitist representation on the part of Os (see Greenwood 2011: 3 uoting ugent.

The Internal arket is a cornerstone of the . Its purpose was originally in 19 to break down barriers between individual Member States and, in doing so, to create ‘four freedoms’ across the EU: the free movement of people the free movement of capital the free movement of goods and the freedom to provide services (uropean ommission (f 2011: 1. Through these freedoms, the has been able to achieve further integration, to deliver economies of scale, and to improve the opportunities available to uropean citiens (chiek 2013: 9 interskog 2013: 191. The relatively comfortable growth rates during the precrisis years might have contributed to laying the ground for the ambitious goals of the urope 2020 trategy and for the endeavours to combine economic integration of the nion with social policy. Thus, internal market and social policy optimism formed a background to the Lisbon Treaty of 2009 and to the adoption of the harter of undamental ights of the uropean nion.

uring 201112, the ommission introduced 12 different levers under the ingle arket Act to boost growth, obs and confidence in the single market. rom a human rights point of view, the most important measures introduced were those on ocial ohesion and on the Governance of the ingle arket (uropean ommission (o 2011 uropean conomic and ocial ommittee 2011. The former addressed improvements of the Posted orkers irectives, i.e. the protection of workers from one country who were stationed by their employers in another member country. uring 201 it is likely that the enforcement of the Posted orkers irective will begin. espite the earlier irective on Posting of orkers, abuses have prevailed with the result that workers have been left without social insurance. or

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 To promote a meaningful and structured participation of Os in domestic policies of partner instance, ver comle combinations of subcontractors have been used, set to minimise the amount of countries, in the programming cycle, and in international processes. social contributions ouffe  To increase the capacity of local Os to act independently. egarding the governance of the internal maret, four olic areas have been introduced during recent The will continue to take action in countries where the government fails to recognise civil society with ears: he better involvement of civil societ of which more below artnershis among member conseuences for human rights violations (uropean ommission (m 2012: 3. The crisis does not seem states mroved information and roer alication and transosition of EU rules oncerning cross therefore to have affected participatory policies negatively with respect to eternal engagements. border artnershis, better administrative rocedures and also access to information in domestic ithin the ommission, awareness about participatory engagements between dutybearers and languages have been imortant tools ogether with the Member States the ommission has further rightsholders seem to prevail although policies are rarely formulated in human rights terms. owever, develoed the new our Euroe ortal which offers a single avenue for all information on single maret two observations may ualify this general point. rights scoreboard has been established for comliance with single maret regulations, with a target of reducing cases of noncomliance to of all regulations owever, the realit is that b onl irstly, the nature of responsibilities of the uropean ommission towards interest groups is limited and Member States less than half reached a target of for gas in the imlementation of single maret of somewhat technical nature. There are limited structures of direct accountability which means that the regulations Euroean ommission g : sensitivity of the system to outside interests is relatively modest. In addition, the relatively small sie of the ommission of 3,000odd staff (comparable to a mediumsied city makes it dependent on technical inputs from different sources. It is also argued that ivil ociety Organisation (O representation and n the aftermath of the Single Maret ct and the itienshi eort Euroean ommission g : interaction with the ommission is based on somewhat elitist representation on the part of Os (see that highlight the ga between the EU legal framewor and eoles dail enoment of their rights, Greenwood 2011: 3 uoting ugent. ommission services ublished a list of the main concerns of citiens and businesses about the single maret his list serves as a diagnostic tool: it identifies citiens roblems and their underling causes in three interrelated areas: i nonadeuate or incomlete EU legislation in some areas, ii citiens The Internal arket is a cornerstone of the . Its purpose was originally in 19 to break down barriers difficulties in eercising their rights due to a lac of imlementation, iii lac of understanding of these between individual Member States and, in doing so, to create ‘four freedoms’ across the EU: the free rights bid movement of people the free movement of capital the free movement of goods and the freedom to provide services (uropean ommission (f 2011: 1. Through these freedoms, the has been able to he arometer Stud on the internal maret illustrates these roblems vividl: achieve further integration, to deliver economies of scale, and to improve the opportunities available to  verall there aears to have been a negative shift in oinion towards the internal maret since uropean citiens (chiek 2013: 9 interskog 2013: 191. The relatively comfortable growth rates during More eole thin that the internal maret has a negative imact than in , while fewer the precrisis years might have contributed to laying the ground for the ambitious goals of the urope thin it has ositive effects 2020 trategy and for the endeavours to combine economic integration of the nion with social policy.  nl of eole thin it benefits oor or disadvantaged eole Thus, internal market and social policy optimism formed a background to the Lisbon Treaty of 2009 and  EU citiens have a limited understanding of where to learn more about their rights under the to the adoption of the harter of undamental ights of the uropean nion. internal maret  Sittwo er cent thin that the internal maret is onl for the benefit of big comanies in while feel that the internal maret has flooded their countr with chea labour uring 201112, the ommission introduced 12 different levers under the ingle arket Act to boost in growth, obs and confidence in the single market. rom a human rights point of view, the most important  or of EU citiens, the internal maret includes too man different countries in , measures introduced were those on ocial ohesion and on the Governance of the ingle arket although, more ositivel, agree that it rovides for more obs in the EU in he (uropean ommission (o 2011 uropean conomic and ocial ommittee 2011. The former addressed nternal Maret strengthens their own countr in cometition with the US, aan or hina, improvements of the Posted orkers irectives, i.e. the protection of workers from one country who according to of EU citiens, as oosed to in ommission f: were stationed by their employers in another member country. uring 201 it is likely that the enforcement of the Posted orkers irective will begin. espite the earlier irective on Posting of orkers, abuses have prevailed with the result that workers have been left without social insurance. or n eamle is that of the construction of a nuclear lant in lamanville rance in , where olish orers were hired through a riote office of an rishbased temorar wor agenc n that case, the worers were not covered b an social insurance the combination of subcontractors made the tas of finding out who should be held resonsible for the abuse ver difficult ouffe ,

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he surve shows that onl of EU citiens have wored in another Member State, onl three er cent did so at the time of the surve bid: he level of labour maret integration is therefore limited his ma elain that social ressures to imlement and reinforce the functioning of the internal maret is relativel modest in the Member States, as noted b the growing imlementation deficits above, but it ma also elain the eiia eii understood as a revailing understanding among EU citiens that the internal maret is not roviding adeuate benefits his negative ercetion has increased during the crisis n addition, the data from the arometer Stud indicates that information about the internal maret or access to information about it is inadeuate owever, the arometer data on ercetions of benefits accruing to big comanies and not to disadvantaged eole ma also indicate that even with better information, citiens ma still hold negative oinions about the maret ne ositive ercetion, though, is that the maorit of citiens thin that the internal maret rovides more obs and enhances the cometitive edge of Member States

he secific human rights imlications of the internal maret are therefore mainl related to labour maret and social rotection, ie to economic and social rights Schie argues that Euroean national social and economic models converge on a common core: social models share the idea that there is a (possibly minimal) responsibility of societies for the individual’s wellbeing. Economic models converge in that the econom is also concerned with organising societ: regulation of marets to avoid distortion of cometition as well as social inustice are common elements alongside rovision of some services, including an accessible and efficient ustice sstem Schie : he malfunctioning and growing lac of ublic legitimac of the internal maret raise uestions on the EU as a welfare institutional structure his also undermines the confidence in EU as delivering economic and social rights

owever, the functioning of the internal maret also romts issues of transarenc, right and to information and to tae art in the conduct of ublic affairs hile the ommission sees to engage civil societ to achieve goals under a ew overnance agenda and to enhance the legitimac of the internal maret, recent analses of civil societ indicate limited access and imact ransarenc is weaened b the todown rocesses of Euroeanisation Economic Ss eg unions tend to have more advantages than other tes of organisations in gaining access to oliticall imortant fora austi : inall, civil societ grous are weaened b the relative marginalisation of citiens in the vertical communication of Ss he interaction between national civil societ grous across the EU is hamered due to ideological ositions EUcritical or suortive and b Eastest divides n terms of the internal maret, it is not the consumers who are emowered, but the ommission rade unions and emloer associations remain the strongest and most influential laers according to the analses, while grous with social and social rights agendas remain wea seres and Schrauwen :

ew overnance relates to the isbon Strateg introduced in the armonisation and coordination via directives is one comonent oordination ertains to social olicies in articular where EU has no regulator cometence he en Method of oordination of social olic is at the core of the ew overnance thining, the setting of social benchmars and the elaboration of national action lans in relation to the benchmars See Schie : and atali :

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he surve shows that onl of EU citiens have wored in another Member State, onl three er cent did so at the time of the surve bid: he level of labour maret integration is therefore limited his etween and the number of people at ris of poverty or social eclusion increased by about ma elain that social ressures to imlement and reinforce the functioning of the internal maret is . from a little less than million people in to . million people in i.e. one fourth of relativel modest in the Member States, as noted b the growing imlementation deficits above, but it the E population. he . million people at ris of poverty and social eclusion in included . ma also elain the eiia eii understood as a revailing understanding among EU citiens that million at ris of monetary poverty million characterised by severe material deprivation and . the internal maret is not roviding adeuate benefits his negative ercetion has increased during the million living in households with very low wor intensity (bid. ). bout . million people had to crisis n addition, the data from the arometer Stud indicates that information about the internal maret deal with all categories of poverty and eclusion. or access to information about it is inadeuate owever, the arometer data on ercetions of benefits y the early s the E had placed social issues firmly on its agenda. he first decade of the new century accruing to big comanies and not to disadvantaged eole ma also indicate that even with better was mared by renewed efforts to mae poverty and social eclusion part of E strategies. uring the information, citiens ma still hold negative oinions about the maret ne ositive ercetion, though, early s social cohesion interpreted as reduction in poverty and social eclusion was positioned is that the maorit of citiens thin that the internal maret rovides more obs and enhances the alongside economic growth and ob creation. he fields in which these policies were put to wor included cometitive edge of Member States employment social eclusion pensions and health care. owever the principle of subsidiarity granting he secific human rights imlications of the internal maret are therefore mainl related to labour member countries autonomy in social policy and the limited E budget placed severe restrictions on the maret and social rotection, ie to economic and social rights Schie argues that Euroean national new policy goals. he isbon trategy for rowth and obs launched by the European ouncil in social and economic models converge on a common core: social models share the idea that there is a brought two new developments a. an agreement that ember tates would coordinate policy on (possibly minimal) responsibility of societies for the individual’s wellbeing. Economic models converge in employment poverty and social eclusion and b. the elaboration of a principles of coordination i.e. the that the econom is also concerned with organising societ: regulation of marets to avoid distortion of pen ethod of oordination () (aly ). t could be added that the isbon trategy cometition as well as social inustice are common elements alongside rovision of some services, also brought a third important institutional element in the nion the harter of undamental ights (see including an accessible and efficient ustice sstem Schie : he malfunctioning and growing lac also ahn ). of ublic legitimac of the internal maret raise uestions on the EU as a welfare institutional structure his also undermines the confidence in EU as delivering economic and social rights uring the second half of the s before the establishment of the Europe trategy in owever, the functioning of the internal maret also romts issues of transarenc, right and to poverty and social inclusion became important strategic terms. aly sees this as a downgrading of information and to tae art in the conduct of ublic affairs hile the ommission sees to engage civil independent social goals which had characterised the phase up to and were indicative of a closer societ to achieve goals under a ew overnance agenda and to enhance the legitimac of the internal linage between economic (growth and ob creation) and social goals (bid. ). uring the maret, recent analses of civil societ indicate limited access and imact ransarenc is weaened b ouncil agreed on a target that poverty be reduced by million people by . his was significant as the todown rocesses of Euroeanisation Economic Ss eg unions tend to have more advantages targets in the social domain have always been controversial to define. his included a combined measure than other tes of organisations in gaining access to oliticall imortant fora austi : of poverty of low income (households with of the median income) material deprivation and inall, civil societ grous are weaened b the relative marginalisation of citiens in the vertical oblessness (bid. ). communication of Ss he interaction between national civil societ grous across the EU is hamered n terms of substance the focus on poverty and inclusion polices has had four strands aie inuion due to ideological ositions EUcritical or suortive and b Eastest divides n terms of the internal especially of those furthest from the labour maret i poer an i eein oeene an maret, it is not the consumers who are emowered, but the ommission rade unions and emloer ouin euion and underpinning all e iporane an aaiaii o oia erie (aly associations remain the strongest and most influential laers according to the analses, while grous raer and arlier ). n order to realise these policies obectives were to be defined and with social and social rights agendas remain wea seres and Schrauwen :

ith respect to the disaggregation of poverty and eclusion figures about . million people are only affected by one dimension of poverty out of . million i.e. about . he pen ethod of oordination was originally applied to employment policies of ember tates as a reaction ew overnance relates to the isbon Strateg introduced in the armonisation and coordination via to the EU’s economic integration. It is a soft form of policymaing seeing to spread best practices and greater directives is one comonent oordination ertains to social olicies in articular where EU has no regulator convergence towards the main E goals. he moves in stages first the goals defined by the ouncil of inisters cometence he en Method of oordination of social olic is at the core of the ew overnance thining, the then ember tates translate the goals into national and regional policies. hirdly specific benchmars and setting of social benchmars and the elaboration of national action lans in relation to the benchmars See Schie indicators are defined to measure the best practices agreed upon. inally monitoring and evaluation of results. ee : and atali : Eurofound ().

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ith them national action plans an inicators raer an alier . he frameor of goernance an realisation as therefore the a frameor of nonining action plans an enchmar setting at the national leel.

ccoring to ahn the Erope trategy sere to eep the social agena alie in EU policies an may hae contrite to strengthening social oer economic rights ahn . he ol oectie of recing poerty sstantially can also e interprete in hman rights terms as efforts to enhance aeate liing stanars an ignity. oeer the traectory of poerty an marginalisation trens ring the economic an financial crisis is inicatie of negatie eelopments in terms of poerty an inclsion. arge proportions of financially lnerale Eropeans face ifficlties in accessing financial serices sch as mortgages loans an creit cars.

inancially lnerale Eropeans report feeling left ot of society far more than responents as a hole. hile of Eropeans oerall feel excluded, around a third of ‘poor’ Europeans feel this ay. hese finings shol e consiere against the fact that almost one in for persons in EU is at ris of poerty. lmost a arter . of the EU poplation as at ris of poerty or social eclsion in p from . in . his represents aot million iniials .

itional poertyrelate factors pointe ot in the reie relates to the oma on hom a srey from reports that eteen an lie in conitions of seere material epriation a proportion significantly higher than fon among the nonoma neighoring poplation. hil poerty is an isse as ell of chilren in the EU are at ris of poerty i.e. a higher rate than fon for the poplation in general. omen are also more liely than men to e at ris of poerty . of omen in against of men see also hapter III...e. inally those at ris of poerty are also liely to report hosing prolems sch as leay roofs amp alls rot in ino frames an floors. or reece Irelan Italy ortgal pain an the U the crisis as ientifie as the ey rier of increase homelessness. eantasa the eeration of ational rganisations oring ith the omeless oseres a tren of more homeless migrants e to cts in elfare hosing health proation serices ecation an training .

he financial an economic crisis can therefore e arge to reslt in threatening social rights in the Union i.e. rights to aeate liing stanars rights to hosing rights to social secrity an the rights of chilren. In aition it seems to hae etrimental effects on eality an marginalisation generally.

oeer some of the same oserations concerning agency an manifestations of protests an strggles apply to poerty as in the case of asterity measres notaly a ea ciil society operating at the Union leel. hs arier arges that the Erope trategy lacs creiility especially in relation to poerty

he analysis ras on ata from Eroarometer sreys an an from Erostat eaine niaor otes the Eropean eeration of ational rganisations oring ith homelessness eantsa.

68 E eierae o E eierae o

ith them national action plans an inicators raer an alier . he frameor of arier , ut it a also e arued that the antipoert oectie lacs a proper constituenc goernance an realisation as therefore the a frameor of nonining action plans an and sufficientl stron processes of staeholder epoerent enchmar setting at the national leel. erschueren has exained hether the polic declarations and initiaties of the Europe trate a result in ore indin oliations accordin to nion la he concludes that there is lac of political ccoring to ahn the Erope trategy sere to eep the social agena alie in EU policies an may ill, and perhaps also leal asis, to copel eer tates to proide for certain iniu reuireents hae contrite to strengthening social oer economic rights ahn . he ol oectie of with regard to the citizens’ right to minimum subsistence schemes by means of an EU legal instrument. recing poerty sstantially can also e interprete in hman rights terms as efforts to enhance urtherore, it is uncertain that, considerin the liited poers of the reat on the unctionin of the aeate liing stanars an ignity. oeer the traectory of poerty an marginalisation trens European nion reardin coatin of social exclusion, there is a leal asis for the E to tae such an ring the economic an financial crisis is inicatie of negatie eelopments in terms of poerty an initiatie erschueren inall, in its reie the undaental ihts enc states that inclsion. arge proportions of financially lnerale Eropeans face ifficlties in accessing financial ‘Charterrelated case la indicates that the E harter of undaental ihts does not offer udicial tools serices sch as mortgages loans an creit cars. across the board to guarantee that austerity measures and other public interventions are “social rights compliant”’ inancially lnerale Eropeans report feeling left ot of society far more than responents as a hole. hile of Eropeans oerall feel excluded, around a third of ‘poor’ Europeans feel this ay. hese finings shol e consiere against the fact that almost one in for persons in eteen and , the eploent rate of the E population in ae roups eteen and EU is at ris of poerty. lmost a arter . of the EU poplation as at ris of poerty or increased fro ust elo to a pea of , the hihest leel also since he eploent social eclsion in p from . in . his represents aot million iniials taret set for as , ut as the econoic crisis full hit the European laour aret, the . eploent rate fell to in and stailised at eteen and European oission n ters of unepoen, the EU’s rate was more or less stable at about 8.8%. itional poertyrelate factors pointe ot in the reie relates to the oma on hom a neploent fell to a rate of in ith a stead decrease eteen and he srey from reports that eteen an lie in conitions of seere material epriation a econoic crisis resulted in a stead increase in uneploent that reached in , an alltie proportion significantly higher than fon among the nonoma neighoring poplation. hil poerty hih id t is ell non that this fiure coers lare reional differences oun people aed is an isse as ell of chilren in the EU are at ris of poerty i.e. a higher rate than fon for the elo ears hae een ore seerel affected than other roups ince , uneploent aon poplation in general. omen are also more liely than men to e at ris of poerty . of omen in oun people has increased seen percentae points, reachin in against of men see also hapter III...e. inally those at ris of poerty are also liely to report hosing prolems sch as leay roofs amp alls rot in ino frames an floors. or reece n ters of ender, the eploent ap eteen en and oen as reduced half eteen Irelan Italy ortgal pain an the U the crisis as ientifie as the ey rier of increase and see also chapter on e ocial actors he eploent ap as close to percentae points homelessness. eantasa the eeration of ational rganisations oring ith the omeless oseres in , ut narroed to in he econoic crisis fro hit en orse than oen due to a tren of more homeless migrants e to cts in elfare hosing health proation serices ecation the ipact of the crisis on construction and autooiles that are ale doinated industries hus, an training . feale eploent onl fell one percentae point eteen and , hereas ale eploent fell ore than four percentae points id , oeer, these trends should not he financial an economic crisis can therefore e arge to reslt in threatening social rights in the hide the fact that hereas of the ale laour force as eploed in , onl of the feale Union i.e. rights to aeate liing stanars rights to hosing rights to social secrity an the rights of laour force as eploed oreoer, stron reional ariations occur in eploent of oen that are chilren. In aition it seems to hae etrimental effects on eality an marginalisation generally. not recorded in this rief oerie

oeer some of the same oserations concerning agency an manifestations of protests an strggles he ison trate eared upon in earl as rounded in the notion of the elfare state, here apply to poerty as in the case of asterity measres notaly a ea ciil society operating at the Union inestent in social polic plas a critical role as part of a irtuous circle coinin adaptailit, flexiilit, leel. hs arier arges that the Erope trategy lacs creiility especially in relation to poerty securit, and eploability (Cantillon 2011: 14). Ferrera, quoting Gilpin, epitomises the policy as ‘Keynes at home, Smith abroad.’ (Ferrera 2010: 49).

oeer, the lael of enesianis a not e a er accurate description for the crisis and austerit he analysis ras on ata from Eroarometer sreys an an from Erostat eaine niaor policies of the nion hich pursued acroeconoic alancin adustents and conditionalities in the otes the Eropean eeration of ational rganisations oring ith homelessness eantsa.

69 E eierae o debtridden countries of Southern Europe, while having little leverage over national policies in the social sphere. ith respect to the national governments, the labour maret policies pursued sought to cushion the worst impact of income losses from unemployment, while at the same time seeing to address the longer term structural problems of the labour marets, such as the mismatch of demand and supply for specific competences of labour.

uring the crisis, reform of the labour maret became increasingly focused on macrostructural aspects of employment protection, automatic stabilisers, and the wagesetting framewor. Employment protection comprised support for employability (e.g. training), improving matching between ob demand and supply, and wage subsidies. he automatic stabilisers related to increases in outofwor income maintenance, and to unemployment insurance benefits. age setting reforms included public regulation, often of a temporary nature aiming to eep wage increases in line with budget deficit targets, while private sector regulation also concerned decentralisation measures in order to combat labour maret rigidities (see European Commission (h) 201: 1).

he contet within which these measures too place was primarily national, but related to structural reform conditionalities (notably in Greece and ortugal, but also in Spain, taly and Slovenia) (bid. 201: 1). uring 2012, several ember States launched youth employment schemes. ustria, Czech epublic, Finland and Spain began initiatives to create conditions for setting up outh Guarantee schemes facilitating also schooltowor transitions (bid 201: ).

uring 2012 a outh Employment acage was introduced, taing effect in 201 (European Commission (r) 2012). hrough the European Social Fund in particular EU 10 billion is targeted in the eight EU countries with the highest level of unemployment. t least 8,000 young people and ,000 small businesses are likely to benefit (Citizens’ Summary, 2013).

he number of people unepoe oninuou or ore an a ear increased by 14.% during the second quarter of 2012 compared to the same quarter of 2011 to reach a total of close to 11 million people. F argues that it is liely that this hit migrants and their families particularly hard, threatening previous precrisis accomplishments in labour maret outcomes (F 201: 11).

uring the second quarter of 201, however, employment growth was positive in the Euro area and in the EU as a whole. Unemployment in the Euro area stabilised at a level of 12.1% in uly 201, while in the EU as a whole, it was 11% during uly 201 (European Commission (h) 201: 9). hus, while the growth of employment stopped, the level remained substantial.

t is difficult to assess the employment measures as they address situations that have been unfolding during recent years. he measures introduced might have been successful in preventing a further increase in unemployment whether of youth or of adults (the counterfactual), but this can only be speculative.

hat is clear is that there is a direct lin between unemployment and poverty. ouseholds with low wor intensity are at greater ris of poverty. nalysing data from 2008 and before, Cantillon demonstrates the

70 E eierae o E eierae o debtridden countries of Southern Europe, while having little leverage over national policies in the social relationsi (Cantillon 2011 1). Cantillon also oints to a. te imortane of unemloyment benefits in sphere. ith respect to the national governments, the labour maret policies pursued sought to cushion te neus beteen oerty an unemloyment, an b. te imortane of soial seurity in te same the worst impact of income losses from unemployment, while at the same time seeing to address the omain. nemloyment mostly affets te lo skille labourers in te lo routiity setors. Cantillon longer term structural problems of the labour marets, such as the mismatch of demand and supply for eits a ilemma beteen buetary onstraints, inome ineuality, an emloyment rot. Some specific competences of labour. obserers ae arue tat it is ossible to ursue to of tese oals simultaneously, but not all tree. f ae euality is a riority, emloyment rot an only be enerate trou emloyment in te ubli setor – at te eense of ier taes or borroin aorin to tese obserers. oeer, Cantillon uring the crisis, reform of the labour maret became increasingly focused on macrostructural aspects arues tat te iniators an ata suest tat elfare states ae inee been able to aoi te of employment protection, automatic stabilisers, and the wagesetting framewor. Employment soial serie trilemma soial senin as been ket uner ontrol, ae ineualities ae remaine protection comprised support for employability (e.g. training), improving matching between ob demand larely unane, ile emloyment as risen sinifiantly. Se also unerlines tat aeuate aount and supply, and wage subsidies. he automatic stabilisers related to increases in outofwor income soul be taken of te ily stratifie nature of te ne soial risks. e reistributie aena soul maintenance, and to unemployment insurance benefits. age setting reforms included public regulation, aain beome foal in soial oliymakin, tereby rioritisin aeuate minimum inome rotetion an often of a temporary nature aiming to eep wage increases in line with budget deficit targets, while te reinforement of te reistributie aaity of soial rorammes. en in ri soieties, liin at risk private sector regulation also concerned decentralisation measures in order to combat labour maret of oerty remains a ania for aiein suess at sool, in te orklae an itin te family. rigidities (see European Commission (h) 201: 1). Soial seurity an effiient soial reistribution are art an arel of effetie inestment strateies he contet within which these measures too place was primarily national, but related to structural (Cantillon 2011 123). oeer, it soul be note tat Cantillon buils tis line of tinkin on te re reform conditionalities (notably in Greece and ortugal, but also in Spain, taly and Slovenia) (bid. 201: risis years an te early years of te risis. e onlusion tat te trilemma of obs, ae euality, an 1). uring 2012, several ember States launched youth employment schemes. ustria, Czech epublic, buet restraint an be oerome must terefore be temere by analyses of ata from reent years. Finland and Spain began initiatives to create conditions for setting up outh Guarantee schemes e uman rits roblems of euality, nonisrimination, an te nee for effetie an aeuate soial facilitating also schooltowor transitions (bid 201: ). seurity an safety nets may terefore be aute in te labour market urin tese reent years of te uring 2012 a outh Employment acage was introduced, taing effect in 201 (European Commission risis. ner te Carter of unamental its of te nion, te ersistene of i leels of (r) 2012). hrough the European Social Fund in particular EU 10 billion is targeted in the eight EU unemloyment treatens rits uner itles , , an of te Carter rt. 1 on reeom to oose countries with the highest level of unemployment. t least 8,000 young people and ,000 small an ouation an rit to enae in ork uner itle an art. 2021, an art. 23 on uality an on businesses are likely to benefit (Citizens’ Summary, 2013). isrimination uner itle , te latter it reset to uality beteen men an omen. ner itle notably art. 3031 are uner treat, resetiely on rotetion in te eent of unustifie ismissal an on air an ust orkin onitions. astly uner itle , art. 3 on Soial seurity an soial assistane he number of people unepoe oninuou or ore an a ear increased by 14.% during the aears as inreasinly releant. second quarter of 2012 compared to the same quarter of 2011 to reach a total of close to 11 million people. F argues that it is liely that this hit migrants and their families particularly hard, threatening s art of te uroe 2020 Stratey an in artiular te inustrial oliy flasi initiatie of tober previous precrisis accomplishments in labour maret outcomes (F 201: 11). 2010 and the ‘Agenda for new skills and jobs’ adopted in November 2010, the Commission adopted the Green Paper on ‘Restructuring and anticipation of change: what lessons from recent experience?’ A uring the second quarter of 201, however, employment growth was positive in the Euro area and in onsultation roess as el urin 2012 reeiin resonses from 1 stakeolers aross te , the EU as a whole. Unemployment in the Euro area stabilised at a level of 12.1% in uly 201, while in the inluin 23 emloyer oranisations, 1 trae union oranisations, 12 iniiual omanies, 13 ubli EU as a whole, it was 11% during uly 201 (European Commission (h) 201: 9). hus, while the growth of autorities, an 2 oter tyes of oranisations. lmost all resonents ilite te role of soial employment stopped, the level remained substantial. ialoue in eisionmakin as a maor fator in builin trust an onsensus, tereby failitatin ane from an eonomi as ell as a soial oint of ie. any stakeolers unerline tat early inolement t is difficult to assess the employment measures as they address situations that have been unfolding of stakeolers an lonterm manoer lannin as useful smallsale enterrises nee seifi during recent years. he measures introduced might have been successful in preventing a further increase suort in tis fiel. Some resonents mentione te imortane of a leal frameork at te leel. in unemployment whether of youth or of adults (the counterfactual), but this can only be speculative. However, this argument was favoured much more by trade unions than by employers’ organisations hat is clear is that there is a direct lin between unemployment and poverty. ouseholds with low wor (uroean Commission (i) 2012 13). intensity are at greater ris of poverty. nalysing data from 2008 and before, Cantillon demonstrates the

0 1

71 E eierae o

This process illustrates the point made earlier that CSOs working on ‘economic rights’ have a certain level of access in the system However, the debates between employers and the trade unions are rarely formulated in human rights terms Nevertheless, the underlying dilemmas, underpayment of posted workers, the employment of immigrants with a resulting downward pressure on wages have human rights implications, not least concerning the eual treatment of workers whose right to free movement within the uropean nion is guaranteed, but where infringements of rights are threatened in certain ember tates see Pascouau 201: 22 he uropean Court of ustice has in cases of procurement of posted workers, for example posted Polish workers in Germany, ruled that the posted workers are entitled to the same minimum wage as stipulated in collective agreements under national law interskog 201: 0

n the following section, the focus is mainly on how human rights are impacted by external dimensions of policies and institutions he primary stakeholders of these dimensions, the recipients of aid, and the participants in trade in developing and neighbourhood countries, exist outside the borders of the nion his situation implies that the external influence on human rights consolidation and struggles is less pronounced his situation makes external situations and circumstances less politically sensitive in most cases, affected stakeholders of human rights deterioration or strengthening are not citiens of the union, but beneficiaries with a different actor role compared to citiens

hile the Commission implements 20 of the collective aid effort with 0 deriving from ember tates, it also acts as coordinator, convener and policy maker, at least this is the perception from the Commission’s side (European Commission n 2011: n the discussion below the focus is on economic and human rights dimensions of recent development policy

he isbon reaty anchored development policy firmly within external action he creation of the post of High Representative for Common oreign and ecurity PolicyicePresident of the uropean Commission, assisted by the uropean xternal Action ervice A, offered new opportunities for more effective development cooperation and more integrated policymaking

he overriding goal of development policy is the eradication of poverty ooking back on past actions in a Communication to the Parliament, the Council and the uropean conomic and ocial Committee and the Committee of the Regions, the Commission argued that the has already done much to help reduce poverty and in particular to support the achievements of the illennium evelopment Goals Gs et

2 he utch government has levied disproportionate fees on third country nationals and their families to obtain long term resident status he Commission has raised the issue with the uropean Court of ustice which has ruled that the charges levied by the utch government were disproportionate and liable to create an obstacle to the rights of free movement within the nion ee Pascouau 201: 2 2 rade and investment policies are relevant generally as well as in the development field rade policies will be in focus as the most important economic issue with human rights implications outside development nvironmental and climate dimensions and multilateral policies for instance at the N level are not treated in this section as these dimensions are not narrowly conceptualised as economic

72 E eierae o E eierae o

This process illustrates the point made earlier that CSOs working on ‘economic rights’ have a certain level the economic crisis and the ensuing shocks have let man developing countries vulnerale oreover of access in the system However, the debates between employers and the trade unions are rarely peopleled movements in orth rica and the iddle East have highlighted that sound progress on the formulated in human rights terms Nevertheless, the underlying dilemmas, underpayment of posted s is essential ut not suicient (European Commission (n Two conclusions emanate workers, the employment of immigrants with a resulting downward pressure on wages have human rights rom this assessment that the oectives o development democrac human rights good governance implications, not least concerning the eual treatment of workers whose right to free movement within and securit are intertwined and that it is critical to oer a uture or oung people (id the uropean nion is guaranteed, but where infringements of rights are threatened in certain ember tates see Pascouau 201: 22 he uropean Court of ustice has in cases of procurement of posted n the Communication the Commission proposed the ollowing genda or Change workers, for example posted Polish workers in Germany, ruled that the posted workers are entitled to the  n increased share o E countr and regional cooperation programmes dedicated to the polic same minimum wage as stipulated in collective agreements under national law interskog 201: 0 priorities such as human rights and good governance and with an emphasis on inclusive growth  The concentration o E activities in each countr on a maimum o three sectors n the following section, the focus is mainly on how human rights are impacted by external dimensions of  n increased volume and share o E aid to the countries most in need and where the E can have a policies and institutions he primary stakeholders of these dimensions, the recipients of aid, and the real impact including ragile states participants in trade in developing and neighbourhood countries, exist outside the borders of the nion  Enhanced importance o human rights democrac and good governance trends in determining the his situation implies that the external influence on human rights consolidation and struggles is less mi o instruments and aid modalities at countr level pronounced his situation makes external situations and circumstances less politically sensitive in most  Continued support or social inclusion and human development through at least o E aid cases, affected stakeholders of human rights deterioration or strengthening are not citiens of the union,  greater ocus on investing in drivers or inclusive and sustainale economic growth providing the but beneficiaries with a different actor role compared to citiens ackone o eorts to reduce povert  higher share o E aid through innovative inancial instruments including under acilities or hile the Commission implements 20 of the collective aid effort with 0 deriving from ember lending grants and loans tates, it also acts as coordinator, convener and policy maker, at least this is the perception from the  ocus on helping reduce developing countries eposure to gloal shocks such as climate change Commission’s side (European Commission n 2011: n the discussion below the focus is on economic ecosstem and resource degradation and volatile and escalating energ and agricultural prices and human rights dimensions of recent development policy concentrating investment in sustainale agriculture and energ he isbon reaty anchored development policy firmly within external action he creation of the post  Tackling the challenges o securit ragilit and transition of High Representative for Common oreign and ecurity PolicyicePresident of the uropean  oint E and emer States response strategies ased on partners own development strategies with Commission, assisted by the uropean xternal Action ervice A, offered new opportunities for more a sectoral division o laour effective development cooperation and more integrated policymaking  common E results reporting ramework (European Commission (n

n a oint Communication to the European arliament and the Council during the Commission he overriding goal of development policy is the eradication of poverty ooking back on past actions recognised that the E had not alwas een as eective or as oinedup as it might have een The task in a Communication to the Parliament, the Council and the uropean conomic and ocial Committee and ahead was to ensure clarit coherence and eectiveness o polic eing smarter and more strategic the Committee of the Regions, the Commission argued that the has already done much to help reduce The strateg includes the ollowing components and institutional rameworks poverty and in particular to support the achievements of the illennium evelopment Goals Gs et  the E elegations (countr representations which would contriute with countradapted human rights strategies in more than countries 2 he utch government has levied disproportionate fees on third country nationals and their families to obtain  the European eighourhood nstrument (newl reormed and eective rom supporting long term resident status he Commission has raised the issue with the uropean Court of ustice which has ruled that the charges levied by the utch government were disproportionate and liable to create an obstacle to the rights countries in orth rica and the iddle East (the South and countries in South Caucasus and Eastern of free movement within the nion ee Pascouau 201: 2 Europe including elarus and kraine (the East 2 rade and investment policies are relevant generally as well as in the development field rade policies will be in  the European nstrument or emocrac and uman ights (E an important instrument or civil focus as the most important economic issue with human rights implications outside development nvironmental societ support in developing countries and climate dimensions and multilateral policies for instance at the N level are not treated in this section as these dimensions are not narrowly conceptualised as economic

73 E eierae o

 inall the policies on udget support were located under udget Support and inancial anagement o Europeid or evelopment and Cooperation udget support is inanced through E the European evelopment und (European Commission (m

Thus the revised polic did not envisage cuts in udgets or development activities uman rights igure prominentl ut mied with oci on democrac governance ragile States and securit growth and povert reduction n the elaoration o polic elements human rights are classiied as eing part o a good governance polic t is argued moreover that should a countr loosen its commitment to human rights and democrac the E should strengthen its cooperation with nonstate actors and local authorities n some cases stricter conditionalit will e warranted (European Commission (n

One polic area which has received increased attention in terms o governance criteria and undamental rights is udget support This is also a ield where a stricter emphasis on conditionalit prevails The new guidelines on udget Support stipulate that povert reduction and also commitment to undamental values and rights orm part o the assessment criteria or countr eligiilit o E udget support (Europeid c

Trade policies and preerential access to the European market are seen as complementar to development policies also with respect to human rights uman rights clauses have een part of the EU’s trade agreements since originall associated with preerential access to the E market developing countries There are now human rights clauses in agreements with countries and more are under negotiation ie the application o human rights clauses reaches more countries than those considered developing (European Commission (m

The aspiration to do good linking economicall oriented trade goals to wider political issues such as democrac and human rights and the rule of law, has been an integral part of the EU’s trade policies since ut especiall important ollowing the ison Strateg ater inkages to securit democrac and human rights have been pursued through agreements on ‘political clauses’. New guidelines were instituted or political clauses in (hnlid The clauses cover e respect or human rights nonprolieration o weapons o mass destruction and cooperation with the nternational Criminal Court iolation o an ‘essential element’ (human rights) could lead to suspension of the agreement. Any suspension is to e preceded consultation etween parties ut in the case o a ailure o consultations parties ma suspend whole o part o the agreement (hnlid Trade agreements have igured prominentl in kraine Turke and in orth rica and the editerranean countries eukeleire and elreu argue that the political clauses have mainl een applied reaie and that the have een applied more onien with respect to the Cotonou greement (rica Cariean and aciic countries compared to the application in sia the editerranean and atin merican countries According to these scholars, States like India disapprove strongly with the Union’s tendenc to link trade agreements with political considerations (eukeleire and elreu

74 E eierae o E eierae o

 inall the policies on udget support were located under udget Support and inancial anagement o Europeid or evelopment and Cooperation udget support is inanced through E the uman rights priorities of the EU in its eternal actions are generally formulated as the promotion of European evelopment und (European Commission (m freedom of epression, assembly and association. reedom of religion and a fight against all forms of discrimination on the grounds of race, ethnicity, age, gender or seual orientation are also emphasised Thus the revised polic did not envisage cuts in udgets or development activities uman rights igure and are associated with advocacy for the rights of children, minorities, indigenous peoples, refugees, prominentl ut mied with oci on democrac governance ragile States and securit growth and migrants and persons with disabilities and with policies of empowering women. It is also argued that the povert reduction n the elaoration o polic elements human rights are classiied as eing part o a EU will intensify its efforts to promote economic, social and cultural rights implying also non good governance polic t is argued moreover that should a countr loosen its commitment to human discriminatory access to services particularly for vulnerable groups. he EU will also encourage and rights and democrac the E should strengthen its cooperation with nonstate actors and local contribute to implementation of the UN uiding rinciples on usiness and uman ights. he EU will authorities n some cases stricter conditionalit will e warranted (European Commission (n continue its efforts in combatting torture and the death penalty. he fair and impartial administration of ustice is seen as essential to safeguard human rights. A final priority area is support for human rights One polic area which has received increased attention in terms o governance criteria and undamental defenders (ouncil of the European Union ). rights is udget support This is also a ield where a stricter emphasis on conditionalit prevails The new guidelines on udget Support stipulate that povert reduction and also commitment to undamental ithin this very broad list of priority areas, the EI prioritised women’s rights and gender issues, LGBT values and rights orm part o the assessment criteria or countr eligiilit o E udget support rights, and human rights defender protection in its call for proposals. (Europeid c enerally, it is left to the country delegations to define human rights priorities that are appropriate in the Trade policies and preerential access to the European market are seen as complementar to country contet. development policies also with respect to human rights uman rights clauses have een part of the EU’s trade agreements since originall associated with preerential access to the E market he EU is the world’s largest donor, and its support for human rights and democracy is substantial even developing countries There are now human rights clauses in agreements with countries and more compared to the UN. It is difficult, however, to gain sufficient knowledge through evaluations of the are under negotiation ie the application o human rights clauses reaches more countries than those diverse types of EU economic measures it is hardly possible to retrieve uptodate evaluations of, for considered developing (European Commission (m instance, how the human rights clauses have worked, and what kind of impact they have had. oncerning S support and channels, an evaluation was undertaken during regarding the delivery, added value, The aspiration to do good linking economicall oriented trade goals to wider political issues such as impact and sustainability of S support of the Union. Salient economic and social points with respect to democrac and human rights and the rule of law, has been an integral part of the EU’s trade policies since human rights were ut especiall important ollowing the ison Strateg ater inkages to securit democrac and human rights have been pursued through agreements on ‘political clauses’. New guidelines were  he participatory aspect is clearly not consistently applied. instituted or political clauses in (hnlid The clauses cover e respect or human  S support allows engagement in sensitive areas such as IAids and gender. In this way S may rights nonprolieration o weapons o mass destruction and cooperation with the nternational Criminal also support advocacy work on human rights. Court iolation o an ‘essential element’ (human rights) could lead to suspension of the agreement. Any  S support has provided positive results in areas such as food security, housing, and social rights. suspension is to e preceded consultation etween parties ut in the case o a ailure o consultations  In conflict ones, S are important partners in the creation of sustainable development agendas. parties ma suspend whole o part o the agreement (hnlid Trade agreements have igured  Eamples were mentioned in the evaluation report where the EU did not raise concerns over a prominentl in kraine Turke and in orth rica and the editerranean countries eukeleire and breach of human rights clauses affecting human rights Ns in fragile and conflict threatened elreu argue that the political clauses have mainl een applied reaie and that the have een countries (Evaluation ). applied more onien with respect to the Cotonou greement (rica Cariean and aciic countries compared to the application in sia the editerranean and atin merican countries wo evaluation reports from illustrate the scant attention to human rights in EU implementation of According to these scholars, States like India disapprove strongly with the Union’s tendenc to link trade development programs outside the framework of EI. In an evaluation of budget support to anania agreements with political considerations (eukeleire and elreu undertaken ointly by a number of agencies, human rights is mentioned once, and in very general terms. he evaluation report which covers a budget support period in anania during the years from does not leave a strong impression of human rights (EuropeAid b ).

In the evaluation of two neighbourhood programs (East and South), it is stated ‘Even though the EU is firmly committed to promoting human rights and gender, their mainstreaming within regional

75 E eierae o interventions remains ad hoc and unsystematic’ (Europeid a, ummary The overall impression that these studies leave is that up to the most recent period, a substantial portion of EU development assistance has been devoted to human rights with an emphasis presently on both civil and political and economic and social rights, but uestions are raised on the consistency of how human rights elements are integrated in some areas lie budget support and in neighbourhood programs, human rights seem only to have been integrated in a very superficial manner t must be recognised, though, that during the most recent period, budget support policies have paid much greater attention to fundamental rights as indicated above inally, it is very difficult from the available material to learn to what degree and how the conditionality element has been applied egarding the latter it is much too early to assess how the element of human rights conditionality has been integrated in the recent budget support programs

There is little documentation that trade agreements lead to better longterm human rights practices owever, in the shorter term, afnerBurton has argued that preferential trade agreements which combine hard clauses with promises of trade access have led to better human rights compliance This analysis is, however, not based on more recent data afnerBurton

EU trade policies are, however, part of a broader trend of legalising trade relations, ie a movement away from negative prescription of reduction of trade barriers to positive rulemaing where the rules of trade become highly precise, strict and binding compared to the GTT era eda

s stated above, the ommission devised a new strategy of civil society involvement in eternal relations during This approach aimed to mae interactions with s more systematic and structured, also with respect to partner countries The international community including the EU has a duty to advocate for a space to operate for both s and individuals The EU should lead by eample, creating peer pressure through diplomacy and political dialogue with governments by publicly raising human rights concerns t will continue to tae action in countries where the government fails to recognise civil society with human rights violations as a conseuence participation in public policy processes and policy dialogue leads to inclusive and effective policies The EU will support s active at the European and global levels European ommission m

s part of these measures a olicy orum which comprises s as well as Local uthorities has been instituted under the Eternal ction ervice The overarching goal of the olicy orum on evelopment is to offer s and local authorities Ls from the EU and partner countries, as well as European institutions, a multistaeholder space for dialogue on development issues at EU eaduarters level

ore specifically, the aims at achieving the following obectives

i acilitating dialogue on crosscutting issues directly related to the role of s and Ls as relevant development actors

ii romoting policy debate, consultation and echange of information and eperiences on EU main policies and initiatives in the development field riority will be given to topics relating to Europeids mandate, aligned to its or rogramme, including discussions in the preparation of highlevel events

76 E eierae o E eierae o interventions remains ad hoc and unsystematic’ (Europeid a, ummary The overall impression irst meetin as hed durin ovemer ith reresentatives rom atin merica rica sia and that these studies leave is that up to the most recent period, a substantial portion of EU development aciic oa etors uroean atorms emer tates uroean nstitutions and odies and the assistance has been devoted to human rights with an emphasis presently on both civil and political and uroean ommission oicy orum economic and social rights, but uestions are raised on the consistency of how human rights elements are oever as indicated aove so ar the imact and siniicance o these interactive rocesses at the integrated in some areas lie budget support and in neighbourhood programs, human rights seem only eterna eve seems eusive t can e hyothesised that the main siniicance remains at the eve here to have been integrated in a very superficial manner t must be recognised, though, that during the most a enera concern or uhodin vaues o human rihts are maintained hereas the seciic imact on recent period, budget support policies have paid much greater attention to fundamental rights as human rihts resect standards and advocacy may e more diicut to discern indicated above inally, it is very difficult from the available material to learn to what degree and how the conditionality element has been applied egarding the latter it is much too early to assess how the he orum on uman ihts is an annua conerence that rovides a venue or direct interaction element of human rights conditionality has been integrated in the recent budget support programs and in deth discussion eteen reresentatives o oa civi society and the institutions emer tates and internationa oranisations on various toics reated to the romotion and rotection There is little documentation that trade agreements lead to better longterm human rights practices o human rihts hese orums are undertaen annuay and convened resenty y the terna ction owever, in the shorter term, afnerBurton has argued that preferential trade agreements which ervice combine hard clauses with promises of trade access have led to better human rights compliance This analysis is, however, not based on more recent data afnerBurton econdy the diusion o oer hich characterises the system may aso imy that actors have imited arainin oer ramentation o arainin oer is thus an imortant eement hen domestic actors EU trade policies are, however, part of a broader trend of legalising trade relations, ie a movement away neotiate ith on internationa trade and investment contracts e an and outers from negative prescription of reduction of trade barriers to positive rulemaing where the rules of trade become highly precise, strict and binding compared to the GTT era eda s stated above, the ommission devised a new strategy of civil society involvement in eternal relations he economic and inancia crisis startin in had oa imact t caused neative roth in the during This approach aimed to mae interactions with s more systematic and structured, also uroean nion durin isca tihtenin and reater isca contros ensued aectin anin with respect to partner countries The international community including the EU has a duty to advocate securities and inancia suervision nemoyment increased to the hihest eve since and youth for a space to operate for both s and individuals The EU should lead by eample, creating peer unemoyment aected amost a uarter o the youner eneration in the to a ourth o the pressure through diplomacy and political dialogue with governments by publicly raising human rights ouations as at ris o overty concerns t will continue to tae action in countries where the government fails to recognise civil society he anaysis o the individua actors demonstrated at the interna eve that the eriod eore the with human rights violations as a conseuence participation in public policy processes and policy economic and inancia crisis as mared y eorts to roaden and deeen the eve o human rihts dialogue leads to inclusive and effective policies The EU will support s active at the European and rotection – even thouh oicies ere rarey ormuated in human rihts terms his haened as art global levels European ommission m o the ison tratey under hich the souht to enhance aour maret rotection as e as socia s part of these measures a olicy orum which comprises s as well as Local uthorities has been oicies or instance reardin ensions socia security and heath care oever ith the onset o the instituted under the Eternal ction ervice The overarching goal of the olicy orum on evelopment crisis aour maret and socia rotection decreased he deterioration o economic and socia conditions is to offer s and local authorities Ls from the EU and partner countries, as well as European and rights affected citizens’ assessment of the internal market. Contributin actors ere the austerity institutions, a multistaeholder space for dialogue on development issues at EU eaduarters level measures hich ed to ayos erosion o ension eneits and income deterioration eseciay in countries here the uic det as hih ocia actors such as civi society oranisations and ationa ore specifically, the aims at achieving the following obectives uman ihts nstitutions raied aainst the socia imications o austerity measures ven the t as moiised toether ith the uroean ommittee on ocia ihts i acilitating dialogue on crosscutting issues directly related to the role of s and Ls as relevant development actors he crisis and the austerity measures undermined the traectory or a more socia and incusive uroe aid out in the uroe tratey noerene eteen stated oas and the reaity in emer tates ii romoting policy debate, consultation and echange of information and eperiences on EU main articuary in outhern uroe made the tratey aear unreaistic he overty reduction oas policies and initiatives in the development field riority will be given to topics relating to Europeids o the tratey ere ut in eoardy iteen er cent o uroeans et ecuded hie the core mandate, aligned to its or rogramme, including discussions in the preparation of highlevel events oective o the ison reaty and the tratey as socia incusion most one out o our uroeans as at ris o overty y eteen and er cent o oma ouations ere ivin

77 E eierae o in conditions of seere material deriation b . hese conditions ere eacerbated b groing nemloment . in the ro area dring hile oth emloment as at tice that leel. he economic and financial crisis reslted therefore in internal deterioration of

 he right to adeate standard of liing  he right to social secrit  he right to hosing  he right to ork  ights of the child.

hese trends ere moreoer marked b trends of groing differential access to serices and inflence of articlar gros.

he realit of enoing economic and social rights as therefore onl reaching a roortion of roean olations. nternall the crisis reslted in less trst less inclsion and ineffectie rocesses of emoerment.

he right to take art in the condct of blic affairs as also threatened. ctors oerating in the shere of economic rights had better access to the Commission and to decisionmaking bodies. ocial rights stakeholders and Cs oerating in that area ere deemed to hae oorer access and lesser inflence.

n enabling factor at the economic leel is that the seems to hae come throgh the economic and financial crisis ithot maor olitical heaals. he emloment figres for indicate that the leel of nemloment ma be on the a don.

ternall trade inestments and deeloment assistance hae been less seerel affected b the crisis. hese areas are characterised b legalisation and stronger reference to hman rights and to fndamental ales bt estions can be raised concerning the imact of the hman rights emhasis in eternal economic actions. Cs hae become increasingl inoled in debating sch olicies bt it is difficlt to ascertain the imact of these changes on the grond in deeloing and neighborhood contries. man rights rhetoric is more realent in eternal affairs than internall bt the efforts of institting rights on the grond eternall ma be highl aried and not alas discernible.

he oerall imression from aailable ealations is that to the most recent eriod a sbstantial ortion of deeloment assistance has been deoted to hman rights ith an emhasis resentl on both ciil and olitical and economic and social rights. oeer estions can be raised on the onien ith hich hman rights elements are integrated in some areas like bdget sort and in neighborhood rograms hman rights seem onl to hae been integrated rhetoricall or serficiall dring recent ears according to ealation reorts. inall it is er difficlt from the aailable material to learn o a eree and o the conditionalit element has been alied and ith hat kind of consistenc and imact. cholars orking on trade agreements oint ot that conditionalit is alied ith aring consistenc deendent on region and more as a reactie than a roactie tool. t is mch too earl to assess ho the element of hman rights conditionalit has been integrated in the nel reformed bdget sort rograms. ositie and enabling factor at the eternal leel is that hman

78 E eierae o E eierae o in conditions of seere material deriation b . hese conditions ere eacerbated b groing rights reail as a strong olic element and that there seems to be a ill for increasing dialoge beteen nemloment . in the ro area dring hile oth emloment as at tice that leel. the its third contr artners and ciil societ gros. he economic and financial crisis reslted therefore in internal deterioration of he resent literatre oerie has demonstrated a rich field of research focsing on economic and social  he right to adeate standard of liing change. oeer the social rights imact of economic change and of economic olic change cold be  he right to social secrit analsed more thoroghl. he sefl std b on aeuarin unaena i in ie o e  he right to hosing rii cold be comlemented b a nmber of other stdies. ights to social secrit is an nder  he right to ork researched area in hman rights generall bt also ithin the domain. n terms of hman rights  ights of the child. methodolog the reflection on dtbearer as ell as rightsholder action and strggles is not ell docmented on the rightsholder side ithin the roean nion. ome hman rights stdies ill not hese trends ere moreoer marked b trends of groing differential access to serices and inflence een come close to obsering ho rightsholders can access oer and dtbearers and ho these actors of articlar gros. from belo can inflence dtbearers in a alified manner. astl a crossctting recent std on the hman rights clases and their imortance and imact is arranted. he realit of enoing economic and social rights as therefore onl reaching a roortion of roean olations. nternall the crisis reslted in less trst less inclsion and ineffectie rocesses of emoerment. he right to take art in the condct of blic affairs as also threatened. ctors oerating in the shere Coenhagen conomics pa o EU uar nesen a . end .esersen and artin of economic rights had better access to the Commission and to decisionmaking bodies. ocial rights helle. td for rade. stakeholders and Cs oerating in that area ere deemed to hae oorer access and lesser inflence. Concil of the roean nion EU raei raeor an ion an on uan i an n enabling factor at the economic leel is that the seems to hae come throgh the economic and eora emborg. financial crisis ithot maor olitical heaals. he emloment figres for indicate that the leel of nemloment ma be on the a don. roeid a. Eauaion o e uppor o o European eiouroo oi eion Ea an ou ef. . ternall trade inestments and deeloment assistance hae been less seerel affected b the crisis. hese areas are characterised b legalisation and stronger reference to hman rights and to fndamental roeid b. oin Eauaion o ue uppor o anania eon earne an ales bt estions can be raised concerning the imact of the hman rights emhasis in eternal eoenaion or e uure ina epor ol. . economic actions. Cs hae become increasingl inoled in debating sch olicies bt it is difficlt to roeid eeloment and Cooeration irectorate eneral of the roean Commission ascertain the imact of these changes on the grond in deeloing and neighborhood contries. man ue uppor uieine Eeuie uie oern pproa o ue uppor rssels. rights rhetoric is more realent in eternal affairs than internall bt the efforts of institting rights on the grond eternall ma be highl aried and not alas discernible. roean Commission a. conomic and inancial ffairs . ie ear o en Enare EU Eonoi ieeen an aene. he oerall imression from aailable ealations is that to the most recent eriod a sbstantial ortion of deeloment assistance has been deoted to hman rights ith an emhasis resentl on roean Commission b . ouniaion ro e oiion o e ouni e European both ciil and olitical and economic and social rights. oeer estions can be raised on the ariaen e European Eonoi an oia oiee an e oiee o e eion oar a onien ith hich hman rights elements are integrated in some areas like bdget sort and in opreenie European nernaiona neen oi rssels. neighborhood rograms hman rights seem onl to hae been integrated rhetoricall or serficiall dring recent ears according to ealation reorts. inall it is er difficlt from the aailable material roean Commission c . ouniaion ro e oiion o e European ariaen e to learn o a eree and o the conditionalit element has been alied and ith hat kind of ouni e European Eonoi an oia oiee an e oiee o e eion oar a consistenc and imact. cholars orking on trade agreements oint ot that conditionalit is alied opreenie European nernaiona neen oi C . ith aring consistenc deendent on region and more as a reactie than a roactie tool. t is mch roean Commission d . rae ro an or air rae oi a a ore oponen o too earl to assess ho the element of hman rights conditionalit has been integrated in the nel the EU’s 2020 Strategy. (Com (2012) 612. reformed bdget sort rograms. ositie and enabling factor at the eternal leel is that hman

79 E eerae o. 2.1

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World Trade Organiation (2014). he oha ound http:www.wto.orgenglishtratopeddaeddae.htm Last accessed May 2014.

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Callan, T. , Leventi, C., Levy, H., Matsaganis, M., Paulus, A., and Sutherland, H. (2011). ‘The Distributional  Effects o Austerity Measures: A Comparison of Six EU Countries’. European Commission, Research Note 22011. Social factors refer to the composition and structure of the society which hierarchically position Cantillon, B. (2011). ‘The Paradox of the Social Investment State. Growth, Employment, and Poverty in the individuals and persons belonging to certain social groups and influence social, political and economic Lisbon Era’. CSB Working Paper (Centre for Social Policy, University of Antwerp). March No.11/03. participation and distribution of wealth, reputation and resources. The structure of a society also has an European etwork of ational Human Rights Institutions and German Institute for Human Rights (2014). impact on the enoyment of human rights as well as on access to ustice. ‘Austerity and Human Rights in Europe. Perspectives and Viewpoints from Conferences in Brussels and et, a fundamental claim of human rights is that they are held eually by all individuals everywhere. This Berlin’, 1213 June 2013. Berlin and Brussels. basic principle of euality runs like a thread through all human rights documents. It is the fundamental European Economic and Social Committee (2011). Opinion of the European Economic and Social idea human rights are based on. or example, Art. 1 of the Universal Declaration of Human Rights (UDHR) Committee on the Communication from the Commission to the European Parliament, the Council, the says that ‘[a]ll human beings are born free and equal in dignity and rights.’ The right to equality not only European Economic and Social Committee and the Committee of the Regions: Single Market Act Twelve comprises euality before the law and the right to be eually protected by the State but also means to be levers to boost growth and strengthen confidence Working together to create new growth eually able to participate in and have eual access to all fields of society, such as education, labour COM(2011) 20 final market, culture, politics.

FRA. European Union Agency for Fundamental Rights (2013). he uropean nion as a ommunit o Despite this central significance of euality in the context of human rights, the reality looks somewhat alues aeuardin undamental ihts in imes o risis FRA Focus. different. In all societies and States the right to euality is not only occasionally infringed but certain groups are systematically and structurally disadvantaged in many areas of society. Human rights law Pascouau, E. (2013). IntraEU mobility: the ‘Second Building Block’ of EU Labour Migration Policy. acknowledges this fact by explicitly prohibiting the exclusion of certain groups (e.g. ethnic minorities, uropean oli entre ssue aper o women) from particular areas such as education, labour market or access to services. The principle of non discrimination recognises the fact that specific factors that are rooted in the structure and composition of World Bank (2014). orld eelopment ndiators the society enable or hinder the protection of human rights. or example, Art. 2 of the UDHR stipulates http:databank.worldbank.orgdataviewsreportstableview.aspx?issharedtrue Last accessed May that ‘[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction 2014. of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, World Trade Organiation (2014). he oha ound property, birth or other status.’ http:www.wto.orgenglishtratopeddaeddae.htm Last accessed May 2014. Similar provisions are enshrined in EU human rights law. Article 21 of the Charter of undamental Rights of the European Union (CFREU) lays down that ‘[A]ny discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.’

urthermore, Art. 1 of the Treaty on the unctioning of the European Union (TFEU) lays down that ‘the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.’ Based on this provision several directives to prohibit and combat discrimination on these grounds were adopted.

 The authors of this chapter are Dr. Monika Mayrhofer, Ludwig Boltmann Institute of Human Rights, (gender, sexual orientation, disability, age) and Dr. Daniel Gara San os, Associate Professor, University of Seville (age).

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The EU nondiscrimination clauses are the starting point for the present chapter on social factors which enable or hinder the protection of human rights in the EU’s external and internal policies. As the religious and ethnical factors are covered by other sectionsreports the report elaborates on the following factors

 ender  exual orientation  Disability  Age

The question ‘What are the key social factors which enable or hinder the protection of human rights in the EU’s external and internal policies?’ is somehow misleading because it suggests that human rights are a neutral concept, that they are unbiased and impartial towards social positions of individuals and neutral towards social groups. owever, human rights are not only embedded in social, economic, cultural or political structures which are biased in terms of social factors such as gender, sexual orientation, disability, social origin, birth and property and age human rights are characterised by being partial themselves as they embody certain norms and values which are not neutral. For example, feminists have stressed that human rights are based on male norms which are of disadvantage to women (see tar , Reilly ) and gay rights activists have criticised that the idea of family embodied in human rights complies with heterosexual family norms and, thus, often exclude persons belonging to sexual minorities (see helan or agennecht ). Thus, social factors which enable or hinder the protection of human rights have an internal as well as an external dimension. The internal dimension refers to the intrinsic bias of human rights as they are based on norms that favour certain social groups (e.g. white, male, abled). The external dimension includes social structures and norms which are characteristic for the organisation of a society and hamper the enoyment of rights of specific groups.

n this chapter each social factor will be presented in detail. Firstly, the factor will be explained and defined and, secondly, based on a literature review it will be shortly outlined in what way this factor enables or hinders the protection of human rights and what are biases in human rights law that are of disadvantage to certain groups. Thirdly, there will be a preliminary presentation and discussion of how EU policies and law tae into consideration the respective factor and what are gaps and challenges in this context.

The category of gender is a fundamental social concept. Usually, in the context of academic discussion gender is seen as being a different concept than the term sex. ex refers to the idea of a dichotomous, ‘biological’ category of being either a man or a woman and, thus, stands for biological characteristics commonly associated with men or women such as hormones, anatomy, chromosomes or sexual organs. ender refers to the social construction of stereotypes and roles identified with this dichotomous concept and relates to social behaviour and ascriptions such as ‘feminine’ or ‘masculine’. Meanwhile also the

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The EU nondiscrimination clauses are the starting point for the present chapter on social factors which ‘biological’ concept is challenged as being a social construct and it is proposed that there are more sexes enable or hinder the protection of human rights in the EU’s external and internal policies. As the religious than ust men and women e.g. intersexual, transsexual. and ethnical factors are covered by other sectionsreports the report elaborates on the following factors Taking a closer look at the category of gender reveals that today there is a broad range of different  ender scientific approaches, theories and concepts to grasp this phenomenon. t comprises psychological,  exual orientation sociological as well as political approaches. They include social constructivism estvogel ,  Disability structuralism ulawik and auer , institutionalism Martin or the notion of gender  Age as hegemonic masculinity onnell and Messerschmidt .

The question ‘What are the key social factors which enable or hinder the protection of human rights in the EU’s external and internal policies?’ is somehow misleading because it suggests that human rights are eminist critique of human rights goes back to the rench evolution in . The proclamation of the a neutral concept, that they are unbiased and impartial towards social positions of individuals and neutral eclaration of the ights of Man and of the itien during the revolution counts as an important point of towards social groups. owever, human rights are not only embedded in social, economic, cultural or reference in the history of human rights. owever, the proclaimed rights only applied to men, although political structures which are biased in terms of social factors such as gender, sexual orientation, disability, women had played a significant role during the revolution and feminist activists such as Mary social origin, birth and property and age human rights are characterised by being partial themselves as Wollstonecraft or lympe de ouges had demanded equal rights for women see e.g. de ouges . they embody certain norms and values which are not neutral. For example, feminists have stressed that ince then, feminist critique of human rights has prospered and highlighted many gaps and weaknesses human rights are based on male norms which are of disadvantage to women (see tar , in the concept and practice of human rights that are of disadvantage to women. The most important point Reilly ) and gay rights activists have criticised that the idea of family embodied in human rights of criticism refers to the inherent androentri oneption of human rights. t is argued that human rights complies with heterosexual family norms and, thus, often exclude persons belonging to sexual minorities are based on specific norms and values which mostly correspond to the experience of men: ‘Some (see helan or agennecht ). Thus, social factors which enable or hinder the protection of women’s advocates have criticised rights discourse as inherently gendered – that is, rights discourse human rights have an internal as well as an external dimension. The internal dimension refers to the protects that which matters most to men. As a corollary, it has been argued that the rights discourse intrinsic bias of human rights as they are based on norms that favour certain social groups (e.g. white, matters most to those women whose lives are most like men’s lives.’ (Stark 2000: 342 n addition, the male, abled). The external dimension includes social structures and norms which are characteristic for the liberal influence and its focus on individual rights have been criticised for neglecting structural forms of organisation of a society and hamper the enoyment of rights of specific groups. discrimination and inequality acey and to uphold the differentiation between private and public and, thus, neglecting and ignoring human rights violations of women and inequalities in the private sphere. The publicprivate configuration has ‘genderspecific implications for how human rights issues are n this chapter each social factor will be presented in detail. Firstly, the factor will be explained and defined defined and prioritised’ (Reilly 2009: 31) and contributes to the devaluation of unpaid care and household and, secondly, based on a literature review it will be shortly outlined in what way this factor enables or work mostly done by women harlesworth . urthermore, a rightsbased approach to equality hinders the protection of human rights and what are biases in human rights law that are of disadvantage is very often limited as it fails to take into consideration the complexity of social, political and economic to certain groups. Thirdly, there will be a preliminary presentation and discussion of how EU policies and organisation. ender relations are deeply embedded in society and rights very often fall short of law tae into consideration the respective factor and what are gaps and challenges in this context. addressing this complexity. Thus, ‘rights discourse overly simplifies complex power relations and their promise may be thwarted by structural inequalities of power’ (Charlesworth 1994: 353). ot least because of the pressure of feminist political groups, feminist concerns have increasingly been taken into consideration in the human rights discourse. owever, it is the liberal feminist approach which has had the most impact in international human rights law . This approach has shortcomings as it The category of gender is a fundamental social concept. Usually, in the context of academic discussion pursues a very narrow focus of gender equality, does not aim at challenging gendered social, economic gender is seen as being a different concept than the term sex. ex refers to the idea of a dichotomous, and political structures and, thus, perpetuates gendered structures embedded in the society. or example, ‘biological’ category of being either a man or a woman and, thus, stands for biological characteristics legal feminist have pointed out that the most important international human rights document that commonly associated with men or women such as hormones, anatomy, chromosomes or sexual organs. focuses on women’s rights, the onention on the limination o ll orms o isrimination ainst ender refers to the social construction of stereotypes and roles identified with this dichotomous concept omen EAW follows this approach. Although EAW includes both equality of opportunity formal and relates to social behaviour and ascriptions such as ‘feminine’ or ‘masculine’. Meanwhile also the equality and equality of outcome de ato equality), the language of ‘equal rights and equal

87 elierale o opportunities’ tacitly reinforces the basic organisation of society. It ‘still relies fundamentally on a comparison between women and men’ (Otto 2010: 355).

The EU’s history of combating discrimination on grounds of gender dates back to 1957 when the European conomic Community (C) was founded by the Treaty establishing the uropean conomic Community (TC). ne of the main obectives of the treaty was to set up a common market by, amongst other things, removing the obstacles to the free movement of persons, goods, services and capital. To this end, the TC introduced the principle of equal remuneration for equal work between male and female workers (rt. 119). The intention of this stipulation was to avoid distortions of market competition since inter alia unequal pay could have provided some ember States competitive advantages due to lower salary rates. The principle of equal pay for men and women was made legally binding through Council irective (511C) of 10 ebruary 195 and the qual Treatment irective (20C) of 9 ebruary 19 stipulated the prohibition of direct and indirect discrimination on grounds of gender in the field of employment. The scope of law and measures concerning equality between men and women was broadened by gradually including issues with regard to pregnancy and parental leave and by introducing action programmes and the principle of gender mainstreaming.

Today, primary law29 contains not only the above mentioned provision on equal pay, which is laid down in in rt. 15 of the Treaty on the unctioning of the uropean nion (T), stating that each ember State ‘shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied’. The article further stipulates that the

uropean arliament and the Council, acting in accordance with the ordinary legislative procedure, and after consulting the conomic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.

rt. 15 also provides for the possibility of positive measures:

ith a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any ember State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.

29rimary law refers to the supreme source of law comprising the founding treaties as well as amendments to these treaties and the treaty of accessions. Secondary law includes all law deriving from primary law (e.g. regulations, directives).

88 elierale o elierale o opportunities’ tacitly reinforces the basic organisation of society. It ‘still relies fundamentally on a Other provisions in EU primary law are to be found in the Treaty on European Union (TEU). rt. 2 of the comparison between women and men’ (Otto 2010: 355). TEU says that the

Union is founded on the values of respect for human dignity freedom democracy equality the rule of law and respect for human rights including the rights of persons belonging to minorities. These values are common to the ember States in a society in which pluralism non discrimination tolerance ustice solidarity and equality between women and men prevail. The EU’s history of combating discrimination on grounds of gender dates back to 1957 when the European conomic Community (C) was founded by the Treaty establishing the uropean conomic Community The TEU also contains a stipulation which defines that the EU shall combat social eclusion and (TC). ne of the main obectives of the treaty was to set up a common market by, amongst other things, discrimination and promote equality between women and men (rt. 3(3)). removing the obstacles to the free movement of persons, goods, services and capital. To this end, the TC introduced the principle of equal remuneration for equal work between male and female workers Under Title II the TEU contains provisions having general application such as the obective to eliminate (rt. 119). The intention of this stipulation was to avoid distortions of market competition since inter alia inequalities and to promote equality between men and women (rt. ) and the duty to aim at combating unequal pay could have provided some ember States competitive advantages due to lower salary rates. discrimination based on se in defining and implementing its policies and activities (rt. 10). owever the 30 The principle of equal pay for men and women was made legally binding through Council irective most important provision concerning the nondiscrimination on grounds of se is laid down in rt. 19 of (511C) of 10 ebruary 195 and the qual Treatment irective (20C) of 9 ebruary 19 the TEU which confers on the EU the power to take appropriate action to combat discrimination based stipulated the prohibition of direct and indirect discrimination on grounds of gender in the field of on se racial or ethnic origin religion or belief disability age or seual orientation. employment. The scope of law and measures concerning equality between men and women was rt. 153 TEU stipulates that the Union shall support and complement the activities of the ember States broadened by gradually including issues with regard to pregnancy and parental leave and by introducing with regard to ‘equality between men and women with regard to labour market opportunities and action programmes and the principle of gender mainstreaming. treatment at work.’ Today, primary law29 contains not only the above mentioned provision on equal pay, which is laid down The harter of undamental ights of the European Union (EU) includes se as grounds of in in rt. 15 of the Treaty on the unctioning of the uropean nion (T), stating that each ember discrimination in its nondiscrimination clause (rt. 21). In addition rt. 23 deals with equality between State ‘shall ensure that the principle of equal pay for male and female workers for equal work or work of women and men: ‘Equality between women and men must be ensured in all areas, including employment, equal value is applied’. The article further stipulates that the work and pay. The principle of equality shall not prevent the maintenance or adoption of measures uropean arliament and the Council, acting in accordance with the ordinary legislative providing for specific advantages in favour of the underrepresented sex.’ procedure, and after consulting the conomic and Social Committee, shall adopt measures to There are several directives which cover the issue of gender. In the following the most important will be ensure the application of the principle of equal opportunities and equal treatment of men and presented: women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.  irective 2005E of the European arliament and of the ouncil of 5 uly 200 on the implementation of the principle of equal opportunities and equal treatment of men and women in rt. 15 also provides for the possibility of positive measures: matters of employment and occupation (recast): The recast directive brings together different se ith a view to ensuring full equality in practice between men and women in working life, the equality directives and incorporates some case law of the European ourt of ustice (EU). Its aim is principle of equal treatment shall not prevent any ember State from maintaining or adopting ‘to clarify and bring together in a single text the main provisions regarding access to employment, measures providing for specific advantages in order to make it easier for the underrepresented including promotion and to vocational training as well as working conditions including pay and sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional occupational social security schemes’ (Burri and Prechal 2014: 8). careers.  irective 20101EU of the European arliament and of the ouncil of 7 uly 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a selfemployed capacity and repealing ouncil irective 13EE.

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 ouncil irective 28EE of 1 ctober 12 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual irective within the meaning of rt. 1 (1) of irective 81EE).  ouncil irective 201018E of 8 arch 2010 implementing the revised ramework greement on parental leave concluded by BEEPE, EPE, EEP and E and repealing irective 4E.  ouncil irective 200411E of 1 ecember 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services.

n addition to the socalled ‘hard’ law on gender issues mentioned above, the European Commission has developed and implemented the following strategies and programmes:

 oadmap or eualit eteen omen and men determined six priority fields for E action on gender equality: equal economic independence for women and men reconciliation of private and professional life equal representation in decisionmaking bodies eradication of all forms of genderbased violence elimination of gender stereotypes promotion of gender equality in external and development policies. The Roadmap pursued a ‘dual approach of gender equality based on gender mainstreaming (the promotion of gender equality in all policy areas and activities) and specific measures’ (COM(2006) 92 final: 2).  trate or eualit eteen omen and men defines five priority areas for E action including equal economic independence equal pay for equal work and work of equal value equality in decision making, dignity integrity and an end to genderbased violence and gender equality in external actions as well as a section on horiontal issues such as gender roles and legislation (European ommission 2011). he trategy is based on the socalled Women’s Charter, a declaration by the European Commission on the occasion of the 2010 International Women’s Day. With the declaration of the Charter the Commission emphasises its objective to ‘reiterate and strengthen the European ommissions commitment to making equality between women and men a reality. e will do this by strengthening the gender perspective in all our policies throughout our term of office and by bringing forward specific measures to promote gender equality’ (COM(2010)8 final).  n 200, the ouncil of the E adopted the first uropean at or ender ualit. he pact proposed measures in three areas: closing gender gaps and combating gender stereotypes in the labour market promoting better worklife balance for all and reinforcing governance through gender mainstreaming and better monitoring (ouncil of the European nion 200: 228). second European Pact for ender Equality was adopted at the Employment, ocial Policy, ealth and onsumer ffairs ouncil meeting on arch 2011. he Pact applies to the period 20112020 and contains three areas of action: o losing the gender gaps in employment and social protection, including the gender pay gap and focusing on three main areas including employment, education and promoting social inclusion (reduction of poverty) o Promoting better worklife balance for women and men and o ombating all forms of violence against women.

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 ouncil irective 28EE of 1 ctober 12 on the introduction of measures to encourage imilar to the first act, the second act also enlists a range of measures for each area. improvements in the safety and health at work of pregnant workers and workers who have recently  roe strate given birth or are breastfeeding (tenth individual irective within the meaning of rt. 1 (1) of On March 2010, the European Commission released the Communication or smart sstanae an nse roth irective 81EE). . The tenyear strategy aims at turning the EU into ‘a smart, sustainable and inclusive economy delivering high levels of employment, productivity and social  ouncil irective 201018E of 8 arch 2010 implementing the revised ramework greement on cohesion’. The objective of gender equality and special measures in this regard are mentioned in the parental leave concluded by BEEPE, EPE, EEP and E and repealing irective areas of employment, promotion of lifewor balance and poverty reduction. 4E.  ouncil irective 200411E of 1 ecember 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services. The abovementioned trate or eat eteen omen an men contains a section on ‘Gender equality in external actions’. The Strategy proposes four key actions to be undertaken by the n addition to the socalled ‘hard’ law on gender issues mentioned above, the European Commission has Commission: developed and implemented the following strategies and programmes:  ‘Monitor and support adherence to the Copenhagen criteria for accession to the E in the field of  oadmap or eualit eteen omen and men determined six priority fields for E equal treatment between women and men, and assist Western alan countries and Turey with the action on gender equality: equal economic independence for women and men reconciliation of transposition and enforcement of legislation. private and professional life equal representation in decisionmaking bodies eradication of all forms  Implement the E lan of ction on Gender Equality and Women’s Empowerment in Development of genderbased violence elimination of gender stereotypes promotion of gender equality in external (2010201). and development policies. The Roadmap pursued a ‘dual approach of gender equality based on  Continue to encourage E1 partner countries to promote gender equality through regular policy gender mainstreaming (the promotion of gender equality in all policy areas and activities) and specific dialogue, echange of eperience and by eploring possibilities for assistance under the European measures’ (COM(2006) 92 final: 2). eighbourhood and artnership Instrument.  trate or eualit eteen omen and men defines five priority areas for E action  Further integrate gender considerations into EU humanitarian aid.’ (European Commission 2011: 30). including equal economic independence equal pay for equal work and work of equal value equality in decision making, dignity integrity and an end to genderbased violence and gender equality in The trate rameor an ton an on man hts an emora defines ey areas and external actions as well as a section on horiontal issues such as gender roles and legislation (European priorities of EU’s human rights action. It emphasises the EU’s commitment to fight discrimination in all its ommission 2011). he trategy is based on the socalled Women’s Charter, a declaration by the forms including discrimination on grounds of gender. The Framework stresses that the ‘EU will continue European Commission on the occasion of the 2010 International Women’s Day. With the declaration to campaign for the rights and empowerment of women in all contets through fighting discriminatory of the Charter the Commission emphasises its objective to ‘reiterate and strengthen the European legislation, genderbased violence and marginalisation.’ (Council of the European Union 2012) To this end, ommissions commitment to making equality between women and men a reality. e will do this by the ction lan contains several actions in this field such as conducting a targeted campaign on political strengthening the gender perspective in all our policies throughout our term of office and by bringing and economic participation of women with special focus on countries in transition or systematically forward specific measures to promote gender equality’ (COM(2010)8 final). including gender equality in the mandates of E missions and operations and in their benchmars,  n 200, the ouncil of the E adopted the first uropean at or ender ualit. he pact proposed planning and evaluation (Ibid. for gender in the contet of culture and religion, see Chapter II.C.2). measures in three areas: closing gender gaps and combating gender stereotypes in the labour market promoting better worklife balance for all and reinforcing governance through gender mainstreaming and better monitoring (ouncil of the European nion 200: 228). second European Pact for ased on the legal provisions and policies mentioned above the E broadly follows three approaches 2 ender Equality was adopted at the Employment, ocial Policy, ealth and onsumer ffairs ouncil when it comes to conceptualising and implementing gender policies (ombardo and Meier 200: 26). meeting on arch 2011. he Pact applies to the period 20112020 and contains three areas of action:  ormal or legal equality: Equality between men and women is not only an important issue of E losing the gender gaps in employment and social protection, including the gender pay o primary law but also welldefined in secondary law as well as case law by the CE. gap and focusing on three main areas including employment, education and promoting social inclusion (reduction of poverty) o Promoting better worklife balance for women and men and 1European eighbourhood olicy o ombating all forms of violence against women. 2 Consult http:ec.europa.eujusticegenderequalityindeen.htm ast accessed 16 pril 201.

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It can be concluded that equality between men and women is a basic principle of EU law. For a long time it has been argued that one of the major shortcomings of EU gender policy and law is its narrow focus on the economic and business sector. Furthermore, ‘the lack of clarity, effective implementation, and enforcement of directives – in old and new member states’ (Roth 2013: 2) has been criticised. Walby (200: 7) mentions several limitations concerning the EU gender policy: the EU’s primary concern with standard employment, the androcentric norms of EU law and the negligence of deeprooted causes of inequality, the uneven implementation of EU equality directives, the absence of EU intervention in several key areas of gender inequality, the implementation of the principle of gender mainstreaming through hard law interventions or a decline in the support of gender equality. The principle of gender mainstreaming is controversially discussed as having ‘the potential to permanently transform the language and images of policy making to become more inclusive and sensitive to diversity beginning with sex’ (Woodward 200: ) on the one hand, or on the other hand having negative impacts and undermining feminist approaches (oth 2013: ). ombardo and Meier (200: 2) argue that although the EU has considerably broadened its agenda on gender equality issues beyond the narrow economic focus, this expansion nevertheless is fragmentary and nonbinding, and reflects a lack of competence and ‘the development of a consistent mainstreaming of gender equality objectives across the various policy areas (Ibid.). lso och and rgl (200) stress the huge impact the EU has had on advancing gender equality policies in various fields, however, they also highlight the reproduction of gender imbalances in EU policies by not solving the issue of care labour and, thus, by contributing to construct ‘gender subordination in a new way. It creates gender divisions of labour by inserting women into the common labour market as flexible workers while ensuring that they remain available for unpaid care work. The EU reveals itself as a new form of the patriarchal state.’ (Locher and Prügl 2009: 187)

Gender equality is one of the most important focus regarding EU nondiscrimination law and policies. The principle of gender equality has played a significant role in EU politics since the beginning of European integration and is not only anchored as a basic principle in primary law but also the objective of a broad range of secondary law and other policies. In order to address the complexity of gender inequalities the EU pursues a multifaceted gender equality approach comprising not only legal initiatives but also positive or affirmative action and the principle of gender mainstreaming. In addition to the internal dimension, gender equality is integrated in external policies such as humanitarian aid, development policies and the accession process. However, the EU’s approach to gender is also criticised for being economically limited, based on androcentric norms, unevenly implemented and for neglecting deeprooted structures of gender inequality.

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 ositive or affirmative action are measures with the objective to enhance the underrepresented and disadvantaged sex and promote e ato equality.  Gender mainstreaming aims at including a gender perspective and the principle of gender equality in all its policies, strategies and programmes and, hence, acknowledges the gendered nature of political n everyday language sexual orientation involves the idea that individuals have certain sexual preferences processes and institutions. towards either men or women or both or none. he ogyakarta Principles,33 which are principles on the It can be concluded that equality between men and women is a basic principle of EU law. For a long time application of HRL in relation to sexual orientation and gender identity, define sexual orientation as it has been argued that one of the major shortcomings of EU gender policy and law is its narrow focus on follows: ‘Sexual orientation is understood to refer to each person’s capacity for profound emotional, the economic and business sector. Furthermore, ‘the lack of clarity, effective implementation, and affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different enforcement of directives – in old and new member states’ (Roth 2013: 2) has been criticised. Walby gender or the same gender or more than one gender.’ (Yogyakarta Principles 2007: 6, 8) (200: 7) mentions several limitations concerning the EU gender policy: the EU’s primary concern with he choice of terminology in reference to the concept of sexual orientation, however, is still uite standard employment, the androcentric norms of EU law and the negligence of deeprooted causes of disputed. s indicated above, the term homosexuality still is shaped by the essentialist and male heritage. inequality, the uneven implementation of EU equality directives, the absence of EU intervention in several At first glance, ‘sexual orientation’ not only seems to be timeless but also a neutral term. However, it also key areas of gender inequality, the implementation of the principle of gender mainstreaming through appears to be problematic because in common language sexual orientation is mostly euated with those hard law interventions or a decline in the support of gender equality. The principle of gender forms of sexuality deviating from the heterosexual norm. mainstreaming is controversially discussed as having ‘the potential to permanently transform the language and images of policy making to become more inclusive and sensitive to diversity beginning with heoretical approaches to capture sexual orientation can roughly be divided into two branches: sex’ (Woodward 200: ) on the one hand, or on the other hand having negative impacts and undermining feminist approaches (oth 2013: ). ombardo and Meier (200: 2) argue that although the  Essentialist approaches conceptualise sexuality and sexual orientation as an ahistorical phenomenon EU has considerably broadened its agenda on gender equality issues beyond the narrow economic focus, that is a part of a human being irrespective of the cultural context. hus, homosexuality and this expansion nevertheless is fragmentary and nonbinding, and reflects a lack of competence and ‘the heterosexuality are seen as essentially different determined by biological factors such as hormones development of a consistent mainstreaming of gender equality objectives across the various policy areas or genes and independent from cultural influences (see e.g. eLamater and Hyde 1998). (Ibid.). lso och and rgl (200) stress the huge impact the EU has had on advancing gender equality  onstructivist approaches assume that sexuality and sexual orientation are determined by social and policies in various fields, however, they also highlight the reproduction of gender imbalances in EU policies cultural influences and therefore are a contingent and historical construct (see e.g. utler 1990 by not solving the issue of care labour and, thus, by contributing to construct ‘gender subordination in a Pilcher and Whelehan 200). he French philosopher ichel Foucault significantly contributed to this new way. It creates gender divisions of labour by inserting women into the common labour market as debate by revealing the interrelation of power, knowledge and sexuality in modern times (Foucault flexible workers while ensuring that they remain available for unpaid care work. The EU reveals itself as a 1983: 1010). new form of the patriarchal state.’ (Locher and Prügl 2009: 187) he latter also raises uestions of gender identity and opens up the possibility of breaking up binary Gender equality is one of the most important focus regarding EU nondiscrimination law and policies. The gender structures and norms and to introduce other gender categories such as transgender, transsexual principle of gender equality has played a significant role in EU politics since the beginning of European or intersex. integration and is not only anchored as a basic principle in primary law but also the objective of a broad range of secondary law and other policies. In order to address the complexity of gender inequalities the Law can be seen as an integral aspect of the ‘great surface network’ through which sexuality is socially EU pursues a multifaceted gender equality approach comprising not only legal initiatives but also positive produced. t is both an important site at which the ‘formation of special knowledges’ about sexuality or affirmative action and the principle of gender mainstreaming. In addition to the internal dimension, are interpreted and reproduced and a vital nexus at which ‘controls and resistances’ around sexuality gender equality is integrated in external policies such as humanitarian aid, development policies and the are negotiated. (ohnson 2010: 72) accession process. However, the EU’s approach to gender is also criticised for being economically limited, based on androcentric norms, unevenly implemented and for neglecting deeprooted structures of gender inequality.

33 he ogyakarta Principles were drafted by the nternational ommission of urists, the nternational ervice for Human Rights and human rights experts from all over the world. lthough the Principles are not legally binding they are increasingly used by international organisations, e.g. ouncil of Europe, European Union gency for Fundamental Rights (FR).

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he fact that law in general as well as human rights in particular are biased against sexualities deviating from the heterosexual norm is a crucial point when it comes to the nexus between sexual orientation and human rights. he main point of criticism in this context was and is the explicit and implicit forms of exclusion from the human rights proect of those persons not meeting heterosexual norms.

 he et menson refers to all forms of legal discrimination against andor prohibition and criminalisation of same sex relations andor the exhibition of same sex affection. t includes prohibition and criminalisation of sexual acts and relations that do not correspond with the heterosexual norm or the negligence of sexual orientation as a grounds of discrimination in non discrimination law.  he mt menson refers to implicit norms human rights are based on which are discriminatory and exclusionary regarding persons who do not meet heterosexual norms. he main point of criticism concerns the implicit heteronormativity of (human) rights. eteronormativity describes practices, ideologies and standards of thinking which place heterosexuality as the norm of gender relations that structures subectivity, living conditions, symbolic order and social organisation and pushes people into two sexes, the sexual desires of which are directed towards the opposite sex (agenknecht 2007: 7). he claim is that (human) rights are implicitly based on heterosexual norms and, hence, are biased against persons deviating from this norm. he institution of marriage and the definition of family are textbook examples for heteronormative practices which are also apparent in human rights law. xcluding sexual minorities from this norm not only leads to social stigmatisation of these groups but also excludes sexual minorities from a broad range of rights and benefits linked to the institution of marriage and other family rights. he meaning of euality enshrined in human rights law conforms to the heterosexual norm. eteronormativity is exercised through human rights law in a subtle, implicit way: heterosexuality is presumed. It is ‘a position that is so unremarkable among heterosexuals that it becomes invisible as a structure’ (Phelan 2001: 35). Furthermore, it is highly disputed if including L persons into the human rights proect can actually transform its heteronormative bias and guarantee equality. Rahman argues that ‘not only do formal rights fail to address the social construction of differences because of their limited scope, but also that the discourse of rights may serve to compound social ineuality, since it is too often underpinned by essentialist constructions of differences’ (Rahman 1998: 82).

Sexual orientation was not a very high priority item on the agenda for many years although the uropean Parliament started discussing measures against discrimination on grounds of sexual orientation in the 80s. ue to intensive lobbying by interest groups sexual orientation was included in Art. of the Amsterdam reaty, which was later renumbered as Art. under the reaty of Lisbon. his provision gives the EU the power to ‘take appropriate action to combat discrimination based on (…) sexual orientation.’ In addition, the principle of nondiscrimination on grounds of sexual orientation was included in itle of the as a provision having general application in defining and implementing policies and activities.

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he fact that law in general as well as human rights in particular are biased against sexualities deviating ased on rt. 19 FEU the EU adopted the ouncil irective 20008E establishing a general framework from the heterosexual norm is a crucial point when it comes to the nexus between sexual orientation and for equal treatment in employment and occupation which prohibits amongst others grounds human rights. he main point of criticism in this context was and is the explicit and implicit forms of discrimination on grounds of sexual orientation in the employment sector. exclusion from the human rights proect of those persons not meeting heterosexual norms. Sexual orientation was further included in Art. 21 of CFREU which prohibits ‘any discrimination based on  he et menson refers to all forms of legal discrimination against andor prohibition and any grounds such as sex, (…) or sexual orientation’. Gender identity is not explicitly included in the Charter, criminalisation of same sex relations andor the exhibition of same sex affection. t includes but interpretation of case law by the ourt of ustice of the European Union (EU) clearly sees gender prohibition and criminalisation of sexual acts and relations that do not correspond with the identity with respect to transgender persons who underwent, are undergoing or intend to undergo gender heterosexual norm or the negligence of sexual orientation as a grounds of discrimination in non reassignment as covered by EU law. discrimination law. exual orientation is further addressed in the following secondary law:  he mt menson refers to implicit norms human rights are based on which are discriminatory and exclusionary regarding persons who do not meet heterosexual norms. he main point of criticism  irective 201195EU of the European Parliament and of the ouncil of 13 ecember 2011 on concerns the implicit heteronormativity of (human) rights. eteronormativity describes practices, standards for the qualification of thirdcountry nationals or stateless persons as beneficiaries of ideologies and standards of thinking which place heterosexuality as the norm of gender relations that international protection, for a uniform status for refugees or for persons eligible for subsidiary structures subectivity, living conditions, symbolic order and social organisation and pushes people protection, and for the content of the protection granted. rticle 10 says that a particular social group into two sexes, the sexual desires of which are directed towards the opposite sex (agenknecht 2007: that might fear persecution ‘might include a group based on a common characteristic of sexual 7). he claim is that (human) rights are implicitly based on heterosexual norms and, hence, are biased orientation. (…) Gender related aspects, including gender identity, shall be given due consideration against persons deviating from this norm. he institution of marriage and the definition of family are for the purposes of determining membership of a particular social group or identifying a characteristic textbook examples for heteronormative practices which are also apparent in human rights law. of such a group.’ xcluding sexual minorities from this norm not only leads to social stigmatisation of these groups but  irective 20038E of the European Parliament and of the ouncil of 29 pril 200 on the right of also excludes sexual minorities from a broad range of rights and benefits linked to the institution of citiens of the Union and their family members to move and reside freely within the territory of the marriage and other family rights. he meaning of euality enshrined in human rights law conforms to Member States lays down that ‘Member States should implement this Directive without the heterosexual norm. eteronormativity is exercised through human rights law in a subtle, implicit discrimination between the beneficiaries of this Directive on grounds such as sex, (…) or sexual way: heterosexuality is presumed. It is ‘a position that is so unremarkable among heterosexuals that orientation.’ it becomes invisible as a structure’ (Phelan 2001: 35). Furthermore, it is highly disputed if including  ouncil irective 20038E of 22 eptember 2003 on the right to family reunification states that L persons into the human rights proect can actually transform its heteronormative bias and ‘Member States should give effect to the provisions of this irective without discrimination on the guarantee equality. Rahman argues that ‘not only do formal rights fail to address the social basis of sex, (…) or sexual orientation.’ construction of differences because of their limited scope, but also that the discourse of rights may  ouncil Framework ecision 2008913 of 28 ovember 2008 on combating certain forms and serve to compound social ineuality, since it is too often underpinned by essentialist constructions of expressions of racism and xenophobia by means of criminal law policies and practice concerning differences’ (Rahman 1998: 82). sexual orientation in general.  he irective 201229EU of the European Parliament and of the ouncil of 25 ctober 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing ouncil Framework ecision 2001220 considers the existence of specific protection needs of victims of crimes committed based on personal characteristics such as sexual orientation, Sexual orientation was not a very high priority item on the agenda for many years although the gender and gender identity or expression. uropean Parliament started discussing measures against discrimination on grounds of sexual orientation  n 2 uly 2008, the European ommission released a Proposal for a ouncil irective on implementing in the 80s. ue to intensive lobbying by interest groups sexual orientation was included in Art. of the principle of equal treatment between persons irrespective of religion or belief, disability, age or the Amsterdam reaty, which was later renumbered as Art. under the reaty of Lisbon. his provision sexual orientation in order to expand the scope of protection beyond the field of employment and gives the EU the power to ‘take appropriate action to combat discrimination based on (…) sexual occupation. owever, the irective has not been adopted yet due to a lack of approval by the ember orientation.’ In addition, the principle of nondiscrimination on grounds of sexual orientation was included tates. in itle of the as a provision having general application in defining and implementing policies and activities.

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here is a broad range of policies and practices concerning sexual orientation and transphobia in the EU. he following are the most recent developments

 ‘The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens’ was adopted by the European Council in December 2 and defines the policy priorities in the area of ustice and home affairs for 212014. It lays down that ‘measures to tackle discrimination (…) and homophobia must be vigorously pursued.’ (European Council 2009)  he European Commission Action lan mplementing the Stocholm rogramme lays down that ‘all policy instruments available will be deployed (…) to fight all forms of discrimination (…) and homophobia.’ (European Commission 2010: 3)  n une 21, the Council of the European Union oring arty on uman Rights (CM) adopted a oot to romote an rotet the noment o a man hts esan a sea an ransener eoe with the objective to ‘help the EU institutions, EU Member State capitals, EU Delegations, Representations and Embassies to react proactively to violations of the human rights of LGBT people, and to address structural causes behind these violations’ (COHOM 2010: 1).  n anuary 21, the European arliament adopted a Report on the EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity.  he European Union Agency for Fundamental Rights (FRA) has repeatedly addressed the topic of G rights and carried out surveys e.g. on homophobia, transphobia and discrimination on grounds of sexual orientation and gender identity.

he trate rameor an ton an on man hts an emora which defines ey areas and priorities of EU’s human rights action, stresses the commitment of the EU to combat all forms of discrimination including discrimination on grounds of sexual orientation. he Action lan lays down that the Council shall develop public EU guidelines, building upon the EUs G (lesbian, gay, bisexual, transsexual) toolkit and that the Member States and the EEAS shall ‘develop an EU strategy on how to cooperate with third countries on human rights of G persons, including within the U and the Council of Europe. romoting adoption of commitments in the area of human rights of G within the SCE, including through organisation of a public event in the OSCE framework’ (Council of the European Union 212). n 2une 21, the Council of the EU adopted enes to romote an rotet the enoment o a hman rhts esan a sea transener an nterse (G) persons aiming at enhancing human rights of G persons within its external action and providing guidance for EU institutions and EU Member States in this context (see also Chapter .C.1 and 2).

Although sexual orientation was included in EU nondiscrimination law, the scope of EU non discrimination concerning sexual orientation is restricted to the economic and employment sector. nitiatives to adopt a broader field of application have failed so far. n general, it can be said that EU law is characterised by implicit heteronormativity. ersons deviating from the heterosexual norm, e.g. regarding the definition of family, have only recently, gradually and in a fragmented way been included in

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EU norms. A further point of criticism is the ‘one size fits all’ approach towards multiple forms of here is a broad range of policies and practices concerning sexual orientation and transphobia in the EU. discrimination which treats all marginalised groups the same way and ‘is based on an incorrect assumption he following are the most recent developments of sameness or euivalence of the social categories connected to ineualities and of the mechanisms and processes that constitute them’ (Verloo 2006: 223). In addition, the treatment of sexual orientation as a  ‘The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens’ was minority issue is problematic: adopted by the European Council in December 2 and defines the policy priorities in the area of ustice and home affairs for 212014. It lays down that ‘measures to tackle discrimination (…) and LGBT single issue policies tend to treat this group in isolation, thus adopting a minoritizing homophobia must be vigorously pursued.’ (European Council 2009) perspective which focuses more on the effects of ineuality for this group than on the underlying  he European Commission Action lan mplementing the Stocholm rogramme lays down that ‘all causes. As a result, overlooking the structural dimension leads to generating an LGBT cluster policy instruments available will be deployed (…) to fight all forms of discrimination (…) and understood in terms of a social reality, without uestioning the fact that the very existence of this homophobia.’ (European Commission 2010: 3) group is the product of social structures which set up predetermined divisions and hierarchies  n une 21, the Council of the European Union oring arty on uman Rights (CM) adopted between bodies, genders and sexualities. (Cruells and CollPlanas 2013: 134) a oot to romote an rotet the noment o a man hts esan a sea an ecently, LGBTI issues have not only been addressed by internal policies but also have been increasingly ransener eoe with the objective to ‘help the EU institutions, EU Member State capitals, taken into consideration in the context of external relations. EU Delegations, Representations and Embassies to react proactively to violations of the human rights of LGBT people, and to address structural causes behind these violations’ (COHOM 2010: 1).  n anuary 21, the European arliament adopted a Report on the EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity.  he European Union Agency for Fundamental Rights (FRA) has repeatedly addressed the topic of G rights and carried out surveys e.g. on homophobia, transphobia and discrimination on grounds of isability is a contested concept which has considerably altered its meaning over the last decades. Article sexual orientation and gender identity. 1 of the Conenton on the hts o ersons th sates (CP) defines disability as follows: ‘Persons with disabilities include those who have longterm physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.’ This definition reflects the more recent developments of disability he trate rameor an ton an on man hts an emora which defines ey areas theory and research, which is based on the assumption that there is a difference between impairment and priorities of EU’s human rights action, stresses the commitment of the EU to combat all forms of and disability. The Centre for isability Studies in Leeds defines a disabled person as discrimination including discrimination on grounds of sexual orientation. he Action lan lays down that the Council shall develop public EU guidelines, building upon the EUs G (lesbian, gay, bisexual, a person with an impairment who experiences disability. isability is the result of negative transsexual) toolkit and that the Member States and the EEAS shall ‘develop an EU strategy on how to interactions that take place between a person with an impairment and her or his social cooperate with third countries on human rights of G persons, including within the U and the Council environment. Impairment is thus part of a negative interaction, but it is not the cause of, nor does of Europe. romoting adoption of commitments in the area of human rights of G within the SCE, it justify, disability (Centre for isability Studies n.d.: 1). including through organisation of a public event in the OSCE framework’ (Council of the European Union This model, which is also called the ‘social model of disability’ (Hughes and Paterson 199 Oliver 1990) 212). n 2une 21, the Council of the EU adopted enes to romote an rotet the enoment can be distinguished from the preceding ‘medical’ or ‘individual’ model (Oliver 1990; Siebers 2008). The o a hman rhts esan a sea transener an nterse (G) persons aiming at enhancing latter conceptualises disability as a ‘personal tragedy’ and an individual problem with negative human rights of G persons within its external action and providing guidance for EU institutions and connotations such as dependence, abnormality, faultiness or deficiency. isabled people are seen as the EU Member States in this context (see also Chapter .C.1 and 2). problem. They have to be cured or adapted in a way to fit into the ‘normal’ way of living or otherwise isolated or segregated and treated through the means of health care and welfare state. Oliver stresses Although sexual orientation was included in EU nondiscrimination law, the scope of EU non that discrimination concerning sexual orientation is restricted to the economic and employment sector. the very language of welfare provision serves to deny disabled people the right to be treated as nitiatives to adopt a broader field of application have failed so far. n general, it can be said that EU law fully competent, autonomous individuals, as active citizens. Care in the community, caring for is characterised by implicit heteronormativity. ersons deviating from the heterosexual norm, e.g. regarding the definition of family, have only recently, gradually and in a fragmented way been included in

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people, providing services through care managers and care worers all structure the welfare discourse in particular ways and imply a particular view of disabled people (Oliver 199: n.p.).

In contrast, the social model sees disability as a problem of the society. It refuses to define disability as an individual defect and deficiency, but ‘as the product of social injustice, one that requires not the cure or elimination of the defective person but significant changes in the social and built environment’ (Siebers 2008: 3). It is not the impairment which is the problem but the norms of the society and the interaction with other individuals which disable these persons. Thus, it is the society which has to be changed and altered because it is the ‘society’s failure to provide appropriate services and adequately ensure the needs of disabled people are fully taken into account in its social organisation.’ (Oliver 1990: n.p.)

Viewing disability as a human rights issue is a rather new development which reached its pea in arch 200 when the P was signed and subsequently ratified by 11 States. As indicated above, the P codifies a rather recent notion of disability, which focuses on the society as a whole that erects barriers to eclude people with different needs and that ‘fails to consider human differences’ (Degener and Quinn 2002). The legal conception of the ‘social’ model of disability takes into account the discriminating structure of a society. From a human rights point of view, the ‘medical’ or ‘individual’ model of disability has to be reected as it neglects to acnowledge persons with disabilities as equal members of society and implies discriminatory measures and treatment of disabled people. The human rights based approach to disability is commonly perceived to be the single most important political development in the struggle for equal participation by people with mental and physical disabilities (icenbach 2001: 6) by disability activists. However, the following points are discussed as problematic issues in this contet: The necessity of defining disability in legal terms raises the question how broad or narrow a definition of disability should be and if all persons who might eperience discrimination on grounds of disability are covered by the definition (egener 2006: n.p.). Also the focus on individual rights still remains a problematic challenge for disability rights as they fail to adequately acnowledge the significance of community and inter relationships and discriminatory structures and institutions.

Brickenbach has argued that there are four ‘models of legal expression of human rights for persons with disabilities’ (Brickenbach 2001: 568). Enforceable antidiscrimination legislation, constitutional guarantees of equality including the nondiscrimination of disabled persons, specific entitlement programs that entitle persons with disabilities to claim certain benefits (e.g. educational grants, free assistance, financial privileges) which aim at addressing the distributional inustices which persons with disabilities frequently have to face, and voluntary human rights manifestos epressing social commitments that are ‘not enforced by any mechanism of the stated, legal or administrative’ (Ibid.: 2).

The antidiscrimination approach has gained immensely in importance over the last decades and has been quite successful to define discrimination against disabled people as a human rights violation. However, this approach also has shortcomings. esides those mentioned above, nondiscrimination law requires

98 eerae o eerae o people, providing services through care managers and care worers all structure the welfare the definition of disabilities protected by nondiscrimination law which leaves room for exclusion. discourse in particular ways and imply a particular view of disabled people (Oliver 199: n.p.). Specific entitlements focus on compensating an unfair distribution of resources that restrict the full participation in the society. It has been argued, however that In contrast, the social model sees disability as a problem of the society. It refuses to define disability as an individual defect and deficiency, but ‘as the product of social injustice, one that requires not the cure or the problem with entitlement programs for persons with disabilities is that they are perceived to elimination of the defective person but significant changes in the social and built environment’ (Siebers be for a minority, a special group with special needs and, as such, not part of the mainstream. This 2008: 3). It is not the impairment which is the problem but the norms of the society and the interaction has not served the interests of human rights. nd this indeed may be the underlying problem that with other individuals which disable these persons. Thus, it is the society which has to be changed and needs to be addressed (Ibid.: 59). altered because it is the ‘society’s failure to provide appropriate services and adequately ensure the needs of disabled people are fully taken into account in its social organisation.’ (Oliver 1990: n.p.) Viewing disability as a human rights issue is a rather new development which reached its pea in arch There are several provisions in primary treaties related to disability. The provisions having general 200 when the P was signed and subsequently ratified by 11 States. As indicated above, the P application laid down in Title II of the TF include the aim to combat discrimination on grounds of codifies a rather recent notion of disability, which focuses on the society as a whole that erects barriers disability in defining and implementing the Union’s policies and activities. Furthermore, rt. 19 in the to eclude people with different needs and that ‘fails to consider human differences’ (Degener and Quinn chapter on nondiscrimination and citienship enables the to take appropriate action to combat 2002). The legal conception of the ‘social’ model of disability takes into account the discriminating discrimination based on disability. lso F includes disability as a ground in rt. 21 on non structure of a society. From a human rights point of view, the ‘medical’ or ‘individual’ model of disability discrimination. has to be reected as it neglects to acnowledge persons with disabilities as equal members of society and implies discriminatory measures and treatment of disabled people. The human rights based approach to Disability is further covered by the ouncil Directive 20008, which prohibits discrimination in the disability is commonly perceived to be the single most important political development in the struggle for fields of access to employment, conditions of employment, including dismissals and pay, access to equal participation by people with mental and physical disabilities (icenbach 2001: 6) by disability vocational guidance and training and worker and employer organisations. activists. However, the following points are discussed as problematic issues in this contet: The necessity of defining disability in legal terms raises the question how broad or narrow a definition of disability should On 0 arch 200, the signed the D and its Optional rotocol. fter the ouncil adopted a decision be and if all persons who might eperience discrimination on grounds of disability are covered by the on the conclusion of the onvention on 26 ovember 2009, the onvention entered into force with definition (egener 2006: n.p.). Also the focus on individual rights still remains a problematic challenge respect to the on 22 anuary 2011.5 nnex II of the ouncil Decision states that the is bound by for disability rights as they fail to adequately acnowledge the significance of community and inter the onvention in regard to its competences (ouncil Decision 20108). relationships and discriminatory structures and institutions. Brickenbach has argued that there are four ‘models of legal expression of human rights for persons with The uropean ommission declared the year 200 the uropean ear of eople with Disabilities. disabilities’ (Brickenbach 2001: 568). Enforceable antidiscrimination legislation, constitutional Subsequently, the following policy initiatives and programmes were implemented: guarantees of equality including the nondiscrimination of disabled persons, specific entitlement  Commnaton rom the Commsson o toer , a oortntes or eoe th programs that entitle persons with disabilities to claim certain benefits (e.g. educational grants, free sates a roean aton an (O(200) 650 final) was implemented between 200 and 2010 assistance, financial privileges) which aim at addressing the distributional inustices which persons with and aimed at fully implementing the Directive on equal treatment in employment and occupation, disabilities frequently have to face, and voluntary human rights manifestos epressing social mainstreaming disability issues throughout ommunity policies and improving accessibility for all. commitments that are ‘not enforced by any mechanism of the stated, legal or administrative’ (Ibid.: 2).  roean sat trate : enee Commtment to a arrerree roe (O(2010) The antidiscrimination approach has gained immensely in importance over the last decades and has been 636 final), a Communication by the European Commission with the objective ‘to empower people quite successful to define discrimination against disabled people as a human rights violation. However, with disabilities so that they can enjoy their full rights, and benefit fully from participating in society this approach also has shortcomings. esides those mentioned above, nondiscrimination law requires

Translating disability into a legal definition means laying down ‘objective’ criteria stipulating what counts as a disability and what not, which might exclude certain forms of disabilities. 5 See http:ec.europa.eujusticediscriminationdisabilitiesconventionindexen.htm ast accessed 21 Feb 201.

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and in the European economy’ (COM(2010) 636 final: 4). Eight areas for action were defined by the Commission accessibility, participation, euality, employment, education and training, social protection, health and eternal action  n ovember , the European commission released a Commsson ta Worn oment omann the roean sat trate enewed Commitment to a arrierree Europe. The document ‘describes the present situation as regards disability in the EU, refers to evidence and supporting data, underpins the new strategy and summarises the contributions received in the public and the stakeholders’ consultation rounds’ (SEC(2010) 1323 final).

The roean sat trate enee Commtment to a arrerree roe also provides for action in the field of external action. It says, that the ‘EU and the Member States should promote the rights of people with disabilities in their eternal action, including EU enlargement, neighbourhood and development programmes.’ (COM(2010) 636 final: 9) It further lays down that EU action will support and complement national initiatives to address disability issues and promote agreement and commitment on disability issues in international for a bid)

The trate rameor an ton an on man hts an emora contains a commitment of the EU to advocate for the rights of persons with disabilities mong the actions laid out in the ction lan the Commission and the EE are responsible for promoting the rights of persons with disabilities in development programmes, in the framewor of the European isability trategy and through the implementation of the U Convention on the ights of ersons with isabilities The lan further reuests the Commission to update the ane ote on sat an eeoment, which was initially drafted in , to be in line with the U Convention on the ights of erson with isabilities The said Guidance Note ‘seeks to raise awareness of the issues among staff working on EU development cooperation at headuarters and in delegations and provide some general guidance on including people with disabilities in development processes’ (Guidance Note 2012: 2).

y adopting the C the EU has joined one of the most recent and progressive human rights documents on disability and thus is committed to a definition of disability which focuses on the society as the disabling factor for persons affected owever, in regard to EU nondiscrimination law, nondiscrimination on grounds of disability falls into the restricted scope of the employment and economic sector and, thus, is uite limited in addressing the issue in a comprehensive way urthermore, disability has been increasingly taen into consideration in the contet of EU eternal relations EU institutions are obliged to enhance the rights of disabled persons in regard to enlargement, neighbourhood and development policies and is raising awareness for the rights of disabled people among its staff woring in the eternal relations sector

100 eerae o eerae o and in the European economy’ (COM(2010) 636 final: 4). Eight areas for action were defined by the Commission accessibility, participation, euality, employment, education and training, social protection, health and eternal action  n ovember , the European commission released a Commsson ta Worn oment omann the roean sat trate enewed Commitment to a arrierree Despite the fact, that ‘only age encompasses categories that every living person potentially joins’ (North Europe. The document ‘describes the present situation as regards disability in the EU, refers to and iske 2012: 92), there is little academic research on the concepts and definitions of age and age evidence and supporting data, underpins the new strategy and summarises the contributions received related ineualities and discrimination. In general, age refers to the life span of a person – consisting of in the public and the stakeholders’ consultation rounds’ (SEC(2010) 1323 final). different phases such as childhood, youth, adulthood or old age – in the course of which a person faces physical changes and he or she has or may have altering needs, possibilities, duties and rights. In general, a distinction is made between demographic ageing and social ageing. emographic ageing refers either to chronological ageing – a change of age all people experience – or prospective ageing – defined by the The roean sat trate enee Commtment to a arrerree roe also number of expected remaining years. Social ageing ‘is a social construct involving expectations as well as provides for action in the field of external action. It says, that the ‘EU and the Member States should institutional constraints about how older people work and live as they age’ (European Centre Vienna 2013: promote the rights of people with disabilities in their eternal action, including EU enlargement, 3). Besides this dimension of ‘individual ageing’ (Weber 2012: 453) there is a growing discussion on neighbourhood and development programmes.’ (COM(2010) 636 final: 9) It further lays down that EU ‘population ageing’, which refers to ‘the process by which older individuals become a proportionally larger action will support and complement national initiatives to address disability issues and promote share of the total population’ (United Nations 2002: 1). This democratic change poses many challenges agreement and commitment on disability issues in international for a bid) for governments concerning health systems, retirement schemes, ensuring intergenerational cohesion or social ustice. The trate rameor an ton an on man hts an emora contains a commitment of the EU to advocate for the rights of persons with disabilities mong the actions laid out in the ction lan Originally, the term ageism connoted ‘a set of social relations that discriminate against older people and the Commission and the EE are responsible for promoting the rights of persons with disabilities in set them apart as being different by defining and understanding them in an oversimplified, generalised development programmes, in the framewor of the European isability trategy and through way.’ (Minichiello, Browne and Kendig 2000: 253) Thus, initially ageism more or less exclusively referred the implementation of the U Convention on the ights of ersons with isabilities The lan further to discrimination and preudice against older people. The negative conseuences of ageism include(d) reuests the Commission to update the ane ote on sat an eeoment, which was initially ‘reduced social and economic opportunities, damage to selfesteem, and exacerbated physical health drafted in , to be in line with the U Convention on the ights of erson with isabilities The said problems’ (North and Fiske 2012: 982). Adding to the complexity of the concept of ageism, it has to be Guidance Note ‘seeks to raise awareness of the issues among staff working on EU development mentioned that there is also a positive dimension ‘via stereotypes of wisdom and happiness – in addition cooperation at headuarters and in delegations and provide some general guidance on including people to practical benefits such special tax breaks, discounts, and housing programs’ (Ibid.). ecently, the with disabilities in development processes’ (Guidance Note 2012: 2). concept of ageism has been extended and ‘is now increasingly used to refer to age discrimination er se, whatever the ages of those affected’ (Duncan and Loretto 2004: 96). This approach takes into account that also persons of young age might be discriminated against on grounds of their age. y adopting the C the EU has joined one of the most recent and progressive human rights documents on disability and thus is committed to a definition of disability which focuses on the society as the disabling factor for persons affected owever, in regard to EU nondiscrimination law, nondiscrimination on The insight that age may have an effect on the enoyment of human rights has initially been reflected by grounds of disability falls into the restricted scope of the employment and economic sector and, thus, is the discussion on children’s rights. The following dimensions had and still have an important influence on uite limited in addressing the issue in a comprehensive way urthermore, disability has been the development and discussion of these specific rights: increasingly taen into consideration in the contet of EU eternal relations EU institutions are obliged to enhance the rights of disabled persons in regard to enlargement, neighbourhood and development  The notion, that children are ‘different’ than adults had always had a repercussion in law. ’The policies and is raising awareness for the rights of disabled people among its staff woring in the eternal law has always acknowledged that there are differences between children and adults and, relations sector accordingly, it has differentiated in its treatment of children and adults’ (Breen 2006: 2) As ’rationality’ and ’autonomy’ had been considered as being a precondition for having and exercising rights, children had not been classified as ’rightsholders’ for a long time. Although the latter has changed ’the initial prereuisites of rationality and autonomy ... still have currency as they continue to form the basis for the differential treatment between child and

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adult, particularly with regard to analyses concerning the extent to which children may put their rights into effect’ (bid.: 3).  There is still the need to balance the necessity of considering children and young people ’as a distinct social group and as bearers of rights in order to find adeuate ways of balancing needs for selfdetermination, autonomy and participation of children ... while at the same time acknowledging specific vulnerabilities and protection needs of children’ (Sax 2012: 423).  Although meanwhile children’s rights are almost universal acknowledged and there are specific legal instruments such as the UN Convention on the ights of the Child in place to protect the rights of the children there is a huge discrepancy between principles and internationally accepted norms and the concrete practice and implementation of these principles and norms (Sax 2012: 422).

During the last decades there has been growing awareness that not only children are especially vulnerable to human rights violations (LuegerSchuster 2012), but also adults may face various forms of discrimination and disadvantages on grounds of their age during their lives and increasingly in old age. The debate focuses mainly on the rights of aged persons. Two dimensions are important in this context:

 There has been a growing consensus that human rights of older persons are increasingly at stake. On the one hand, disadvantages on grounds of age is more and more perceived as a problem for individuals, on the other hand population ageing poses serious challenges to states in order to ensure the enjoyment of human rights of their populations. A report published by the UN Secretaryeneral on the situation of the human rights of older persons distinguishes four major human rights challenges in this regard: discrimination on the basis of age, poverty, violence and abuse of the elderly and a lack of specific measures and services to meet the needs of older persons (UNC 2011).  Although there is growing awareness that human rights of older persons are endangered ‘explicit references to older persons in binding international human rights instruments are scarce. ... Efforts to protect the rights of older men and women are scattered and insufficient, with a general lack of comprehensive, targeted legal and institutional frameworks’ (UNHCHR 2011: 12). owever, various initiatives have tried to address the issue at an international level and called for the necessity to address the key challenges of population aging (Weber 2012: 455). The Madrid nternational lan of Action on Aging adopted in 2002 calls for a mainstreaming of age:

Mainstreaming ageing into global agendas is essential. A concerted effort is reuired to move towards a wide and euitable approach to policy integration. The task is to link ageing to other frameworks for social and economic development and human rights .... t is essential to recognie the ability of older persons to contribute to society by taking the lead not only in their own betterment but also in that of society as a whole.

These two examples – children’s rights on the one hand and the right of the elderly on the other hand – show how complex the relationship between age and human rights is and that, especially concerning the rights of older persons, there is still a lack of specific human rights instruments.

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102 eerae o eerae o adult, particularly with regard to analyses concerning the extent to which children may put their rights into effect’ (bid.: 3).  There is still the need to balance the necessity of considering children and young people ’as a (1) Age in primary and secondary law distinct social group and as bearers of rights in order to find adeuate ways of balancing needs Although provisions on age were included into primary law rather late – discrimination on grounds of age for selfdetermination, autonomy and participation of children ... while at the same time has been prohibited only since the Treaty of Maastricht and the commitment to children’s rights have acknowledging specific vulnerabilities and protection needs of children’ (Sax 2012: 423). been enshrined in the Treaty of isbon – nowadays there are numerous references concerning age in U  Although meanwhile children’s rights are almost universal acknowledged and there are specific primary law. legal instruments such as the UN Convention on the ights of the Child in place to protect the rights of the children there is a huge discrepancy between principles and internationally The TU lays down under Title Common rovisions in Art. 3 (3) that the Union ‘shall promote […] accepted norms and the concrete practice and implementation of these principles and norms solidarity between generations and protection of the rights of the child’. It lays further down in Art. 3 () (Sax 2012: 422). that the EU shall in ‘its relations with the wider world, the Union shall […] contribute to […] the protection of human rights, in particular the rights of the child’. Under Title V on the Area of Freedom, Security and During the last decades there has been growing awareness that not only children are especially vulnerable ustice the TU stipulates in Chapter 2 regarding olicies on order Checks, Asylum and mmigration in to human rights violations (LuegerSchuster 2012), but also adults may face various forms of Art. (2) that the U shall adopt measures inter alia in order to combat trafficking in persons, in particular discrimination and disadvantages on grounds of their age during their lives and increasingly in old age. women and children, and transfers in Art. 3 the competence to the U to adopt legislative measures in The debate focuses mainly on the rights of aged persons. Two dimensions are important in this context: various areas of crime, amongst others concerning the trafficking in human beings and sexual exploitation  There has been a growing consensus that human rights of older persons are increasingly at of women and children. stake. On the one hand, disadvantages on grounds of age is more and more perceived as a The TU enshrines under Title rovisions having eneral Application that ‘[i]n defining and problem for individuals, on the other hand population ageing poses serious challenges to states implementing its policies and activities, the Union shall aim to combat discrimination based on […] age’ in order to ensure the enjoyment of human rights of their populations. A report published by (TU Art. 10). iscrimination on grounds of age is further prohibited in Art. 1, which enables U the UN Secretaryeneral on the situation of the human rights of older persons distinguishes institution to take appropriate (legal) action to combat discrimination based inter alia on age. four major human rights challenges in this regard: discrimination on the basis of age, poverty, violence and abuse of the elderly and a lack of specific measures and services to meet the needs CRU has several references in regard to age. Age is included in Art. 21 on the prohibition of of older persons (UNC 2011). discrimination. urthermore, Art. 24 is exclusively dedicated to the rights of the child and lists the  Although there is growing awareness that human rights of older persons are endangered following stipulations: ‘explicit references to older persons in binding international human rights instruments are scarce. ... Efforts to protect the rights of older men and women are scattered and insufficient, 1. Children shall have the right to such protection and care as is necessary for their wellbeing. with a general lack of comprehensive, targeted legal and institutional frameworks’ (UNHCHR They may express their views freely. Such views shall be taken into consideration on matters 2011: 12). owever, various initiatives have tried to address the issue at an international level which concern them in accordance with their age and maturity. and called for the necessity to address the key challenges of population aging (Weber 2012: 2. n all actions relating to children, whether taken by public authorities or private institutions, 455). The Madrid nternational lan of Action on Aging adopted in 2002 calls for a the childs best interests must be a primary consideration. mainstreaming of age: 3. very child shall have the right to maintain on a regular basis a personal relationship and direct Mainstreaming ageing into global agendas is essential. A concerted effort is reuired to contact with both his or her parents, unless that is contrary to his or her interests. move towards a wide and euitable approach to policy integration. The task is to link ageing to other frameworks for social and economic development and human rights .... n addition, CRU prohibits in Art. 32 child labour. The same article further commits to the protection of t is essential to recognie the ability of older persons to contribute to society by taking young people at work especially in reference to economic exploitation and work which might harm the the lead not only in their own betterment but also in that of society as a whole. safety, health or physical, mental, moral or social development or interfere with the education of young people. These two examples – children’s rights on the one hand and the right of the elderly on the other hand – show how complex the relationship between age and human rights is and that, especially concerning the rights of older persons, there is still a lack of specific human rights instruments.

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FEU also stipulates in Art. the rights of the elderly, laying down that ‘[t]he Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.’ Art. 24 on social security and social assistance contains a reference to people of old age.

Age is in one or other form included in many secondary legal acts. The most important is ouncil irective E, which – as already mentioned above – prohibits discrimination in the fields of access to employment, conditions of employment, including dismissals and pay, access to vocational guidance and training and worer and employer organisations.

There are many directives and other legal acts which include reference to the protection of children and young people (see European ommission ). In the following, the most important will be presented

 irective 3EU of 3 ecember on combating the seual abuse and seual eploitation of children and child pornography  ommission irective E of ecember on processed cerealbased foods and baby foods for infants and young children  irective 33E of une on the protection of young people at wor  ommission ecommendation (3) final of February 3 Investing in children breaing the cycle of disadvantage  irective 3 on the right of citiens of the Union and their family members to move and reside freely within the territory of the MS (corrigendum published as )  ouncil irective E of ctober on the introduction of measures to encourage improvements in the safety and health at wor of pregnant worers and worers who have recently given birth or are breastfeeding (tenth individual directive within the meaning of Art. () of irective 3EE)  ouncil irective EU of March implementing the revised framewor agreement on parental leave concluded by USIESSEUE, UEAME, EE and ETU and repealing irective 3E

oncerning the rights of elderly people the legal situation is less favourable. An issue which especially relates to older persons is addressed in the irective EU of the European arliament and of the ouncil of April on minimum reuirements for enhancing worer mobility between Member States by improving the acuisition and preservation of supplementary pension rights. The roposal for a ouncil irective on implementing the principle of eual treatment between persons irrespective of religion or belief, disability, age or seual orientation in order to epand the scope of protection beyond the field of employment and occupation would be important for the protection against discrimination on grounds of age beyond the area of employment. owever, as mentioned above, the proposed directive has not been adopted yet.

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FEU also stipulates in Art. the rights of the elderly, laying down that ‘[t]he Union recognises and (2) Policies and practice concerning age in general respects the rights of the elderly to lead a life of dignity and independence and to participate in social and here are a road range of Uinitiaties and policies concerning the rights of the child and the rights of cultural life.’ Art. 24 on social security and social assistance contains a reference to people of old age. young people. he following are the ost iportant ones

Age is in one or other form included in many secondary legal acts. The most important is ouncil irective  he U Agenda on the ights of the hild is a ounication fro the oission to the E, which – as already mentioned above – prohibits discrimination in the fields of access to uropean arliaent, the ouncil, the uropean conoic and ocial oittee and the employment, conditions of employment, including dismissals and pay, access to vocational guidance and oittee of the egions and was adopted in 2. he Agenda ais at aing ustice systes training and worer and employer organisations. within the U ore childfriendly and enhancing the welleing of children.  he U uidelines on the rotection and rootion of the ights of the hild is dedicated to There are many directives and other legal acts which include reference to the protection of children and coating all fors of iolence against children and was adopted in 2. young people (see European ommission ). In the following, the most important will be presented  ecision o 2 of the uropean arliaent and of the ouncil estalishing the  irective 3EU of 3 ecember on combating the seual abuse and seual A rograe 22 to preent and coat iolence against children, young eploitation of children and child pornography people and woen.  ommission irective E of ecember on processed cerealbased foods and  n 2, the pulished an Action lan on Unaccopanied inors 2 – 24, which is a baby foods for infants and young children ounication fro the oission to the uropean arliaent and the ouncil, identifying  irective 33E of une on the protection of young people at wor three ain areas for action preention, regional protection prograes, reception and  ommission ecommendation (3) final of February 3 Investing in children identification of durale solutions. breaing the cycle of disadvantage  oncerning the situation of young people, the ain efforts of the U are aiing to reduce youth  irective 3 on the right of citiens of the Union and their family members to move and uneployent and increase the youtheployent rate. he ain actions include a reside freely within the territory of the MS (corrigendum published as ) Communication by the Commission on Working together for Europe’s young people – A call to action on youth uneployent and a outh ployent nitiatie, oth adopted in 2, and  ouncil irective E of ctober on the introduction of measures to encourage the 22 outh ployent acage. improvements in the safety and health at wor of pregnant worers and worers who have recently given birth or are breastfeeding (tenth individual directive within the meaning of Art. oncerning the rights of older people, the U dedicated the year 22 as the uropean ear for Actie () of irective 3EE) Ageing and olidarity etween enerations. ther initiaties of significance for the elderly are the urope  ouncil irective EU of March implementing the revised framewor agreement 22 trategy, A uropean strategy for sart, sustainale and inclusie growth, which ais at reducing on parental leave concluded by USIESSEUE, UEAME, EE and ETU and repealing poerty and increasing the eployent rate of persons aged 24. Another policy initiatie is the irective 3E uropean nnoation artnership on Actie and ealthy Ageing. ith a focus on older persons, the artnership ais to enhance the health and uality of life or to ensure that health and social care systes oncerning the rights of elderly people the legal situation is less favourable. An issue which especially are sustainale and efficient. relates to older persons is addressed in the irective EU of the European arliament and of the ouncil of April on minimum reuirements for enhancing worer mobility between Member (3) Policies and practice concerning age especially with regard States by improving the acuisition and preservation of supplementary pension rights. The roposal for a to external action ouncil irective on implementing the principle of eual treatment between persons irrespective of Children’s rights are considered in various forms in external relations, including development cooperation religion or belief, disability, age or seual orientation in order to epand the scope of protection beyond and trade and also concerning foreign, security and defence policy. here are nuerous policy the field of employment and occupation would be important for the protection against discrimination on docuents, including grounds of age beyond the area of employment. owever, as mentioned above, the proposed directive has not been adopted yet.  he oission ounication of eruary 2 2 final on a special place for children in EU external action and the European Union’s Action Plan on Children’s Rights in ternal Action of eruary 2 2  oission staff woring docuent on children in eergency and crisis situations 2 of eruary 2

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 Commission staff orking document combating child labour of ecember and the Commission staff orking document of April W final on trade and the orst forms of child labour  Communication from the Commission to the Council and the European Parliament of arch on education and training in the context of poverty reduction in developing countries C final, Commission Communication C of ay on promoting decent ork for all Council Conclusion of ovember and ecember , Commission taff Working ocument EC of uly Report on the EU contribution to the promotion of decent ork in the orld, Commission staff orking document W final of ebruary – ore and better education in developing countries and Commission Communication C final of arch on enhancing maternal and child nutrition in external assistance  EU uidelines on children in armed conflict, adopted in and updated in , mplementation strategy of April for the uidelines on children in armed conflict and Revised implementation strategy on children and armed conflict, of ecember  Council Conclusions of ay on the promotion and protection of the rights of the child in the European Unions external action – the development and humanitarian dimensions

n addition, the trate rameor an ton an on man hts an emora emphasies the priority to fight discrimination inter alia on grounds of age and to advocate the rights of children t lists several activities on the promotion of children’s rights, however, does not contain any action on the rights of older persons

(4) Gaps and challenges The EU has quite a comprehensive legal and policy framework with regard to children’s rights. The rights of the children are not only included as a common provision in the EU and significantly taken into consideration in CFREU but there is also a broad range of secondary law referring to children’s rights. In addition, there are numerous internal and external EU policies and practices addressing child and young people’s rights and issues. However, as there is very often a huge gap beteen the high legal standards of children’s rights and the actual realisation of children’s rights further research is needed to follow up on the implementation and impact of these las and policies Concerning the situation of the rights of older person the situation is less favourable he diagnosis made by the UCR on the lack of a comprehensive, targeted legal and institutional frameork in regard to the rights of older persons seems also to be true for the EU legal and institutional framework. Compared to children’s rights legal and policy initiatives are scarce and unsystematic As the adoption of an extended euality directive see above has failed so far, the scope of legal protection on grounds of age hardly goes beyond the employment sector he relevant provisions of CREU are therefore all the more important in this context

he EU has made significant efforts to address social factors hich enable or hinder the protection of human rights in its policies he EU has not only stipulated euality as a basic principle in its primary la but also explicitly enabled EU institutions to take measures to combat discrimination on grounds of sex,

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 Commission staff orking document combating child labour of ecember and the racial or ethnic origin, religion or belief, disability, age or seual orientation. Furthermore, CFREU widened Commission staff orking document of April W final on trade and the the scope of grounds of discrimination by prohibiting discrimination on ground of se, race, colour, ethnic orst forms of child labour or social origin, genetic features, language, religion or belief, political or any other opinion, membership  Communication from the Commission to the Council and the European Parliament of arch of a national minority, property, birth, disability, age or seual orientation. The present chapter aimed at on education and training in the context of poverty reduction in developing countries elaborating on the aspects of gender, seual orientation, disability and age, birth and social class. C final, Commission Communication C of ay on Especially concerning gender equality, the EU has made maor efforts to combat inequalities by not only promoting decent ork for all Council Conclusion of ovember and ecember , ensuring gender equality through legal stipulations, but also by enhancing positive and affirmative action Commission taff Working ocument EC of uly Report on the EU and by prescribing the introduction of the principle of gender mainstreaming in all its policies. ender contribution to the promotion of decent ork in the orld, Commission staff orking document equality is not only restricted to internal policies, it is also taken into consideration in eternal relations. W final of ebruary – ore and better education in developing countries lthough EU gender policies go beyond the economic scope by for eample aiming at tackling gender and Commission Communication C final of arch on enhancing based violence or eliminating gender stereotypes, some scholars argue that they are nevertheless maternal and child nutrition in external assistance influenced by an economic agenda and therefore fail to address gender inequalities in a comprehensive  EU uidelines on children in armed conflict, adopted in and updated in , way. mplementation strategy of April for the uidelines on children in armed conflict and Revised implementation strategy on children and armed conflict, of ecember Combating discrimination on grounds of seual orientation is a rather new field of EU law and policies.  Council Conclusions of ay on the promotion and protection of the rights of the child in lthough it is included in EU nondiscrimination law its scope is restricted to the economic and the European Unions external action – the development and humanitarian dimensions employment sector. Furthermore, EU policies concerning seual orientation are criticised because of their implicit heteronormativity and for treating it as a minority issue, which neglects the structural dimension n addition, the trate rameor an ton an on man hts an emora emphasies the of discrimination on grounds of seual orientation. In addition, the rights of TI persons are increasingly priority to fight discrimination inter alia on grounds of age and to advocate the rights of children t lists included in EU eternal relation policies. several activities on the promotion of children’s rights, however, does not contain any action on the rights of older persons Concerning the aspect of disability, the EU pursues a rather new and progressive approach which focuses on the role of the society in regard to hindering the possibilities of persons with disabilities. imilar to the (4) Gaps and challenges aspect of seual orientation, the EU nondiscrimination principle on grounds of disability is limited to the The EU has quite a comprehensive legal and policy framework with regard to children’s rights. The rights economic and employment sector. Furthermore, the rights of disabled persons have also been of the children are not only included as a common provision in the EU and significantly taken into increasingly taken into consideration in EU eternal affairs. consideration in CFREU but there is also a broad range of secondary law referring to children’s rights. In addition, there are numerous internal and external EU policies and practices addressing child and young The conclusions with regard to rights in relation to age are quite uneven. The EU has an impressive legal people’s rights and issues. However, as there is very often a huge gap beteen the high legal standards and policy framework in place when it comes to children’s rights. Concerning the protection of old persons of children’s rights and the actual realisation of children’s rights further research is needed to follow up the picture is less advantageous. There is a lack of a coherent policy and legal framework to enhance the on the implementation and impact of these las and policies Concerning the situation of the rights of enoyment of the rights of the elderly. However, to get a more profound diagnosis several issues have to older person the situation is less favourable he diagnosis made by the UCR on the lack of a be addressed by further research: the question of the actual implementation and impact of children’s comprehensive, targeted legal and institutional frameork in regard to the rights of older persons seems rights and policies, an indepth analysis of EU law and policies on how they affect the rights of older also to be true for the EU legal and institutional framework. Compared to children’s rights legal and policy persons and how the enoyment of rights of this group can be ensured by EU law and, finally, the question initiatives are scarce and unsystematic As the adoption of an extended euality directive see above has of the intersection of age with other factors such as disability, ethnicity and social origin. failed so far, the scope of legal protection on grounds of age hardly goes beyond the employment sector he relevant provisions of CREU are therefore all the more important in this context

he EU has made significant efforts to address social factors hich enable or hinder the protection of CH . Council of the European Union orking arty on Human Rights, , une , human rights in its policies he EU has not only stipulated euality as a basic principle in its primary la Toolkit to romote and rotect the Enoyment of all Human Rights by esbian, ay, iseual and but also explicitly enabled EU institutions to take measures to combat discrimination on grounds of sex, Transgender T eople.

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C final uropean isability trategy : enewed Commitment to a arrierree urope Communication from the Commission to the uropean arliament the council the uropean conomic and ocial Committee and the Committee of the egion russels ...

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C final Communication from the Commission to the Council the uropean arliament the uropean Commission (20) trategy for euality beteen omen and men, uxembourg ublications uropean conomic and ocial Committee and the Committee of the egions oadmap for equality Office of the uropean nion between women and men russels ... uropean Council (200) he tocholm rogramme – n Open and ecure urope erving and rotecting C final Communication from the Commission to the Council the uropean arliament the Citizens, (200C 0), available at httpeur uropean conomic and ocial Committee and the Committee of the egions qual opportunities for lexeuropaeuexriervexriervdouriOC200000008en ast accessed on 24 people with disabilities: a uropean ction lan russels ... ebruary 204

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Age Discrimination and Children’s Rights

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Women’s Human Rights. Seeking Gender Justice in a Globalizn e

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Age Discrimination and Children’s Rights Kulawik, T. and Sauer, B. (1996). ‘Staatstätigkeit und Geschlechterverhältnisse. Eine Einführung‘, in: Ibid. Der halbierte Staat Grundlagen eministischer olitikissenschat. he earaton o the hts o Woman Lacey, N. (2004) ‘Feminist Legal Theory and the Rights of Women’, in: Knop, K. (ed.) Gender and Human re o nternatona Comarate an eona sat a Rights eorm Locher, B. and Prügl, E. (2009) ‘Gender and European integration’, in Wiener, A. and Diez, T. (eds.) uroean ntegration heor er We m Wssen eatt n Wahrhet Lombardo, E. and Meier, P. (2007) ‘European Union Gender Policy Since Beijing. Shifting Concepts and he na an the soa moes o sat Agendas Europe’, in: Mi ultile eanings o Gender ualit in uroe ots an anae nerstann the sat sorse Schuster, B. (2012) ‘Human Rights Violations against Children – Group’, in: Nowak, M., Januszewski, All Human Rights or All. ienna anual on Human Rights t e Conets n ener tes Nestvogel, R. (2010) ‘Sozialisationstheorien: Traditionslinien, Debatten und Perspektiven’, in: Becker, R. ea traners as esans an emmas o Ctensh Handbuch rauen und Geschlechterorschung. heorie ethoden mirie . ereiterte und durchgesehen Aulage Women’s Human Rights. Seeking Gender Justice in a Globalizn e Otto, D. (2010) ‘Women’s Rights’, in: Moeckli, D., Shah, S. and Sivakumaran, S. (ed.) nternational Human Rights a sat heor Rahman, M. (1998) ‘Sexuality and rights. Problematising lesbian and gay politics’, in: Carver, T. and olitics o Seualit. dentit gender citizenshi

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Sax, H. (2012) ‘Human Rights of children and Young People – A Primary Consideration?’, in: Nowak, M., Januszewski, K. M. and Hofstätter, T. (eds.) ll Human Rights or ll ienna anual on Human Rights, Wien: NWV Verlag, pp. 42242.

Stark, B. (2009) ‘Women’s Rights’, in: Forsythe, D. (ed.) Enyloeia o Human Rights, 5th edition, Oxford: University Press, pp. 4151.

Wagenknecht, P. (2007) ‘Was ist Heteronormativität? Zur Geschichte und Gehalt des Begriffs‘, in: Hartmann, J. et al (eds.) Heteronormatiitt Emirishe tuien u Geshleht eualitt un aht, Wiesbaden: VS Verlag, pp. 174.

Weber, G. (2012) ‚Ageing, Quality of Life and Rights: Prospects for a Good Old Age‘, in: Nowak, M., Januszewski, K. M. and Hofstätter, T. (eds.) ll Human Rights or ll ienna anual on Human Rights, Wien: NWV Verlag, pp. 45457.

Connell, R. W. and Messerschmidt, J. W. (2005) ‘Hegemonic Masculinity: Rethinking the Concept’, in: Gener oiety, vol. 19, no. 6, pp. 829859.

Cruells, M. and CollPlanas, G. (2013) ‘Challenging equality policies: The emerging LGBT perspective’, in: European Journal of Women’s Studies, vol. 20, no. 2, pp. 12217.

Degener, T. (2006) ‘The Definition of Disability in German and Foreign Discrimination Law’, in: isability tuies uarterly, vol. 26, no. 2.

DeLamater, J. D. and Hyde, J. S. (1998) ‘Essentialism vs. Social Constructionism in the Study of Human Sexuality’, in: The ournal o e Researh, vol. 5, no. 1, pp. 1018.

Duncan, C. and Loretto, W. (2004) ‘Never the Right Age? Gender and AgeBased Discrimination in Employment’, Gener or an rganiation, vol. 11, no. 1, pp. 95115.

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Johnson, P. (2010) ‘”An Essentially Private Manifestation of Human Personality”: Constructions of Homosexuality in the European Court of Human Rights’, Human Rights Reie, vol. 10, no. 1, pp. 6797.

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Minichiello, V., Browne, J. and Kendig, H. (2000) ‘Perceptions and consequences of ageism: views of older people’, geing an oiety, vol. 20, no. , pp. 25278.

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Roth, S. (2013) ‘Introduction’, in: Roth, S. (ed.) Gener Politis in the Eaning Euroean Union Verloo, M. (2006) ‘Multiple Inequalities, Intersectionality and the European Union’, European Journal of obiliation nlusion Elusion, Oxford, New ork: Berghahn Books, pp. 116. Women’s Studies, vol. 13 (3), pp. 211228.

Sax, H. (2012) ‘Human Rights of children and Young People – A Primary Consideration?’, in: Nowak, M., Woodward, A. (2008) ‘European Gender mainstreaming: Promises and Pitfalls of Transformative Policy’, Januszewski, K. M. and Hofstätter, T. (eds.) ll Human Rights or ll ienna anual on Human Rights, eie of oli esear, vol. 20, no. 1, pp. 6588. Wien: NWV Verlag, pp. 42242. Stark, B. (2009) ‘Women’s Rights’, in: Forsythe, D. (ed.) Enyloeia o Human Rights, 5th edition, Oxford: European Centre Vienna (2013) tie ein nde onept etodolo and inal esults, University Press, pp. 4151. available at: http:www.euro.centre.orgdata136327512621733.pdf Last accessed on 25 July 2014.

Wagenknecht, P. (2007) ‘Was ist Heteronormativität? Zur Geschichte und Gehalt des Begriffs‘, in: European Commission (2014) E auis and poli douments on te rits of te ild, JST.C1MT, Hartmann, J. et al (eds.) Heteronormatiitt Emirishe tuien u Geshleht eualitt un aht, available at: http:ec.europa.euusticefundamentalrightsfileseuacquis2013en.pdf Last Wiesbaden: VS Verlag, pp. 174. accessed on 25 July 2014.

Weber, G. (2012) ‚Ageing, Quality of Life and Rights: Prospects for a Good Old Age‘, in: Nowak, M., European Commission (2011) Strate for eualit eteen omen and men Luxembourg: Publications Januszewski, K. M. and Hofstätter, T. (eds.) ll Human Rights or ll ienna anual on Human Rights, Office of the European nion. Wien: NWV Verlag, pp. 45457. FRA (2011) andoo on European nondisrimination la, Luxembourg. eport on te ppliation of te E arter of undamental its Connell, R. W. and Messerschmidt, J. W. (2005) ‘Hegemonic Masculinity: Rethinking the Concept’, in: FRA (2012) , Available at: http:ec.europa.euusticefundamentalrightsfilescharterreport2012en.pdf Last accessed 24. Gener oiety, vol. 19, no. 6, pp. 829859. April 2014. Cruells, M. and CollPlanas, G. (2013) ‘Challenging equality policies: The emerging LGBT perspective’, in: FRA, Report ess to ustie in ases of disrimination in te E – Steps to furter eualit Available at: European Journal of Women’s Studies, vol. 20, no. 2, pp. 12217. http:fra.europa.euenpublication2012accessusticecasesdiscriminationeustepsfurther Degener, T. (2006) ‘The Definition of Disability in German and Foreign Discrimination Law’, in: isability equality Last accessed 24. April 2014. tuies uarterly, vol. 26, no. 2. Centre for Disability Studies (n.d.) efinin mpairment and isailit, available at: http:disability DeLamater, J. D. and Hyde, J. S. (1998) ‘Essentialism vs. Social Constructionism in the Study of Human studies.leeds.ac.ukfileslibraryNorthernOfficersGroupdefiningimpairmentanddisability.pdf Last Sexuality’, in: The ournal o e Researh, vol. 5, no. 1, pp. 1018. accessed on 21 February 2014.

Duncan, C. and Loretto, W. (2004) ‘Never the Right Age? Gender and AgeBased Discrimination in Yogyakarta Principles (2007) riniples on te ppliation of nternational uman its a in elation Employment’, Gener or an rganiation, vol. 11, no. 1, pp. 95115. to Seual rientation and ender dentit, available at: http:www.yogyakartaprinciples.orgprinciplesen.pdf Last accessed on 17 February 2014. Hughes, B. and Paterson, K. (1997) ‘The Social Model of Disability and the Disappearing Body: Towards a sociology of impairment’, isability oiety, vol. 12, no. , pp. 2540. NHCHR (2011) uman its of lder ersons, available at: http:www.ohchr.orgENIssuesOlderPersonsPagesOlderPersonsIndex.aspx Last accessed on 25 July Johnson, P. (2010) ‘”An Essentially Private Manifestation of Human Personality”: Constructions of 2014. Homosexuality in the European Court of Human Rights’, Human Rights Reie, vol. 10, no. 1, pp. 6797. nited Nations (2012) World opulation ein , available at: oial ores Martin, P. Y. (2004) ‘Gender as Social Institution’, , vol. 82, no. 4, pp. 1249127. http:www.un.orgesapopulationpublicationsworldageing19502050 Last accessed on 25 July Minichiello, V., Browne, J. and Kendig, H. (2000) ‘Perceptions and consequences of ageism: views of older 2014. people’, geing an oiety, vol. 20, no. , pp. 25278.

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

This chapter has a dual focus, first on those cultural and religious factors which may hinder or facilitate the European Union’s (EU) human rights policies, second on topical human rights issues which have a sustantial impact on the space provided for culture and religion in a human rights contet. The chapter will pay particular, aleit far from eclusive, attention to human rights in the interlinage etween the culture and religion, religion eing a vital earer of culture. It should e noted that cultural factors are also canvassed in other chapters of the report, notaly the chapters on social and ethnical factors respectively.

The chapter will start with an introduction to the topic at a gloal level, going ac to the Universal eclaration of uman ights (U) and introducing the different phases of the universality deate, which since the eginning of the human rights era has had a dominant impact on the perception of how human rights relate to cultural and religious traditions. Then follows an overview of general features of the position of the EU on human rights, culture and religion. The chapter proceeds to set out three overarching themes, which are amongst the most topical in human rights discourses oth gloally and within the EU, its Memer tates and third countries today:

 omen and gender in the contet of cultural and religious diversity (eternal policies)  Promoting religious freedom and religious and cultural diversity and tolerance  The state, religion and culture.

The scope of religious and cultural factors that may have a human rights impact is etremely diverse and potentially vast hence focus will e on issues that are reflected in contemporary policy discourses at EU level as well as in the scholarly literature and which are topical and pertinent for the EU in its internal and eternal actions.

ver the last decade, the triangle of religion, culture and human rights has een a growing research field. As the holistic approach to human rights – stressing the indivisiility of rights human rights as well as the necessity to tae the cultural and historical contet into account when implementing human rights – has gained ground over the last two decades, many different academic disciplines (for instance theology, history of religion, anthropology and law) have come into play in the field of human rights, culture and religion. Women’s rights and gender are among the most topical research areas, being amongst the most prolematic visvis human rights.

 The author of this chapter is r. Eva Maria assen, enior esearcher, the anish Institute of uman ights.

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 s one o the classical human rights, the international protection o reedom o religion or belie has been subect to much, mostl legal, scholarship he scholarl literature on human rights in relation to religion and culture in the speciic contet o EU policies is still in its inanc but rapidl deeloping he literature reie has included collaboratie studies carried out b scholars o religion, la and culture This chapter has a dual focus, first on those cultural and religious factors which may hinder or facilitate n the contet o the EU, the large collaborative EU research project ‘Religare. Religious diversity and the European Union’s (EU) human rights policies, second on topical human rights issues which have a secular models in Europe. Innovative approaches to Law and Policy’ is orth o mention sustantial impact on the space provided for culture and religion in a human rights contet. The chapter will pay particular, aleit far from eclusive, attention to human rights in the interlinage etween the t is an interesting characteristic o the scholarl literature on the relationship beteen human rights, culture and religion, religion eing a vital earer of culture. It should e noted that cultural factors are culture, and religion that the authors often have both an academic and a ‘practitioner’ background. An also canvassed in other chapters of the report, notaly the chapters on social and ethnical factors illustratie eample o this is the present U pecial apporteur o reedom o eligion or elie, einer respectively. ieleeldt, ho is both an eminent human rights scholar and a human rights epert and practitioner

eports and analses o dierent aspects o the relationship beteen human rights and religion carried The chapter will start with an introduction to the topic at a gloal level, going ac to the Universal out b aithbased institutions and secular nongoernmental organisations (s) are plentiul he eclaration of uman ights (U) and introducing the different phases of the universality deate, oman atholic hurch and the European ouncil o hurches are hristian eamples o this imilarl, which since the eginning of the human rights era has had a dominant impact on the perception of how interreligious organisations, such as the nternational ouncil o hristian and es are publishing reports human rights relate to cultural and religious traditions. Then follows an overview of general features of on, or instance, human rights and the three monotheistic religions udaism, hristianit and slam the position of the EU on human rights, culture and religion. The chapter proceeds to set out three overarching themes, which are amongst the most topical in human rights discourses oth gloally and n addition, the literature reie o polic sources has included polic documents at the leel o the U, within the EU, its Memer tates and third countries today: ouncil o Europe and EU pertaining to religion, culture and human rights t the U leel, e sources include reports o the U pecial apporteur on reedom o eligion or elie as ell as the U pecial  omen and gender in the contet of cultural and religious diversity (eternal policies) apporteur in the ield o ulture  Promoting religious freedom and religious and cultural diversity and tolerance  The state, religion and culture. n hat ollos, the uniersalit debate is outlined, positioning religion and culture in the landscape o international human rights hen ollos a brie introduction to maor international instruments and The scope of religious and cultural factors that may have a human rights impact is etremely diverse and conentions o particular signiicance to religion and culture in a human rights contet potentially vast hence focus will e on issues that are reflected in contemporary policy discourses at EU level as well as in the scholarly literature and which are topical and pertinent for the EU in its internal and eternal actions. t the mposium on uman ights in the siaaciic egion in anuar , ar obinson, the then U igh ommissioner on uman ights, too the occasion o the th anniersar o the U to describe the relationship beteen religion, culture and human rights in the olloing a ver the last decade, the triangle of religion, culture and human rights has een a growing research field. As the holistic approach to human rights – stressing the indivisiility of rights human rights as well as the oda the Uniersal eclaration o uman ights stands as a monument to the conictions and necessity to tae the cultural and historical contet into account when implementing human rights – has determination o its ramers ho ere leaders in their time t is one o the great documents in gained ground over the last two decades, many different academic disciplines (for instance theology, orld histor he traau prparatoires are there to remind us that the authors sought to relect history of religion, anthropology and law) have come into play in the field of human rights, culture and in their or the diering cultural traditions in the orld he result is a distillation o man o the religion. Women’s rights and gender are among the most topical research areas, being amongst the most values inherent in the world’s major legal systems and religious beliefs including the Buddhist, prolematic visvis human rights. hristian, indu, slamic and eish traditions (uoted rom assen )

he proect as carried out in the period and unded under the EU eenth rameor rogramme  The author of this chapter is r. Eva Maria assen, enior esearcher, the anish Institute of uman ights. httpreligareproecteu ast accessed une

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In line with Mary Robinson’s statement, the UR has often been proclaimed as reflecting the cultural and religious traditions of the entire world. ften, however, this view has been met by scepticism or outright rejection. And, in fact, the relationship between human rights on the one hand, and cultural and religious traditions on the other hand, is far less evident.

he debates about human rights as universal values have gone through various phases over time. Already in , at the time of the creation of the UR, human rights were challenged as a universally applicable concept. In the following decades the debate continued, with the participation of faith communities, other parts of civil society, academics, eperts and policy makers at local, regional and international levels Lassen a.

oving to the s and s, there was a growing sense In the international community that it was vital to find a balance between respect for local religious and cultural traditions and respect for the universal values as reflected international human rights law. his position was epressed in Art. of the ienna eclaration and Programme of Action of

All human rights are universal, indivisible and interdependent and interrelated. he international community must treat human rights globally in a fair manner, on the same footing, and with the same emphasis. hile the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of tates, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. ienna eclaration and Programme of Action, Art.

In this way, the ienna eclaration and Programme of Action stressed that culture and religion must be taken into account when negotiating and implementing human rights. By the same token, it was acknowledged that ‘cultural systems’ may be in conflict with human rights. his applies, for instance, to women and gender rights. he declaration does not offer any solution to this potential conflict but consolidated the view in the human rights world that it is essential to find a balance between the two systems – international human rights and cultural and religious traditions – if human rights are to be legitimate in the eyes of members of different cultures ouannet .

oday the discourse has changed to a large degree when compared to the time of the ienna eclaration. hus most tates have, in principle at least, taken ownership of human rights. his also applies to tates with a strong religious foundation, for instance many uslim tates, such as Iran, ordan, and audi Arabia. he universality of human rights e se is no longer so strongly contested. Instead, it is the understanding of o human rights relate to religious and cultural traditions which is continuously being negotiated – and here it should be noted that religious and cultural traditions themselves are dynamic and subject to evolution and change. ost importantly, the uestion is how human rights should be inteeted and ned inst each other Lassen a.

he religious belief and practices of the individual is protected by freedom of religion or belief. A problem of a longstanding and multifaceted nature is the fact that the right to practice one’s religion may violate others’ rights. The balancing between freedom of religion and other rights is the topic of enormous compleity and subject to much scholarly scrutiny see e.g. Lagoutte and Lassen .

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In line with Mary Robinson’s statement, the UR has often been proclaimed as reflecting the cultural particular problem that is on the rise and which represents a very serious hindrance to the human rights and religious traditions of the entire world. ften, however, this view has been met by scepticism or of the individual is violation of human rights of religious minorities, both as regards the collective right of outright rejection. And, in fact, the relationship between human rights on the one hand, and cultural and religious freedom and the individual’s religious freedom and other human rights pecial Rapporteur religious traditions on the other hand, is far less evident. on reedom of Religion and elief .

he debates about human rights as universal values have gone through various phases over time. Already in , at the time of the creation of the UR, human rights were challenged as a universally applicable t the same time as different parts of the world are taking ownership of human rights, the number of concept. In the following decades the debate continued, with the participation of faith communities, other institutions with a mandate to interpret human rights in given cultural and religious contets have parts of civil society, academics, eperts and policy makers at local, regional and international levels increased. nonuropean eample is the new human rights instrument established by the rganiation Lassen a. of Islamic ooperation I, made up of selfdeclared Muslim tates from the Middle ast, sia, frica and atin merica uul edersen . oving to the s and s, there was a growing sense In the international community that it was vital to find a balance between respect for local religious and cultural traditions and respect for the universal s an integrated part of civil society, religious and cultural communities and organisations are essential values as reflected international human rights law. his position was epressed in Art. of the ienna local voices of culture and religion. s such, they can both facilitate or hamper the promotion of human eclaration and Programme of Action of rights locally. Religious communities and cultural s in increasing numbers are involved in human rights, at a local, regional or international level. The different religions also meet in interreligious All human rights are universal, indivisible and interdependent and interrelated. he international dialogues aimed at finding common ground in the field of human rights. community must treat human rights globally in a fair manner, on the same footing, and with the same emphasis. hile the significance of national and regional particularities and various The fact that religion plays a central role in most societies has in recent years been illustrated by religion historical, cultural and religious backgrounds must be borne in mind, it is the duty of tates, and freedom of religion entering centre stage of the international community and in international fora, regardless of their political, economic and cultural systems, to promote and protect all human as can, for instance, be observed in the uman Rights ouncil see e.g. enedek . rights and fundamental freedoms. ienna eclaration and Programme of Action, Art. cademics are increasingly involved in the debates about the relationship between human rights, culture In this way, the ienna eclaration and Programme of Action stressed that culture and religion must be and religion, and have fertilised the discourse by, for instance, conceptualising the idea of ‘overlapping taken into account when negotiating and implementing human rights. By the same token, it was consensus’, i.e. to find common denominators for human rights and culture/religion ielefeldt, . acknowledged that ‘cultural systems’ may be in conflict with human rights. his applies, for instance, to assen a. The idea of overlapping consensus between universal human rights and culture and women and gender rights. he declaration does not offer any solution to this potential conflict but religion has also been taken up by policy makers, international human rights lawyers and other eperts. consolidated the view in the human rights world that it is essential to find a balance between the two n illustration is the report and proect otetin init n end o umn its, authored by a systems – international human rights and cultural and religious traditions – if human rights are to be group of eminent human rights eperts anel on uman ignity . legitimate in the eyes of members of different cultures ouannet . In sum, today many human rights actors take part in negotiating how human rights should be interpreted oday the discourse has changed to a large degree when compared to the time of the ienna eclaration. and developed in the contet of given cultural and religious traditions. Religious practices and norms are hus most tates have, in principle at least, taken ownership of human rights. his also applies to tates often in conflict with human rights, as are some cultural practices. Thus the relationship between culture, with a strong religious foundation, for instance many uslim tates, such as Iran, ordan, and audi religions and human rights continues to be etremely challenging in many areas, such as gender, TI Arabia. he universality of human rights e se is no longer so strongly contested. Instead, it is the rights esbian, ay, iseual, Transgender, Interse, the euality of women, the right to change religion, understanding of o human rights relate to religious and cultural traditions which is continuously being and the uestion of balancing religious freedom with other human rights, for instance freedom of negotiated – and here it should be noted that religious and cultural traditions themselves are dynamic epression. and subject to evolution and change. ost importantly, the uestion is how human rights should be inteeted and ned inst each other Lassen a. The reamble of the R underlines the importance of freedom of religion: ‘…a world in which human he religious belief and practices of the individual is protected by freedom of religion or belief. A problem beings shall enoy freedom of speech and belief and freedom from fear and want has been proclaimed as of a longstanding and multifaceted nature is the fact that the right to practice one’s religion may violate the highest aspiration of the common people’, and the universality of human rights is laid down in its first others’ rights. The balancing between freedom of religion and other rights is the topic of enormous article: ‘All human beings are born free and eual in dignity and rights. They are endowed with reason compleity and subject to much scholarly scrutiny see e.g. Lagoutte and Lassen . and conscience and should act towards one another in a spirit of brotherhood’ (Art. 1).

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umerous conventions and declarations have relevance for culture, religion and human rights, amongst the most important are the two covenants of 1, he ovenant on olitical and ivil ights (), and the ovenant of conomic, ocial and ultural ights (). he eclaration on the limination of All orms of ntolerance and of iscrimination ased on eligion or elief of 11, the onvention on the limination of All orms of iscrimination against omen (A) of 1, and the onvention of the ights of the hild of 1 are other important documents, which touch upon the cultural and religious rights of women and children respectively.

he pecial apporteur on reedom of eligion or elief is mandated to identify factors which may hinder the practice of freedom or religion or belief. he rapporteur provides recommendations which can support the tates in their promotion and protection of freedom of religion or belief. he uman ights ommittee has issued a eneral omment on reedom of eligion (o. ). enerally speaing, both the uman ights ommittee and the pecial apporteur are cautious about limitations to freedom of religion or belief unless eceptional reasons call for this, for instance in the case of religious intolerance. he interpretation of religious freedom is freuently being debated in internal fora, the ‘defamation of religion’ debate of the UN Human Rights ouncil being a recent eample (see e.g. enede 1: ).

As far as culture and human rights specifically are concerned, the position of pecial apporteur in the ield of ulture was created in . he mandate reuests the apporteur to, inte i, identify ‘best practices in the promotion and protection of cultural rights at the local, national, regional and international levels’ and to work ‘in cooperation with States in order to foster the adoption of measures at the local, national, regional and international levels aimed at the promotion and protection of cultural rights through concrete proposals enhancing subregional, regional and international cooperation in that regard.’

has since its establishment sought to find ways to embed human rights in the contet of the world cultures (enerini 1). Amongst the most important aspects of culture is language, forming an essential part of an individual’s, a group’s or a people’s identity. The protection of linguistic rights as part of cultural rights is pursued at the international and regional level, with playing an important part (ancini and de itte ).

http://www.ohchr.org//ssues/ulturalights/ages/andatenfo.asp. ast accessed uly 1

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he proclaims religious freedom in a broad sense, including for instance the right to change religion: ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance’ (Art. 18). The The EU has a long tradition of emphasising the universality and indivisibility of human rights and looking declaration also refers to the cultural life of the individual: ‘Everyone has the right freely to participate in to the UHR as a source of inspiration (See hapter on Historical factors). This provides the EU with a the cultural life of the community, to enoy the arts and to share in scientific advancement and its benefits’ suitable ideological platform from which to engage in the international human rights debate. (Art. ,1). Religious freedom in Europe is not absolute and can be limited under certain conditions, for instance if umerous conventions and declarations have relevance for culture, religion and human rights, amongst religious freedom conflicts with other rights of the individuals, with others individuals’ rights, or with, for the most important are the two covenants of 1, he ovenant on olitical and ivil ights (), instance, the public order. Religious freedom is dynamic and constantly changing, because it is being and the ovenant of conomic, ocial and ultural ights (). he eclaration on the interpreted in light of the actual development of society as well as the knowledge and the values society limination of All orms of ntolerance and of iscrimination ased on eligion or elief of 11, the holds at a given time. The European ourt of Human Rights gives a wide margin of appreciation to the onvention on the limination of All orms of iscrimination against omen (A) of 1, and the State. The history of each ember State of the ouncil of Europe plays a dominant role in determining onvention of the ights of the hild of 1 are other important documents, which touch upon the how religious freedom is interpreted in the different States. This very much applies to EU ember States, cultural and religious rights of women and children respectively. where the principle of separating the State and religion has been epressed in different ways. As a result, scope and limitations of freedom of religion or belief as well as the regulation of the state of religious he pecial apporteur on reedom of eligion or elief is mandated to identify factors which may communities vary considerably. hinder the practice of freedom or religion or belief. he rapporteur provides recommendations which can support the tates in their promotion and protection of freedom of religion or belief. he uman The EU Charter on Fundamental Rights states in Art. 10 on ‘Freedom of thought, conscience and religion’ ights ommittee has issued a eneral omment on reedom of eligion (o. ). enerally speaing, that: both the uman ights ommittee and the pecial apporteur are cautious about limitations to 1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom of religion or belief unless eceptional reasons call for this, for instance in the case of religious freedom to change religion or belief and freedom, either alone or in community with others and intolerance. he interpretation of religious freedom is freuently being debated in internal fora, the in public or in private, to manifest religion or belief, in worship, teaching, practice and ‘defamation of religion’ debate of the UN Human Rights ouncil being a recent eample (see e.g. enede observance. 1: ). . The right to conscientious obection is recognised, in accordance with the national laws As far as culture and human rights specifically are concerned, the position of pecial apporteur in governing the eercise of this right. the ield of ulture was created in . he mandate reuests the apporteur to, inte i, identify ‘best The EU encourages, then, religious diversity and religious freedom within its ember States. At the same practices in the promotion and protection of cultural rights at the local, national, regional and time, the harter only binds ember States in so far as they are implementing EU law (See international levels’ and to work ‘in cooperation with States in order to foster the adoption of measures hapter..1.a); see also crea 1: 1). Eually, the EU respects the States’ different ways of at the local, national, regional and international levels aimed at the promotion and protection of cultural organising the relationship between state and religion, as epressed in the Treaty on the unctioning of rights through concrete proposals enhancing subregional, regional and international cooperation in that the European Union, Art. 17, which states that the Union ‘respects and does not prejudice the status regard.’ under national law of churches and religious associations or communities in the Member States’ and has since its establishment sought to find ways to embed human rights in the contet of the undertakes to maintain a structured dialogue with churches and ‘philosophical and nonconfessional world cultures (enerini 1). Amongst the most important aspects of culture is language, forming an organisations’. It is noteworthy that the EU in this way commits itself to hear the religious and non essential part of an individual’s, a group’s or a people’s identity. The protection of linguistic rights as part religious entities as part of civil society in areas of relevance to religious life within the EU. of cultural rights is pursued at the international and regional level, with playing an important part urther studies are recommended into the comple role played by civil society in the promotion and (ancini and de itte ). protection of religious freedom as well as religious and cultural diversity and tolerance.

The EU generally keeps a low profile with regard to regulating freedom of religion in ember States. rotection against religiously grounded discrimination in the work place is regulated by the EU, but

http://www.ohchr.org//ssues/ulturalights/ages/andatenfo.asp. ast accessed uly 1

11 11

119 eiee o attempts at etending the regulation outside the workplace have so far not borne fruit, partly due to some Member States’ resistance to increased EU regulation in the area of religion.

anguage rights are among those heralded by the EU, both to celebrate diversity, and as a cultural right of the individual. The EU Charter lays down that ‘The Union shall respect cultural, religious and linguistic diversity’ Art. . This language diversity and language right are reflected in the EU itself, which includes the right to use any of the official languages of the EU when engaging with EU institutions, and the right of EU citiens not to be discriminated against on account of language. As far as language rights in relation to the labour market, those rights also applies to third country nationals Mancini and de itte 00 7 .

In contrast to its internal actions, the EU has very detailed eternal policies in the field of culture and religion. The EU includes respect for religion in its development policies and has much focus on freedom of religion or belief in its eternal actions because of the increased violation of freedom of religion or belief that takes place globally, for instance in the form of discrimination of religious minorities U Special Rapporteur on Freedom of Religion and elief 01.

A programmatic document is the EU Strategic Framework and Action lan on uman Rights and emocracy of une 01. The document describes the ways in which the EU will pursue its human rights policies, both at a bilateral and multilateral level. The second part of the document contains its Action lan to be pursued until 1 ecember 01.

ith regard to Freedom of Religion, three steps are envisioned in the Action lan first, the development of ‘public EU Guidelines on Freedom of Religion or Belief (FoRB) building upon existing instruments and documents, recalling key principles and containing clearly defined priorities and tools for the promotion of FoR worldwide’; second, the presentation of ‘EU initiatives at the UN level on Freedom of Religion or Belief, including resolutions at General Assembly and Human Rights Council’; third, the promotion of ‘initiatives at the level of the Organization for Security and Cooperation in Europe SCE and the Council of Europe CoE and contribute to better implementation of commitments in the area of Freedom of Religion or Belief’. The Action Plan also includes, amongst others, the following EU priority areas enjoyment of human rights by TI persons, rotection of the rights of women, and protection against genderbased violence, and Respect for economic, social and cultural rights

The abovementioned EU uidelines are particularly interesting, as they are pragmatic and detailed tools for officials of the EU and Member States when they engage with third countries, international organisations and civil society assen 01b. Moreover, they send a political signal

EU guidelines are not legally binding, but because they have been adopted at ministerial level, they represent a strong political signal that they are priorities for the Union. uidelines are

120 eiee o eiee o attempts at etending the regulation outside the workplace have so far not borne fruit, partly due to some pragmatic instruments of EU Human Rights policy and practical tools to help EU representations Member States’ resistance to increased EU regulation in the area of religion. in the field better advance our Human Rights policy.

anguage rights are among those heralded by the EU, both to celebrate diversity, and as a cultural right n the process of creating the Guidelines for instance the Guidelines on Freedom of Religion or Belief – of the individual. The EU Charter lays down that ‘The Union shall respect cultural, religious and linguistic the EU has invited input from religious and nonconfessional NGOs and institutions. n general, the EU diversity’ Art. . This language diversity and language right are reflected in the EU itself, which includes is focused on including civil society in its promotion of human rights in the different components of its the right to use any of the official languages of the EU when engaging with EU institutions, and the right external actions. hile this has very positive perspectives, it should be noted that the role played by civil of EU citiens not to be discriminated against on account of language. As far as language rights in relation society in the promotion and protection of religious freedom as well as in promoting religious and cultural to the labour market, those rights also applies to third country nationals Mancini and de itte 00 7 diversity and tolerance is complex. Therefore further studies in this field are recommended. . Reflecting the increased focus of the EU on religious freedom in its external actions the European Parliament oring Group on Freedom of Religion or Belief was established in ecember . The In contrast to its internal actions, the EU has very detailed eternal policies in the field of culture and oring Group consists of religion. The EU includes respect for religion in its development policies and has much focus on freedom of religion or belief in its eternal actions because of the increased violation of freedom of religion or a group of lieminded MEPs dedicated to promote and protect FoRB in the EU’s external actions. belief that takes place globally, for instance in the form of discrimination of religious minorities U Special The role of the EPG is to wor with the EU institutions in monitoring FoRB in third countries and Rapporteur on Freedom of Religion and elief 01. to ensure that necessary actions are taen to address serious FoRB violations. EPs belonging to our group are committed to undertaing parliamentary wor in the European Parliament to A programmatic document is the EU Strategic Framework and Action lan on uman Rights and promote and protect FoRB (European Parliament oring Group on Freedom of Religion or Belief emocracy of une 01. The document describes the ways in which the EU will pursue its human rights ). policies, both at a bilateral and multilateral level. The second part of the document contains its Action lan to be pursued until 1 ecember 01. ith regard to Freedom of Religion, three steps are envisioned in the Action lan first, the development The EU has in its external actions a progressive and comprehensive interpretation of freedom of religion of ‘public EU Guidelines on Freedom of Religion or Belief (FoRB) building upon existing instruments and or belief and of the indivisibility of religious freedom and other rights, for instance freedom of expression. documents, recalling key principles and containing clearly defined priorities and tools for the promotion An area, in which the EU demonstrates a pronounced understanding of and a progressive approach to the of FoR worldwide’; second, the presentation of ‘EU initiatives at the UN level on Freedom of Religion or different rights which come into play in the context of culture and religion for different groups of Belief, including resolutions at General Assembly and Human Rights Council’; third, the promotion of individual, for instance GBT rights and the rights of women and girls (assen b). This progressive ‘initiatives at the level of the Organization for Security and Cooperation in Europe SCE and the Council approach is evident from the following three EU Guidelines EU Guidelines on violence against women of Europe CoE and contribute to better implementation of commitments in the area of Freedom of and girls and combatting all forms of discrimination against them, EU Guidelines to promote and protect Religion or Belief’. The Action Plan also includes, amongst others, the following EU priority areas the enoyment of all human rights by lesbian, gay, bisexual, transgender and intersex (GBT) persons, and enjoyment of human rights by TI persons, rotection of the rights of women, and protection against EU Guidelines on the promotion and protection of Freedom of Religion or Belief. genderbased violence, and Respect for economic, social and cultural rights t is recommended that further studies are carried out with the aim of interpreting this indivisibility of The abovementioned EU uidelines are particularly interesting, as they are pragmatic and detailed tools rights in the cultural and religious context of women and gender, and that the role of civil society in for officials of the EU and Member States when they engage with third countries, international promoting religious freedom and tolerance as well as in promoting LGBTI rights and women’ and girls organisations and civil society assen 01b. Moreover, they send a political signal rights are included in such studies.

EU guidelines are not legally binding, but because they have been adopted at ministerial level, they represent a strong political signal that they are priorities for the Union. uidelines are

httpeeas.europa.euhumanrightsguidelinesindexen.htm. ast accessed une . See e.g. httpeprid.euwebsitenews. For omen and gender in internal policies of the EU, see Chapter on Social factors.

121 eiee o

Intolerance and discrimination ased on religion or elief as well as religiousl motiated iolence hae increasingl ecome the focus of the EU see for instance uman rights and democrac in the world. Report on EU ction in see also Benede . t the ilateral leel with third countries and at the multilateral leel for instance at the uman Rights ouncil the EU has stressed the need to fight religious discrimination Benede . Thus the Guidelines on freedom of religion or elief are a response to the global threat to religious freedom: ‘Violations or abuses of freedom of religion or belief, committed oth state and nonstate actors are widespread and complex and affect people in all parts of the world, including Europe’ Guidelines . ee also Lassen .

In the spring of the European Parliament adopted a resolution on cultural and religious tolerance. European Parliament Resolution of pril on EU foreign polic in a world of cultural and religious differences restates the Parliament’s will to foster policies which affirm ‘respect for cultural diversity and tolerance isis different concepts and eliefs comined with action to comat all forms of extremism and fight inequalities’ (1). Acknowledging that cultural and religious differences hae een sources of conflict and human rights iolations the resolution states that it is exactl the understanding of religious and cultural diersit which fosters tolerance and reconciliation. tressing the elief of the EU in the close relationship between freedom of religion or belief and women’s rights as well as LGBTI rights, the resolution reaffirms

that the protection of persons elonging to ulnerale groups such as ethnic or religious minorities the promotion of women’s rights and their empowerment, representation and participation in economic political and social processes and the fight against all forms of iolence and discrimination based on gender or sexual orientation must be among the EU’s goals in foreign relations .

The Resolution ‘Calls on the EEAS and the EU Delegations worldwide to further engage with third countries and regional organisations in the promotion of intercultural and interreligious dialogue’ (31), and stresses ‘the importance of providing EU staff with appropriate training to this end.’

In the same period as progressie policies were adopted isis external affairs the EU Memer tates experienced serious threat to freedom of religion or elief and to tolerance towards cultural and religious diersit. The Fundamental Rights genc FR carried out sures related to religious and cultural minorities for instance sure on antiemitism in EU Memer tates which showed that man ews experienced an increased antiemitism FR report .

It is recommended that further studies are carried out with the aim of interpreting this indiisiilit of rights for religious minorit groups in EU Memer tates ased on releant FR reports. In addition further studies are recommended which with a asis in FR reports on discrimination and perceied discrimination of religious minorities in EU Memer tates analse the grounds and remedies for religiousl ased persecution.

122 eiee o eiee o

Intolerance and discrimination ased on religion or elief as well as religiousl motiated iolence hae increasingl ecome the focus of the EU see for instance uman rights and democrac in the world. The detailed policies on freedom of religion or belief in the EU’s external policies compared with the Report on EU ction in see also Benede . t the ilateral leel with third countries and at detached role of the EU in the practice of religious freedom in ember States, and combined with the multilateral leel for instance at the uman Rights ouncil the EU has stressed the need to fight indications of serious problems with discrimination based on religious or ethnic ground, have given rise religious discrimination Benede . Thus the Guidelines on freedom of religion or elief are a to charges of incoherence – or even hypocrisy – in the EU’s internal and external policies. This also applies response to the global threat to religious freedom: ‘Violations or abuses of freedom of religion or belief, to the position of the EU on the role of the state visvis religion. committed oth state and nonstate actors are widespread and complex and affect people in all parts The competence for EU interference in national models is restricted, as mentioned above. At the same of the world, including Europe’ Guidelines . ee also Lassen . time, although different types of the statereligion relationship can result in different regulation of In the spring of the European Parliament adopted a resolution on cultural and religious tolerance. religious norms and practices, there is a general consensus in Europe endorsed by the case law of the European Court of uman Rights that secular human rights law prevails, not allowing for legal pluralism. European Parliament Resolution of pril on EU foreign polic in a world of cultural and religious differences restates the Parliament’s will to foster policies which affirm ‘respect for cultural diversity and In other regions of the world, the relationship between state law and religious law is more intertwined, tolerance isis different concepts and eliefs comined with action to comat all forms of extremism as the influence of Islamic law on state law in a large number of iddle Eastern States demonstrates. In this context the EU takes a very pronounced position as expressed in the Guidelines on freedom of religion and fight inequalities’ (1). Acknowledging that cultural and religious differences hae een sources of conflict and human rights iolations the resolution states that it is exactl the understanding of religious or belief. The Guidelines states that ‘the EU does not consider the merits of the different religions or and cultural diersit which fosters tolerance and reconciliation. tressing the elief of the EU in the close beliefs, or the lack thereof, but ensures the right to believe or not to believe is upheld. The EU is impartial and is not aligned with any specific religion or belief’ (Guidelines, 7). At the same time the EU does not relationship between freedom of religion or belief and women’s rights as well as LGBTI rights, the insist on state neutrality of EU ember States. Such apparent inconsistencies have fueled charges of resolution reaffirms incoherence between EU’s external and internal policies. As expressed by the scholar Marco Ventura: that the protection of persons elonging to ulnerale groups such as ethnic or religious minorities the promotion of women’s rights and their empowerment, representation and ithout a European consistency in religious laws and policies, Europe lacks the credibility and authority to denounce and counter violations in other parts of the world. o consistency is participation in economic political and social processes and the fight against all forms of iolence and discrimination based on gender or sexual orientation must be among the EU’s goals in foreign possible in this field, without a basic reflection on the role of the State. This is why the 13 EU Guidelines on the promotion of freedom of religion or belief could not avoid starting from an relations . extremely strong assertion of the European Union as ‘impartial’ and ‘not aligned with any specific The Resolution ‘Calls on the EEAS and the EU Delegations worldwide to further engage with third countries religion or belief’… Europeans should address their own internal failures and seek consistency in and regional organisations in the promotion of intercultural and interreligious dialogue’ (31), and stresses European religious laws and policies, in order to be a legitimate and a credible international ‘the importance of providing EU staff with appropriate training to this end.’ promoter of freedom of religion and belief (Ventura 13: 3).

In the same period as progressie policies were adopted isis external affairs the EU Memer tates urther studies are recommended in the area of incoherence between EU external and internal policies experienced serious threat to freedom of religion or elief and to tolerance towards cultural and religious with respect to the neutrality of the state visvis religion. In addition, further studies are needed in the diersit. The Fundamental Rights genc FR carried out sures related to religious and cultural area of the position of the EU with regard to legal pluralism. minorities for instance sure on antiemitism in EU Memer tates which showed that man ews experienced an increased antiemitism FR report . Culture and religion have both the potential to hinder or, conversely, to enable human rights promotion. It is recommended that further studies are carried out with the aim of interpreting this indiisiilit of This becomes clear when analysing the global debate about the universality versus the relativity of human rights for religious minorit groups in EU Memer tates ased on releant FR reports. In addition rights, as this discourse has developed since the creation of the UDR. The chapter took this debate as its further studies are recommended which with a asis in FR reports on discrimination and perceied starting point, demonstrating that the universality debate today is of a fundamentally different nature discrimination of religious minorities in EU Memer tates analse the grounds and remedies for than at the beginning of the human rights era. Thus, today the principles of human rights are – at least in religiousl ased persecution. theory – universally accepted, and it is the interpretation of human rights in the context of culture at the forefront of national, regional and international controversy and debate. The chapter also outlined how

123 eiee o the quest for ‘overlapping consensus’ between human rights and diverse cultural traditions forms part of recent debates about the uniersality of human rights.

After a sketch of the international instruments regulating the area, the chapter proceeded to examine the European context, taking its point of departure in the fact that the EU has a long tradition of emphasising the uniersality and indiisibility of human rights and using the U as a source of inspiration, proiding the EU with a good ideological platform from which to engage in the international human rights debate. The chapter set out the most important EU legal documents in the context of religion and culture, and the toolbox employed by the EU in its external actions, including EU uman rights Guidelines. The EU affords ciil society (for instance faithbased communities) a substantial role in its external and internal actions, and promotes interreligious and intercultural dialogues on human rights. urther studies are recommended into the complex role played by ciil society in the promotion and protection of religious freedom as well as religious and cultural diersity and tolerance.

After a presentation of the European context of human rights, culture and religion, the chapter mapped three oerarching themes, all topical in human rights discourses globally and within the EU, its Member tates and third countries today. irst, women and gender in the context of cultural and religious diersity was canvassed from the point of view of the EU’s external actions, in particular the dilemma between freedom of religion, on the one hand, and LGBTI rights and women and girls’ rights on the other.

t is recommended that further studies are carried out with the aim of interpreting the indiisibility of rights in the cultural and religious context of women and gender, and that the role of ciil society in promoting religious freedom and tolerance as well as in promoting GT rights and women and girls’ rights are included in such studies.

econd, the protection of religious freedom as well as religious and cultural diersity and tolerance as a key challenge to the human rights regime, both in the EU Member tates and globally. The EU has in its external actions a progressie and comprehensie interpretation of freedom of religion or belief and of the indiisibility of religious freedom and other rights, notably freedom of expression. imilarly, there is a pronounced understanding of the different rights which come into play in the context of culture and religion for different groups of indiidual, for instance GT rights and the rights of women and girls. As regards EU Member tates, A reports indicate that the freedom of religion is insufficiently protected within the EU and that for instance the ewish minorities across Europe perceied a highly increased leel of antiemitism.

t is recommended that further studies are carried out with the aim of interpreting the indiisibility of rights for religious minority groups in EU Member tates (based on releant A reports) as well as in the external policies. n addition, further studies are recommended, which with a basis in A reports on discrimination and perceied discrimination of religious minorities in EU Member tates analyse the grounds and remedies for religiously based persecution.

The chapter’s third theme is ‘the tate, religion and culture’. This section considers the role of the tate with reference to culture and in particular religion. urther studies are recommended in the area of incoherence between EU external and internal policies with respect to the neutrality of the state isis

124 eiee o eiee o the quest for ‘overlapping consensus’ between human rights and diverse cultural traditions forms part of religion. In addition, further studies are needed in the area of the position of the EU with regard to legal recent debates about the uniersality of human rights. pluralism.

After a sketch of the international instruments regulating the area, the chapter proceeded to examine the European context, taking its point of departure in the fact that the EU has a long tradition of emphasising the uniersality and indiisibility of human rights and using the U as a source of inspiration, proiding the EU with a good ideological platform from which to engage in the international human rights debate. ouncil of the European Union EU trategic ramewor and ction lan on uman ights and The chapter set out the most important EU legal documents in the context of religion and culture, and the emocrac, Luxembourg, une , . toolbox employed by the EU in its external actions, including EU uman rights Guidelines. The EU affords EU Guidelines on the promotion and protection of freedom of religion or belief, oreign ffairs ouncil ciil society (for instance faithbased communities) a substantial role in its external and internal actions, meeting une . and promotes interreligious and intercultural dialogues on human rights. urther studies are recommended into the complex role played by ciil society in the promotion and protection of religious EU Guidelines on violence against women and girls and combatting all forms of discrimination against freedom as well as religious and cultural diersity and tolerance. them, General ffairs ouncil of ecember .

After a presentation of the European context of human rights, culture and religion, the chapter mapped European arliament esolution of pril on EU foreign polic in a world of cultural and religious three oerarching themes, all topical in human rights discourses globally and within the EU, its Member differences. . tates and third countries today. irst, women and gender in the context of cultural and religious diersity was canvassed from the point of view of the EU’s external actions, in particular the dilemma between Guidelines to promote and protect the enoment of all human rights b lesbian, ga, bisexual, freedom of religion, on the one hand, and LGBTI rights and women and girls’ rights on the other. transgender and intersex LGBTI persons. une .

t is recommended that further studies are carried out with the aim of interpreting the indiisibility of ienna eclaration and rogramme of ction. rights in the cultural and religious context of women and gender, and that the role of ciil society in The EU harter of undamental ights. promoting religious freedom and tolerance as well as in promoting GT rights and women and girls’ rights are included in such studies. The European onvention on uman ights.

econd, the protection of religious freedom as well as religious and cultural diersity and tolerance as a The Treat of the European Union. key challenge to the human rights regime, both in the EU Member tates and globally. The EU has in its The Treat on the unctioning of the European Union. external actions a progressie and comprehensie interpretation of freedom of religion or belief and of the indiisibility of religious freedom and other rights, notably freedom of expression. imilarly, there is a pronounced understanding of the different rights which come into play in the context of culture and religion for different groups of indiidual, for instance GT rights and the rights of women and girls. As regards EU Member tates, A reports indicate that the freedom of religion is insufficiently protected Bell, L.., athan, .., eleg, I. eds eotitin utue nd umn its, .. olumbia within the EU and that for instance the ewish minorities across Europe perceied a highly increased leel Universit ress. of antiemitism. Benhabib, . init in desit umn its in oued imes, ambridge olit ress. t is recommended that further studies are carried out with the aim of interpreting the indiisibility of oe, ., nd eiion in uoe, xford and ew or xford Universit ress. rights for religious minority groups in EU Member tates (based on releant A reports) as well as in the external policies. n addition, further studies are recommended, which with a basis in A reports on onnell, . nies umn its in eo nd tie, IthacaLondon ornell Universit discrimination and perceied discrimination of religious minorities in EU Member tates analyse the ress. grounds and remedies for religiously based persecution. rancioni, . and cheinin, . eds. utu umn its, Leiden artinus ihoff ublishers. The chapter’s third theme is ‘the tate, religion and culture’. This section considers the role of the tate with reference to culture and in particular religion. urther studies are recommended in the area of Ghanea, . ed. eiion nd umn its, ol. II, London outledge. incoherence between EU external and internal policies with respect to the neutrality of the state isis

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hmed nNa’im, A. (2007) ‘Global Citizenship and Human Rights: From Muslims in Europe to European Muslims’, in M.L.P. Loenen & J.E. Goldschmidt (eds), eiious uism nd umn its in uoe FRA report, isimintion nd te ime inst es in eme Sttes eeienes nd eetions Wee to te ine, ntwerpen – xford Intersentia, pp. – . o ntiSemitism. November 201). Available at http:fra.europa.euenpublication201discriminationandhatecrimeagainstjewseumember Craufurd Smith, R. (2014) ‘Article 22’, in Peers, S., Herve, T., enner, . , ard, . e te o stateseperiencesand last accessed 1 June 2014. undment its, omment, xford and ortland, regon art ublishing pp. . European Parliament Woring Group on Freedom of Religion or Belief (201) Annual Rapport 201. Hastrup, K. (2001) ‘Collective Cultural Rights: Part of the Solution or Part of the Problem?’, in K. Hastrup ed. e utues nd umn its, The agueLondonew or luwer Law International, pp. Human rights and democracy in the world. Report on EU Action in 2011, June 2012, available at: . http:eeas.europa.euhumanrightsdocs2011hrreporten.pdf last accessed 1 June 2014.

Lassen, E.M. (2001) ‘World religions, world values: in dialogue with the Bible’, in Hatrup, K. (ed.) umn Panel on Human Dignity (2011) otetin dinit n end o umn its. Authored by M. Nowa its on ommon ounds e uest o uniesit, The ague, London, ew or luwer Law a.o. Available at: http:www.udhr0.chagenda.html last accessed 1 June 2014. International, pp. . UN Special Rapporteur on Freedom of Religion and Belief (2012) eot o te Sei oteu on Lassen, E.M. (2014a) ‘Universalism and relativism’, e S ndoo o umn its, edited b ihr, eedom o eiion o eie, Heiner Bielefeldt. Presented to Human Rights Council, Twentysecond . and ar Gibne, . forthcoming. session, 24 December 2012. http:www.ohchr.orgDocumentsssuesReligionA.HRC.22.1English.pdf

Mancini, S. and de Witte, B. (2008) ‘Language rights as cultural rights: a European perspective’, Francioni, . and cheinin, . eds., utu umn its, Leiden artinus ihoff ublishers, pp. .

McCrea, R. (2014) ‘Article 10’, in Peers, S., Hervey, T., Kenner, J. , Ward, A. e te o undment its, omment, xford and ortland, regon art ublishing pp. .

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

In this chapter focus is on ethnic factors enabling or hindering human rights in the context of EU policies. Ethnic factors are understood as issues related to ethnicity which have an impact on the enoyment of human rights. Society and its demographic composition, legal structures and political climate have an impact on the enoyment of basic human rights as well as on access to ustice (see Chapter VI.A). Therefore the chapter will not look at how ethnicity in itself can hinder or enable human rights (but see here Chapter VII on religious and cultural factors), but rather on how ethnicity in its social context has conseuences for the enoyment of human rights by individuals and groups of particular ethnic origin. In this report, focus will be on nondiscrimination of ethnic minorities with regard to their access to basic rights within the EU and its Member States. More particularly, the chapter will focus on nondiscrimination visvis a selected number of areas where people belonging to a specific ethnic minority group may encounter difficulties in the enoyment of basic human rights.

The literature review has included an overview of scholarship on ethnicity and human rights, together with international and EU legal instruments and policies, surveys and statistics by either Member States or EU institutions, notably the European Union Agency for Fundamental Rights (FRA), and reports by civil society.

After an introduction to the concepts of intersectional and multiple discrimination, including an introduction to how ethnic factors are often combined with other factors, for instance social or economic, the chapter proceeds to a mapping of maor international instruments related to ethnicity and human rights. Then follows an analysis of the instruments and policies of the EU as well gaps and challenges vis avis policies or implementation, followed by an introduction to a number of selected issues that within the EU and its Member states are indicative of the relevance of ethnic factors for the enoyment of basic rights, namely:

 Access to the labour market  Access to health services  Access to information  Hate crime.

This list is not exhaustive but is representative of the most important and illuminating challenges to the enoyment of basic rights of ethnic minorities. Finally, a section is dedicated to Roma, the largest European ethnic minority group before a concluding section sums up the mapping, point to gap and challenges and suggest avenues for further research and analysis.

The authors of this chapter are Eva Maria Lassen, Senior researcher, the Danish Institute for Human Rights, and Dr. Daniel Garca San Jos, Associate Professor, University of Seville.

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 The principle of eual treatment between persons irrespective of racial or ethnic origin is a twosided right: on the one hand, it implies the right to euality before the law in its vertical dimension, normally In this chapter focus is on ethnic factors enabling or hindering human rights in the context of EU policies. imposing negative obligations on national authorities (namely legislators and policy makers), but not Ethnic factors are understood as issues related to ethnicity which have an impact on the enoyment of always. n the other hand, the principle of eual treatment also implies a positive obligation to promote human rights. Society and its demographic composition, legal structures and political climate have an eual treatment and the it to otetion inst disimintion – ot diet nd indiet o impact on the enoyment of basic human rights as well as on access to ustice (see Chapter VI.A). Therefore esons on te ound o i o etni oiin. Thereby the two dimensions must go hand in hand – as a the chapter will not look at how ethnicity in itself can hinder or enable human rights (but see here Chapter prohibition against discrimination does not eliminate ineualities and needs to be followed up by VII on religious and cultural factors), but rather on how ethnicity in its social context has conseuences initiatives and programs that promote euality, for instance by changing public attitudes. for the enoyment of human rights by individuals and groups of particular ethnic origin. In this report, With regard to ethnicity, two types of discrimination may occur: multiple and intersectional. The focus will be on nondiscrimination of ethnic minorities with regard to their access to basic rights within distinction between the two types is as follows: the EU and its Member States. More particularly, the chapter will focus on nondiscrimination visvis a selected number of areas where people belonging to a specific ethnic minority group may encounter Multiple discrimination occurs when a person is discriminated on the basis of several grounds difficulties in the enoyment of basic human rights. operating separately, for instance, by being treated less favourably on the ground of origin in one situation and because of gender in another. Intersectional discrimination is referred to where The literature review has included an overview of scholarship on ethnicity and human rights, together somebody is discriminated against on several grounds at the same time and in such a way that with international and EU legal instruments and policies, surveys and statistics by either Member States these are inseparable.2 or EU institutions, notably the European Union Agency for Fundamental Rights (FRA), and reports by civil society. Ethnic factors should not be seen in isolation from other factors. For instance, social, economic, gender, disability, and other factors may intersect with ethnic factors. The economic and financial crisis is an example of how societal exclusion can affect ethnic minorities more negatively than the maority After an introduction to the concepts of intersectional and multiple discrimination, including an population (Woods and Lewis 200: 210. ilsson and Wrench 2009: 2). ‘Multiple' and ‘intersectional' introduction to how ethnic factors are often combined with other factors, for instance social or economic, discrimination have been little studied so far but is central to the work of FRA and increasingly a topic of the chapter proceeds to a mapping of maor international instruments related to ethnicity and human academic studies. rights. Then follows an analysis of the instruments and policies of the EU as well gaps and challenges vis avis policies or implementation, followed by an introduction to a number of selected issues that within the EU and its Member states are indicative of the relevance of ethnic factors for the enoyment of basic The principle of euality runs like a thread through all international human rights documents, beginning rights, namely: with Art. 1 of the Universal Declaration of Human Rights (UDHR), which states that ‘[a]ll human beings are  Access to the labour market born free and equal in dignity and rights.’  Access to health services Despite this central significance of euality in the context of human rights, the reality looks somewhat  Access to information different. In all societies and States the right to euality is not only occasionally infringed upon but certain  Hate crime. groups are systematically and structurally disadvantaged in many areas of society. Human rights law acknowledges this fact by explicitly prohibiting the exclusion of certain groups (e.g. ethnic minorities, This list is not exhaustive but is representative of the most important and illuminating challenges to the women) from particular areas such as education, labour market or access to services. The principle of non enoyment of basic rights of ethnic minorities. Finally, a section is dedicated to Roma, the largest European discrimination recognises the fact that specific factors rooted in the structure and composition of the ethnic minority group before a concluding section sums up the mapping, point to gap and challenges and suggest avenues for further research and analysis. 1 According to Art. 2 of Council Directive 2000EC of 29 June 2000, direct discrimination refers to one person being treated less favourably than another in a comparable situation on grounds of their racial or ethnic origin. Indirect discrimination is taken to occur where an apparently neutral provision, criterion or practice will put persons of a racial or ethnic origin at a particular disadvantage in comparison with other persons, unless that provision, criterion or practice is obectively ustified by a legitimate aim and the mean of achieving that aim are appropriate The authors of this chapter are Eva Maria Lassen, Senior researcher, the Danish Institute for Human Rights, and Dr. and necessary. Daniel Garca San Jos, Associate Professor, University of Seville. 2 See http:fra.europa.euenproect2011multiplediscriminationhealthcare

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129 society enable or hinder the protection of human rights. olloing this rt. of the stipulates that ‘[e]veryone is entitled to all the rights and freedoms set forth in this eclaration ithout distinction of any ind such as race colour se language religion political or other opinion national or social origin property, birth or other status.’

number of the core human rights conentions contain a general prohibition of discrimination. oth the oenant on iil and olitical ights and oenant on conomic ocial and ultural ights both of state that

ach tate arty to the present oenant undertaes to respect and to ensure to all indiiduals ithin its territory and subect to its urisdiction the rights recognied in the present oenant ithout distinction of any ind such as race colour se language religion political or other opinion national or social origin property birth or other status rt. .

rticle of the lays down that ‘[a]ny adocacy of national racial or religious hatred that constitutes incitement to discrimination hostility or iolence shall be prohibited by law’, whereas Art. 26 asserts equality before the la

ll persons are equal before the la and are entitled ithout any discrimination to the equal protection of the la. n this respect the la shall prohibit any discrimination and guarantee to all persons equal and effectie protection against discrimination on any ground such as race colour se language religion political or other opinion national or social origin property birth or other status.

he ommittee on conomic ocial and ultural ights in its eneral omment o. une has stated that ‘race’ and ‘colour’ includes ‘ethnic origin’ (Committee on Economic, Social and Cultural ights .

n this onention the term racial discrimination shall mean any distinction eclusion restriction or preference based on race colour descent or national or ethnic origin hich has the purpose or effect of nullifying or impairing the recognition enoyment or eercise on an equal footing of human rights and fundamental freedoms in the political economic social cultural or any other field of public life rt. .

Article 1 also prescribes the use of ‘special measures’:

pecial measures taen for the sole purpose of securing adequate adancement of certain racial or ethnic groups or indiiduals requiring such protection as may be necessary in order to ensure such groups or indiiduals equal enoyment or eercise of human rights and fundamental freedoms shall not be deemed racial discrimination proided hoeer that such measures do not as a consequence lead to the maintenance of separate rights for different racial groups and

130 society enable or hinder the protection of human rights. olloing this rt. of the stipulates that that they shall not be continued after the obectives for which they were taen have been ‘[e]veryone is entitled to all the rights and freedoms set forth in this eclaration ithout distinction of achieved (Art. 1,. any ind such as race colour se language religion political or other opinion national or social origin property, birth or other status.’ The Convention further posits that State obligations include taing appropriate measure to eliminate racial discrimination: number of the core human rights conentions contain a general prohibition of discrimination. oth the oenant on iil and olitical ights and oenant on conomic ocial and ultural ights States arties condemn racial discrimination and undertae to pursue by all appropriate means both of state that and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: (a Each State arty undertaes to engage in no ach tate arty to the present oenant undertaes to respect and to ensure to all indiiduals act or practice of racial discrimination against persons, groups of persons or institutions and to en ithin its territory and subect to its urisdiction the rights recognied in the present oenant sure that all public authorities and public institutions, national and local, shall act in conformity ithout distinction of any ind such as race colour se language religion political or other with this obligation (Art. 2,1. opinion national or social origin property birth or other status rt. . The Committee on the Elimination of All orms of acial iscrimination (CE consists of independent rticle of the lays down that ‘[a]ny adocacy of national racial or religious hatred that eperts that monitor the implementation of the Convention by the States, who are obliged to submit constitutes incitement to discrimination hostility or iolence shall be prohibited by law’, whereas Art. 26 reports to CE every two years. CE also publishes eneral Comments with its interpretations of the asserts equality before the la Convention.

ll persons are equal before the la and are entitled ithout any discrimination to the equal eyond the comments of CE, there are other sources of international law that create obligations on protection of the la. n this respect the la shall prohibit any discrimination and guarantee to States with regard to ethnic discrimination, for instance the eclaration on the ights of ersons all persons equal and effectie protection against discrimination on any ground such as race elonging to ational or Ethnic, eligious and inguistic inorities ( eneral Assembly, 12. colour se language religion political or other opinion national or social origin property birth The Special apporteur on contemporary forms of racism, racial discrimination, enophobia and or other status. related intolerance was first appointed in 1, and is mandated to undertae country visits and he ommittee on conomic ocial and ultural ights in its eneral omment o. une submit annual report to the uman ights Council and the eneral assembly. has stated that ‘race’ and ‘colour’ includes ‘ethnic origin’ (Committee on Economic, Social and Cultural ights .

he onention on the limination of ll orms of acial iscrimination of has a focus on race and ethnic origin in particular. The Convention defines ‘racial discrimination’ in the following manner, The demographic landscape of European States has changed considerably since 2, in some States including discrimination based on ethnic origin dramatically. ecolonisation has meant that inhabitants of former colonies have come to Europe, and migrant worers and refugees have transformed societies, as has internal movement within the E. As a n this onention the term racial discrimination shall mean any distinction eclusion result, a large part of the European population today belongs to an ethnic minority. restriction or preference based on race colour descent or national or ethnic origin hich has the purpose or effect of nullifying or impairing the recognition enoyment or eercise on an equal Ethnic diversity is celebrated in the E, and different ethnic groups maing up society is considered a footing of human rights and fundamental freedoms in the political economic social cultural or positive aspect of cultural diversity and multiculturalism, enrichment and integration of different any other field of public life rt. . identities (estin 21: 2. t follows that threats to ethnic minorities are etremely adverse to E fundamental values. Article 1 also prescribes the use of ‘special measures’: The European Convention on uman ights (EC contains a prohibition on account of race and ethnic pecial measures taen for the sole purpose of securing adequate adancement of certain racial origin (Art. 1. urther, additional rotocol 12 includes a general discrimination prohibition. The or ethnic groups or indiiduals requiring such protection as may be necessary in order to ensure European Committee of Social ights is attached to the European Social Charter with a mandate to such groups or indiiduals equal enoyment or eercise of human rights and fundamental monitor that States parties are in conformity in law and in practice with the provisions of the Charter. freedoms shall not be deemed racial discrimination proided hoeer that such measures do not as a consequence lead to the maintenance of separate rights for different racial groups and

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European antidiscrimination legislation with a particular focus on race and ethnic origin is among the most etensive in the world . The E has been proactive in regards to combating discrimination on ground of race and ethnic origin, amply illustrated not only on the European Commission’s website but by the case law from European Court of ustice, research and studies carried by independent eperts.

The general prohibition of discrimination on ethnic grounds, is included in Art. 21,12, of the undamental ights Charter of European nion (CE:

Any discrimination based on any ground such as se, race, color, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or seual orientation shall be prohibited.

ithin the scope of application of the Treaty establishing the European Community and of the Treaty on European nsion, and without preudice to the special provisions of those treaties, any discrimination on grounds of nationality shall be prohibited

n addition Art. 22 of the Charter lays down that the nion ‘shall respect cultural, religious and linguistic diversity’. anguage rights also apply to third country nationals and their access to the labour maret within the E (See Chapter .C.1. The scope of the CE has limited scope and applies only to areas of E law (1(1 (See Chapter .C.1.a.

The Treaty on the Functioning of the European Union (TFEU) lays down that ‘the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European arliament, may tae appropriate action to combat discrimination based on se, racial or ethnic origin, religion or belief, disability, age or sexual orientation’ (Art. 1. ased on this provision several directives to prohibit and combat discrimination on these grounds have been adopted.

Ethnic factors have an impact on individuals accessing their human rights. n principle, all citiens of the E are eual before the law and in enoyment of their rights. n practice the picture is somewhat different when ethnic factors are taen into consideration, as persons who are either perceived to be or who are a member of a particular ethnic group face direct or indirect for that very reason. iscrimination on the ground of race and ethnic origin hinders eual access to rights. n lieu of this factor, the E has put in place legislation to combat discrimination and initiated a broad range of initiatives to support ember States to promote eual treatment irrespective of race and ethnic origin.

The E is at the frontline of antidiscrimination in Europe. n 2 the Council of inisters unanimously adopted two directives that in particular aim to combat discrimination within and outside of the labor maret on the ground of race and ethnic origin. Council irective 2EC of 2 une 2 implementing the principle of eual treatment between persons irrespective of racial or ethnic origin

See the – C (21 final, 1 ctober, 21. Among many, the European etwor of egal Eperts in the nondiscrimination ield. See http:www.non discrimination.net, last accessed 2 uly 21.

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European antidiscrimination legislation with a particular focus on race and ethnic origin is among the (often called the ace irective) and Council irective EC of ovember establishing a most etensive in the world . The E has been proactive in regards to combating discrimination on general framewor for eual treatment in employment and occupation (Framewor irective). part from ground of race and ethnic origin, amply illustrated not only on the European Commission’s website but these two directives the Council also adopted a program of action to encourage proects and campaigns by the case law from European Court of ustice, research and studies carried by independent eperts. to promote eual treatment at the national level.

The general prohibition of discrimination on ethnic grounds, is included in Art. 21,12, of the rticle of the ace irective reuires all ember tates, as a minimum, to establish a body or bodies undamental ights Charter of European nion (CE: (Euality bodies) with the purpose of providing independent assistance to victims of discrimination in pursuing their complaints of discrimination conduct independent surveys concerning discrimination and Any discrimination based on any ground such as se, race, color, ethnic or social origin, genetic publish independent reports and mae recommendations on any issue relating to such discrimination. features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or seual orientation shall be prohibited. n relation to EU antidiscrimination legislation some argues that protection against discrimination in accessing ones right irrespective of race and ethnicity has been extended by enabling right holders to ithin the scope of application of the Treaty establishing the European Community and of the claim their rights more effectively. Treaty on European nsion, and without preudice to the special provisions of those treaties, any discrimination on grounds of nationality shall be prohibited The EU antidiscrimination legislation, especially outside the labour maret, does not enable practitioners to lodge cases of multiple discrimination. urisprudence illustrates that the udiciary have a tendency to n addition Art. 22 of the Charter lays down that the nion ‘shall respect cultural, religious and linguistic only tae one factor into account – even though the case concerns intersection of two grounds of diversity’. anguage rights also apply to third country nationals and their access to the labour maret discrimination. The EU Commission has proposed horiontal antidiscrimination in recognition of the within the E (See Chapter .C.1. The scope of the CE has limited scope and applies only to areas of multilayered nature of discrimination. This legislation has as yet not been adopted by the Council of E law (1(1 (See Chapter .C.1.a. inisters. The Treaty on the Functioning of the European Union (TFEU) lays down that ‘the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the To provide the EU Commission and arliament with an insight into issues regarding race and ethnic European arliament, may tae appropriate action to combat discrimination based on se, racial or ethnic discrimination, the Commission established the EU onitoring Center (EUC) in . EUC was origin, religion or belief, disability, age or sexual orientation’ (Art. 1. ased on this provision several replaced by the EU gency for Fundamental ights (F) in (see Chapter .C..d). F has a special directives to prohibit and combat discrimination on these grounds have been adopted. mandate to monitor nondiscrimination in the area of race and ethnicity, a mandate which is reflected in the oring rogramme of F and has resulted in a large number of surveys and studies in the field. Ethnic factors have an impact on individuals accessing their human rights. n principle, all citiens of the The EU has taen other initiatives with the aim of promoting eual treatment and protecting against E are eual before the law and in enoyment of their rights. n practice the picture is somewhat different discrimination. For instance, ustice has a specific antidiscrimination unit with a focus on race and when ethnic factors are taen into consideration, as persons who are either perceived to be or who are a ethnicity – created at the same time as F, at which point the area was transferred from Employment member of a particular ethnic group face direct or indirect for that very reason. iscrimination on the to ustice, an illustration of the fact that the EU holds a more comprehensive view of discrimination ground of race and ethnic origin hinders eual access to rights. n lieu of this factor, the E has put in than ust in the context of labour. place legislation to combat discrimination and initiated a broad range of initiatives to support ember States to promote eual treatment irrespective of race and ethnic origin. The E is at the frontline of antidiscrimination in Europe. n 2 the Council of inisters unanimously The EU supports s woring with different types of discrimination, including religion and ethnicity. adopted two directives that in particular aim to combat discrimination within and outside of the labor These include the European etwor gainst acism (E) and the European ocial latform, who are maret on the ground of race and ethnic origin. Council irective 2EC of 2 une 2 recipients of annual funding from the Commission. implementing the principle of eual treatment between persons irrespective of racial or ethnic origin

See the – C (21 final, 1 ctober, 21. Euinet, Euality odies and ational uman ights nstitutions – aing the in to aximise mpact. ovember Among many, the European etwor of egal Eperts in the nondiscrimination ield. See http:www.non , Europe. httpwww.euineteurope.orgpdfE discrimination.net, last accessed 2 uly 21. Eualityodiesandationalumanightsnstitutions.pdf ast accessed uly .

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States’ labour market.

that ‘ ’

–

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multle a tersetoal srmato aess to health are o the rous o ae eer a etht. eos a stu multle srmato brs a oel ersete to the el o huma rhts. t meas tak to aout multle bakrou ators a the omlet o srmato thus aress a more aurate a rese a the eets o srmato. artular ulerable rou o eth mortes are reuees a mmrats ho ma hae ultes obta the seres oere b atoal health authortes. e ult oul be that the health authortes the ember States lak kolee o seases. other s that the uals lak kolee o ther rht to aess the health sstem. thr a seeml oteourr obstale s that the ual oes ot ko the oal lauae o the ember State a that o suet traslato s lae ash sttute or uma hts . reasl akolee roblem reet ears oers shatr treatmet. ata rom a umber o outres or stae emark sho that olutar amsso a the use o ore as ell as omulsor treatmet shatr sttutos s more ommo amo eth mortes tha the maort oulato. e reaso or ths seems to be lak o lauae traslato ash sttute or uma hts rream araoe el rask . urther aalss s eee to out the atual aess to health seres or reuees a mmrats th a e to aure ommo staars a a tool set or health authortes. Smlarl urther aalss s eee to out the shatr treatmet o eth mortes ember States th a e to aur ommo staars. th mortes ote hae ultes eers ther rht to ormato. s ote out hater o ths reort osrmator aess to the teret s reasl etral to the artato o the ual emorat eoom a soal le. s a result aess to ormato ma be seerel lmte. suet aess to ormato thouh the teret a ole ubl seres – or stae ue to the lauae use the ormato roe b the authortes or ot ha a omuter – a States’ labour market. urther maralse ulerable rous o uals lu ue to etht hater ... hs ma be ss ebstes a oal oumets o ubl authortes aet a lare umber o areas o the that ‘ eera le ash sttute or uma hts . relate roblem s that ubl soal a health authortes hae suet use o terreters. hs s also a roblem relato to ourts a a thus her aess to uste. ’ urther researh s eee to llumate osrmator aess to the teret o eth mort rous. –

httra.euroa.eueroetmultlesrmatohealthare last aesse ul .

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against a person’s disability, sexual orientation or gender identity are all examples of hate countries to ‘unmask’ the bias moti

to States to ‘take necessary measures, as appropriate, for offering Roma nomadic groups or Travelers camping places for their caravans, with all necessary facilities’ (CERD 2000: 27, para. 32), as well as to take

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The E has addressed the discrimination against Roma people in a series of documents, including the ramework for national Roma integration strategies up to 2020 (Commission ramework 20), and the Commission’s roposal for a Council Recommendation on effective Roma integration measures in the ember States (Commission roposal 203). against a person’s disability, sexual orientation or gender identity are all examples of hate n 20, the European Commission asked R ‘to contribute to monitoring and assisting Ewide efforts to implement the EU’s plan for Roma integration’, which has resulted in the initiation of a series of wide ranging series of studies and survey. countries to ‘unmask’ the bias moti The E is on the frontline of antidiscrimination in Europe and has been proactive in regards to combating discrimination on ground of race and ethnic origin, putting in place legislation to combat discrimination and initiating a long range of initiatives to support ember States to promote treatment irrespective of race and ethnic origin. otably, in 2000 the Council of inisters unanimously adopted two directives that in particular aim to combat discrimination within and outside of labor market on the ground of race and ethnic origin. The E onitoring Center (EC) created in was replaced by R in 200, with a special mandate to monitor the area of nondiscrimination in the area of race and ethnicity. lthough the E has taken very progressive measures in the field of nondiscrimination on account of ethnicity, effective implementation of E antidiscrimination legislation at ember State level has proved to be more difficult and uneven than anticipated. Some States have gone beyond the reuirements by passing strong legal instruments and independent euality bodies, while others have only ust met the minimum reuirements. t is recommended that a stronger monitoring is put in place with a view to finding out how ember States apply E law and protect ethnic minorities in practice, including the functioning and scope of euality bodies in ember States. oreover, a systematic collection of data on ethnicity in ember States is recommended with a focus on the access to basic rights, with a view to focused research to illuminate the problems in the area. The chapter highlighted areas which show ‘multiple' and ‘intersectional' discrimination of ethnic to States to ‘take necessary measures, as appropriate, for offering Roma nomadic groups or Travelers minorities: camping places for their caravans, with all necessary facilities’ (CERD 2000: 27, para. 32), as well as to take  ccess to the labour market. n this area it is recommended that further studies are conducted to analyse discriminatory institutional barriers that may prevent ethnic minorities being integrated in Member States’ labour market.  ccess to health services. urther analysis is needed to find out actual access to health services for refugees and immigrant with a view to acuire common standards and a tool set for the ealth authorities. urther analysis is needed to find out the psychiatric treatment of ethnic minorities in ember States with a view to acuire common standards.  ccess to information. urther research is needed to illuminate nondiscriminatory access to the internet of ethnic minority groups.

http:fra.europa.euenthemeroma, last accessed 2 uly 20

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 ate crime. urther crosscutting analses are needed to include the intersectional aspects of hate crime. Recommended that the EU should support the cooperation between ciil societ and the police in handling hatecrime on account of ethnic origin.

s in the section on the Roma, the representatie issues discussed aboe show that ethnic minorities ma be ictims of multiple and intersectional discrimination, and often encounter lack of enoment of basic rights within the catalogue of economic, social and cultural rights as well as ciil and political rights. urther research, based on eidence collected from Member States, is needed in this area.

Commission’ CM final. .., aailable at httpec.europa.euusticediscriminationfilescomen.pdf, last accessed on Ma .

Committee on Economic, Social and Cultural Rights EC.C, une , para. .

Council irectie EC of une implementing the principle of eual treatment between persons irrespectie of racial or ethnic origin, , , aailable at httpeur le.europa.eueUriSereUriSer.douriCEEE, last accessed Ma .

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 ate crime. urther crosscutting analses are needed to include the intersectional aspects of hate Coni ii C on oniions o n n sin o ion nions o crime. Recommended that the EU should support the cooperation between ciil societ and the police oss o i ii momn i in handling hatecrime on account of ethnic origin. oiioiC， s ss

s in the section on the Roma, the representatie issues discussed aboe show that ethnic minorities ma Coni ii nsin i o smo os i be ictims of multiple and intersectional discrimination, and often encounter lack of enoment of basic oiioi s ss rights within the catalogue of economic, social and cultural rights as well as ciil and political rights. urther research, based on eidence collected from Member States, is needed in this area. Coni mo ision on omin in oms n ssions o ism n nooi mns o imin i oiioi s ss Commission’ CM final. .., aailable at ision o om on omin in oms n ssions o ism n httpec.europa.euusticediscriminationfilescomen.pdf, last accessed on Ma nooi mns o imin . ii o on imn n o Coni o m on sin Committee on Economic, Social and Cultural Rights iion o o sin mi o ion nions o si n o in io o EC.C, une , para. . m n on ommon s o is o ion os siin in m i Council irectie EC of une implementing the principle of eual treatment between oiioi s ss persons irrespectie of racial or ethnic origin, , , aailable at httpeur le.europa.eueUriSereUriSer.douriCEEE, last accessed Ma . o Commission on i Council irectie EC of oember establishing a general framework for eual treatment C in in emploment and occupation, aailable at httpeur le.europa.eueUriSereUriSer.douriCEEE, last accessed Ma . nmn is C o on nion

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n te context o tis cater, tecnoloical actors are nderstood as isses related to te se o inormation and commnication tecnoloy tat ave an imact on te ay individals are able to enoy teir man rits is a broad and not clearly deined term tat reers to any commnication device or alication, encomassin radio, television, celllar ones, comter and netork ardare and sotare, satellite systems and so on, as ell as te varios services and alications associated it tem earc

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144

e ll e ess s s sses ele e se e ee ele e e e ee s eee e sll lee l ee e s lll s ell s e n te context o tis cater, tecnoloical actors are nderstood as isses related to te se o inormation and commnication tecnoloy tat ave an imact on te ay individals are able to e ssee lss s se e s e eese e enoy teir man rits is a broad and not clearly deined term tat reers to any commnication topical issue that has a potential positive or negative impact on the individual’s enjoyment of his/her device or alication, encomassin radio, television, celllar ones, comter and netork ardare s e e e s el eel les and sotare, satellite systems and so on, as ell as te varios services and alications associated it tem earc e selee s e s ess e ee e ee ees ee eess selel selle e se ee ince te scoe o tecnoloical actors tat may ave a otential man rits imact is extremely broad ee and diverse, tis cater rioritises isses tat are relected in contemorary olicy discorses at te level o te roean nion e list o actors addressed in tis cater are by no means exclsive bt eel e s e el eel l ls e e s e based on an interretative analysis o scolarly ork, olicy docments, and civil society reorts related s ess e ee ee eess selel e ele to te ield s art o te analysis, dominant crosscttin temes ave been extracted and sed to el les ees ee ees ee ee ee eel les cateorise and rioritise isses or analysis ese selle e se s s esse s ele el eel les e literatre revie on scolarly ork ertainin to and te inormation society as a articlar emasis on researc tat relates tese develoments to man rits and democracy e academic ield coverin tese temes is extremely broad and interdiscilinary, incldin scolarsi rom la, e ee e see s ee e sl sell e eee s lls commnication and media stdies, cltral stdies, and olitical science eese se ee se se e ee e el s es e literatre revie o olicy sorces incldes olicy docments at , oncil o roe o and sells ee s ee e ee e e les e ee level related to and man rits t level, key sorces inclde te irst eneral ssembly ‘structural match’, that relate it to the characteristics of modern societies e esoltions related to te internet t also incldes varios reorts rom secial rocedres, in sees e ese le ese s sl s e ee articlar rom te ecial aorter on te romotion and rotection o te rit to reedom o oinion el ssessle e esse sl s el s sl le e and exression, and rom te secial raorter on te romotion and rotection o man rits and se esses ndamental reedoms ile conterin terrorism ey sorces rom te o inclde te recently adoted ls se sells e esse s lssl els e ide on man its or nternet sers, ereas attention as been aid to te nmeros standard e els ee e e s eee ll es ss se s les settin docments related to and man rits develoed over te ast ten to it teen years itin shift in focus from ‘government to governance’, as well as broader access to agenda setting by different te o inally, at level, sorces inclde a broad array o olicy docments and leislation, sc as te s l el leel se e l ele s s e onoin reorm o te data rotection directive, and te recently adoted idelines on reedom o internet’s potential to enable political and social networks and to mobilise civil society across borders xression nline and line ee e e l sells e revie o civil society reorts and camains ave ocsed on roean iital its and e e ess e ee e s e es e les l e Privacy nternational P as to key roean actors itin tis ield ot and P ave condcted le e ee l le s esl ee ele sele lse s nmeros camains and reorts related to te man rits imlications o, or examle, data retention, eee e e le e ees sel e s e s biometrics, ilters and blockin, coyrit enorcement, and social media e ese e l eses ele ee el ses e l eess ele s ee s es s l el e ese ese le ele se l eee e se e ator o tis cater is r ikke rank rensen, esearcer, te anis nstitte or man its 50 ne o te irst scolars to introdce te concet inormation society as rit acl in rom oever, te concet became idely knon it aniel 51 e e ee ees ll sse s le ee e Bell’s rom l eel e l esl e

145 rights within private internet platforms, new forms of content control and censorship, echange of user data between public and private entities, commercial use of personal data, private gatekeepers in the public domain, etc

fter some years with focus on the anarchic nature of the internet, the key uestion is no longer whether it is possible to regulate the internet, but rather how to do it ollicino and assini

n contrast to the initial narrative and presumption of a neutral technology that is by default open and borderless it is now recognised that the technology provides for new levers of control and interference with fundamental rights and freedoms eardis oreover, the security and copyright interests are increasingly used as driving forces in developing the increased disciplinary capacity of the internet agner

dditionally, and no less important, is the challenge of enforcing regulation and providing users with effective access to remedies in this transnational space s part of the discourse on internet regulation, is increasingly referred to as the underlying normative framework ettemann

uman rights and fundamental freedoms are guaranteed in various international and regional instruments, which are applicable both to offline and online environments t the global level, the awareness of the human rights implications of the internet and other types of communication technology has risen steadily over the past years, and has resulted in internet related resolutions adopted by the eneral ssembly in and , respectively nited ations eneral ssembly nited ations uman ights ouncil nternet related potentials and challenges has also increasingly been addressed by special mechanisms such as the special rapporteur on the promotion and protection of the right to freedom of opinion and epression, rank a ue, and the former special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin. La Rue has highlighted the internet’s potential for strengthening the effective enjoyment of rights such as freedom of epression, freedom of information, freedom of association, freedom of assembly, and the right to take part in the conduct of public affairs, but also highlighted areas where these rights are under increasing pressure a ue a ue and cheinin have both emphasised the severe threats to the right to privacy via unprecedented means of surveillance a ue cheinin

‘The Internet is changing the world. It is not just a trilliondollar marketplace t is a forum where people connect, a platform for astounding innovation, and a powerful vehicle for human rights and fundamental freedoms’ (Kroes 2011:1).

egionally, a number of o conventions, declarations and recommendations provide human rights orientation for internet related issues ost recently, the o has developed a uide for nternet sers, which eplains in simple terms the relevant and standards as it relates to the uropean internet user ouncil of urope lso, there is an increasing number of internet related cases before the uropean ourt of uman ights ouncil of urope he uropean ourt of uman ights t has affirmed that ‘[t]he Internet has now become one of the principal means by which individuals exercise their right to freedom of epression and information, providing as it does essential tools for participation

146 rights within private internet platforms, new forms of content control and censorship, echange of user in activities and discussions concerning political issues and issues of general interest.’ (Ahmet Yıldırım v. data between public and private entities, commercial use of personal data, private gatekeepers in the Turey 2012). public domain, etc t level a large amount of directives policies and guidelines exist on internet and IT issues but not fter some years with focus on the anarchic nature of the internet, the key uestion is no longer whether necessarily in ways that address the issues from a human rights perspective or ensure a coherent and it is possible to regulate the internet, but rather how to do it ollicino and assini forward looing approach to the protection of human rights online. Key standardsetting documents related to the EU’s internal policy include the igital genda (uropean ommission 2010) the first of n contrast to the initial narrative and presumption of a neutral technology that is by default open and seven initiatives under urope 2020 the s strategy to deliver smart sustainable and inclusive growth. borderless it is now recognised that the technology provides for new levers of control and interference The igital genda provides an overall strategic orientation for Member States in the context of with fundamental rights and freedoms eardis oreover, the security and copyright technology with a primary focus on the broadband environment public digital services digital sills and interests are increasingly used as driving forces in developing the increased disciplinary capacity of the jobs cybersecurity copyright cloud computing and the electronics industry. ccording to the igital internet agner genda the internet is at the heart of seamless cross border services and the ‘internet economy’ in the dditionally, and no less important, is the challenge of enforcing regulation and providing users with 2 is expected to grow from . of in 2010 to . in 201 (uropean ommission 2010: ction effective access to remedies in this transnational space s part of the discourse on internet regulation, ). s part of the igital genda an ode of nline Rights has been developed (uropean ommission is increasingly referred to as the underlying normative framework ettemann 2012a). The ode sets out the basic under legislation in relation to the digital environment for example the right not to be discriminated against when accessing online services the right to have uman rights and fundamental freedoms are guaranteed in various international and regional personal data protected consumer rights when buying goods and services online and rights protecting instruments, which are applicable both to offline and online environments t the global level, the the individual in case of conflict such as access to dispute resolution. awareness of the human rights implications of the internet and other types of communication technology has risen steadily over the past years, and has resulted in internet related resolutions adopted by the In relation to the global discussions on internet governance the ompact for the Internet was launched eneral ssembly in and , respectively nited ations eneral ssembly nited ations as the EU ‘internet essentials’ in 2011 (European Commission 2011a). The Compact highlights, among uman ights ouncil nternet related potentials and challenges has also increasingly been others that there should be internet governed in a transparent prodemocracy and multi addressed by special mechanisms such as the special rapporteur on the promotion and protection staeholder manner. Moreover in relation to privacy and security the recently adopted ybersecurity of the right to freedom of opinion and epression, rank a ue, and the former special rapporteur on Strategy (uropean ommission 201a) clarifies the principles that should guide cyber security policy in the promotion and protection of human rights and fundamental freedoms while countering terrorism, the and internationally. The strategy emphasises that cyber security can only be sound and effective if Martin Scheinin. La Rue has highlighted the internet’s potential for strengthening the effective enjoyment it is based on fundamental rights and freedoms enshrined in the harter of undamental Rights. ny of rights such as freedom of epression, freedom of information, freedom of association, freedom of sharing of personal data for the purposes of cyber security should be compliant with data protection assembly, and the right to take part in the conduct of public affairs, but also highlighted areas where these law and tae full account of the individual’s rights in this field. rights are under increasing pressure a ue a ue and cheinin have both emphasised the severe With regard to the EU’s external policy, developments such as the Arab Spring have inspired the EU´s threats to the right to privacy via unprecedented means of surveillance a ue cheinin commitment to use different types of ITs to protect and promote human rights. ey point of reference is the Strategic ramewor on uman Rights and emocracy and the attached lan of ction (ouncil of the uropean nion 2012) as well as the oisconnect strategy (uropean ommission 2011c). The ‘The Internet is changing the world. It is not just a trilliondollar marketplace t is a forum where people aim of the Strategic ramewor is to promote human rights in all areas of the ’s external action, connect, a platform for astounding innovation, and a powerful vehicle for human rights and fundamental including in relation to technology and telecommunications internet and counterterrorism policy. The freedoms’ (Kroes 2011:1). framewor explicitly states that the is committed to promote freedom of expression opinion egionally, a number of o conventions, declarations and recommendations provide human rights assembly and association both online and offline and to entrench human rights in counterterrorism orientation for internet related issues ost recently, the o has developed a uide for nternet sers, activities. The oisconnect strategy was launched in 2011 but has not materialised to this point. Lie which eplains in simple terms the relevant and standards as it relates to the uropean internet user the framewor the strategy highlights the s commitment to respecting human rights on and offline ouncil of urope lso, there is an increasing number of internet related cases before the and further provides that internet and other communication technology are drivers of political freedom uropean ourt of uman ights ouncil of urope he uropean ourt of uman ights t democratic development and economic growth. oncretely the strategy proposes to assist people living has affirmed that ‘[t]he Internet has now become one of the principal means by which individuals exercise in nondemocratic regimes for example by providing tools to bypass censorship to enhance privacy and their right to freedom of epression and information, providing as it does essential tools for participation security and to raise awareness of riss relating to communication technology.

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oreover, the European arliament has adopted a igital reedom Strategy (European arliament 2012) that recognises unrestricted access to an open internet as an important enabler of human rights, and suggests that the EU’s trade and association agreements, development programs and accession negotiations should be conditional on respect for digital freedoms. t also proposes that the EU should stop the export of technologies used by authoritarian regimes to trac and trace human rights activists, ournalists and dissidents.

As illustrated above, a number of EU policies exist related to various aspects of technological developments and human rights. The folloing section ill focus on five factors that may potentially enable or hinder the protection of human rights in the EU´s external and internal policies. As part of the mapping and analysis, ey EU policy responses ill be identified as ell as issues that ill have to be further explored to ensure an effective and coherent human rights policy. A strategic approach to the ay technological developments may positively or negatively impact on human rights may guide the EU through areas here different interests may conflict, and be used to ensure that the EU has robust and coherent strategies and positions to promote and advance human rights internally as ell as externally.

The factors relate to (1) nondiscriminatory access to the internet (2) protecting internet freedoms () freedom of expression and selfregulation () privacy, surveillance, and cyber security and () internet governance.

n the context of this chapter, nondiscrimination refers to a human rights standard that stipulates that everyone is entitled to enoy human rights and freedoms, ithout distinction of any ind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. urthermore, no distinction shall be made on the basis of the political, urisdictional or international status of the country or territory to hich a person belongs (United ations 1 Art. 2).

Standards of euality and nondiscrimination are fundamental provisions of international human rights instruments such as the Universal eclaration of uman ights and the nternational Covenant on Civil and olitical ights, and echoed at European level in the European Convention on uman ights (EC) and the EU Charter of undamental ights (CEU). n the folloing the principle of nondiscrimination is related to internet access and services.

n the digital era, access to means of communication is intimately lined to poer. ost of the approximately 2. billion people currently connected to the internet have come to rely on it as an essential tool to participate in democratic, economic and social life. oreover, peoples everyday use of the internet is no longer limited to personal computers but to various mobile devices. As such an increasing percentage of the European population is connected in a ubiuitous fashion. n line ith this, access to the internet is increasingly discussed as a fundamental right related to societal participation and to poer, as illustrated by the increasing debate at the U uman ights Council on these issues.

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oreover, the European arliament has adopted a igital reedom Strategy (European arliament 2012) s EU emer tates increasingl move toards deliver o pulic services and inormation online, that recognises unrestricted access to an open internet as an important enabler of human rights, and uneual access to the internet can serve to marginalise vulnerale group and reinorce societal suggests that the EU’s trade and association agreements, development programs and accession disintegration along lines o income, age, ethnicit, geograph and disailit Uneual access to the negotiations should be conditional on respect for digital freedoms. t also proposes that the EU should internet relates both to existing ‘real world’ inequalities such as the ability to afford an internet connection stop the export of technologies used by authoritarian regimes to trac and trace human rights activists, and to the asmmetr in resources more generall ut also concerns the architecture o the technolog ournalists and dissidents. itsel, such as the design o hardare and sotare to support, or eample, access or people ith disailities As illustrated above, a number of EU policies exist related to various aspects of technological developments and human rights. The folloing section ill focus on five factors that may potentially nother aspect o nondiscriminator internet access concerns the notion o netor neutralit, hich enable or hinder the protection of human rights in the EU´s external and internal policies. As part of the has een a highl controversial issue in recent ears he term reers to the principle that internet traic mapping and analysis, ey EU policy responses ill be identified as ell as issues that ill have to be should e treated ithout undue discrimination, restriction or interference, so users enjoy the ‘greatest further explored to ensure an effective and coherent human rights policy. A strategic approach to the ay possile access to nternetased content, applications and services o their choice, hether or not the technological developments may positively or negatively impact on human rights may guide the EU are offered free of charge, using suitable devices of their choice’ (Council of Europe 2 para he through areas here different interests may conflict, and be used to ensure that the EU has robust and controvers concerns the one eteen s’ legitimate discretion to use traffic management as a tool to, coherent strategies and positions to promote and advance human rights internally as ell as externally. or eample, protect the securit and integrit o netors, and traic management that amounts to discriminator treatment o users or speciic services The factors relate to (1) nondiscriminatory access to the internet (2) protecting internet freedoms () freedom of expression and selfregulation () privacy, surveillance, and cyber security and () internet governance. n , a group o memers rom the arliamentar sseml o the oE stressed that internet access is not a uestion o roadand or ireless, it is aout guaranteeing the legal right to eual pulic services as ell as asic human rights elonen and other memers o the sseml, he claim that internet access is a key enabler for citizens’ ability to enjoy a number of human rights echoes international discourses and has een addressed, or eample, a ue, in his report adopted the U uman ights n the context of this chapter, nondiscrimination refers to a human rights standard that stipulates that ouncil in a ue he report emphasises that the internet has ecome an indispensale tool everyone is entitled to enoy human rights and freedoms, ithout distinction of any ind, such as race, or realiing a range o human rights, comating ineualit, and accelerating development and human colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other progress s a conseuence, ensuring universal access to the internet should e a priorit or all tates status. urthermore, no distinction shall be made on the basis of the political, urisdictional or ‘Each State should thus develop a concrete and effective policy, in consultation with individuals from all international status of the country or territory to hich a person belongs (United ations 1 Art. 2). sections o societ, including the private sector and relevant overnment ministries, to mae the nternet widely available, accessible and affordable to all segments of population’ (La Rue 2011: para. 85). As such, Standards of euality and nondiscrimination are fundamental provisions of international human rights access to the internet is considered a condition and an enaler or human rights and reedoms although instruments such as the Universal eclaration of uman ights and the nternational Covenant on Civil not recognised as a human right as such and olitical ights, and echoed at European level in the European Convention on uman ights (EC) and the EU Charter of undamental ights (CEU). n the folloing the principle of nondiscrimination is ithin EU emer tates, access to the internet is addressed in the EU Universal ervice irective related to internet access and services. E hich stipulates that everone ithin the region most e ale to access a minimum set o electronic communication services o good ualit at an aordale price oreover, all reasonale reuests or connection at a ied location to a pulic communication netor must e met at least n the digital era, access to means of communication is intimately lined to poer. ost of the one operator everal EU countries have stipulated the right to access the internet in national approximately 2. billion people currently connected to the internet have come to rely on it as an essential tool to participate in democratic, economic and social life. oreover, peoples everyday use of the internet is no longer limited to personal computers but to various mobile devices. As such an increasing 52 ithin the EU the term internet service provider is deined rather roadl, meaning an pulic or private entit percentage of the European population is connected in a ubiuitous fashion. n line ith this, access to that provides to users o this service the ailit to communicate means o a computer sstem and an other the internet is increasingly discussed as a fundamental right related to societal participation and to poer, entit that processes or stores computer data on ehal o such communication service European ommission as illustrated by the increasing debate at the U uman ights Council on these issues. 53 ee section o the ode o EU nline ights, hich dras on the Universal ervice irective

149 legislation.5 According to Eurostat 201, of E households have broadband internet access, while some eastern European countries have lower levels of household access with reece, ulgaria and Romania at 55 (European Commission 201d).

Concerning net neutrality, there is no common regulation at E level hence users face inconsistent rules leading to uneven levels of protection across E ember States. n response to this, a legislative package on a elecoms Single arket is currently being negotiated (European Commission 201c). he package aims at establishing Ewide rules on transparency, switching and traffic management, including a guarantee of net neutrality. he principle of net neutrality has been strongly advocated and campaigned for by civil society groups across Europe, in particular ER (ER 201).

he above mapping points to three issues, which would benefit from further exploration. irst, examine the need for policy measures to ensure that E citizens are provided with nondiscriminatory access to the internet and online public services as a prerequisite to participate in democratic life. Second, analyse whether this area should be strengthened as part of E external policy in order to ensure greater coherence. hird, study the impact of the proposed E regulation on net neutrality including its potential implications for E external policy related to telecommunication infrastructure.

‘Human rights policy is not just an addon. t is a silver thread which runs through everything we do. he right to communicate freely is a key part of basic human rights. he nternet and social media have become an important way of promoting freedom of expression. hats why the E is determined to resist any unjustified restrictions on the Internet and other new media’ (Catherine Ashton quoted in European Commission 2011e:1).

nternet freedom is a contested notion with no clear definition. t has, for example, been criticised for the cyberutopianism and internetcentrism often entailed with its use (orozov 2011: 18). At E level, the notion of internet freedoms has been used to characterise the Es external policy with regard to individuals’ ability to meet, interact and debate freely in the online sphere without illegitimate state interference. t typically relates to the human rights freedoms of expression, information, assembly and association, and the right to privacy, all part of international human rights law. n the following, focus is given to the Es role and commitments with regard to internet freedoms in its external policies, with issues pertaining to the Es internal policies covered in the subsequent section on freedom of expression and selfregulation. enerally speaking, these internal issues have not been framed as human rights issues to the same degree.

54 or example, the parliament of Estonia passed legislation in 2000 declaring internet access a basic human right. he constitutional council of rance effectively declared internet access a fundamental right in 200, and inland passed a decree in 200 stating that every internet connection needs to have a speed of at least one egabit per second (broadband level) (La Rue, 2011:18).

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150 legislation.5 According to Eurostat 201, of E households have broadband internet access, while some eastern European countries have lower levels of household access with reece, ulgaria and he open architecture of the internet has often been emphasised as ey to its potential for fostering Romania at 55 (European Commission 201d). human rights such as freedom of epression and assembly his is premised on the notion that lac of barriers and ‘gatekeepers’ between endpoints on a networ stimulate the free flow of information and Concerning net neutrality, there is no common regulation at E level hence users face inconsistent rules the circulation of innovation, enabling freedom of epression enler ittrain leading to uneven levels of protection across E ember States. n response to this, a legislative package imultaneously, internet technology also provides for new means and measures to interfere with on a elecoms Single arket is currently being negotiated (European Commission 201c). he package fundamental rights and freedoms aims at establishing Ewide rules on transparency, switching and traffic management, including a guarantee of net neutrality. he principle of net neutrality has been strongly advocated and campaigned ccording to research by the pen et Initiative, the first generation of internet controls consisted mainly for by civil society groups across Europe, in particular ER (ER 201). of firewalls at ey internet gateways, while the second generation aims to normalise or even legalise internet control his includes, for eample, targeted viruses, distributed denialofservice attacs, surveillance at key points of the internet’s infrastructure, and takedown notices eibert, alfrey et al, he above mapping points to three issues, which would benefit from further exploration. irst, examine a ue hapter I also provides an overview of some of the ways in which tates the need for policy measures to ensure that E citizens are provided with nondiscriminatory access to currently restrict freedoms online, for eample via arbitrary blocing or filtering of content criminaliation the internet and online public services as a prerequisite to participate in democratic life. Second, analyse of legitimate epression imposition of intermediary liability disconnecting users from internet access whether this area should be strengthened as part of E external policy in order to ensure greater cyber attacs and inadeuate protection of the right to privacy and data protection In recent years, coherence. hird, study the impact of the proposed E regulation on net neutrality including its potential increased public awareness and documentation such as that provided by the pen et Initiative has shed implications for E external policy related to telecommunication infrastructure. light on many of these practices and their interference with human rights ‘Human rights policy is not just an addon. t is a silver thread which runs through everything we do. he ollowing the rab pring the uropean arliament initiated a report to address how policy could have right to communicate freely is a key part of basic human rights. he nternet and social media have prevented, mitigated or avoided some of the negative effects of communications technologies during the become an important way of promoting freedom of expression. hats why the E is determined to resist uprising agner he report recommends building structures, which would enable the nion to any unjustified restrictions on the Internet and other new media’ support telecommunications operators in critical situations to develop a technical and diplomatic rapid (Catherine Ashton quoted in European Commission 2011e:1). response capacity for situations lie the turning off of internet and mobile phone networs and calls for stricter regulation of the ‘worst of the worst’ repressive technologies, as well as to consider regulation of nternet freedom is a contested notion with no clear definition. t has, for example, been criticised for the dual use technologies lso, it is suggested to mae public sector funding, financial support and cyberutopianism and internetcentrism often entailed with its use (orozov 2011: 18). At E level, the involvement in the creation of communications infrastructure conditional on commitment to human notion of internet freedoms has been used to characterise the Es external policy with regard to rights standards ubseuently, the uropean arliament in ecember adopted its igital reedom individuals’ ability to meet, interact and debate freely in the online sphere without illegitimate state Strategy in EU’s Foreign Policy (European Parliament 2012). interference. t typically relates to the human rights freedoms of expression, information, assembly and ithin the uropean Commission, the issue of internet freedoms was highlighted in the ‘Partnership for association, and the right to privacy, all part of international human rights law. n the following, focus is Democracy and Shared Prosperity with the Southern Mediterranean’ (European Commission 2011d) in given to the Es role and commitments with regard to internet freedoms in its external policies, with which the ommission commits to develop tools to allow the to assist civil society organisations or issues pertaining to the Es internal policies covered in the subsequent section on freedom of expression individual citiens to circumvent arbitrary disruptions to access to communications technologies, including and selfregulation. enerally speaking, these internal issues have not been framed as human rights issues the internet ubseuently, the o isconnect trategy was launched in ecember to honour the to the same degree. s commitment to ensure that human rights and fundamental freedoms are respected in the online environment uropean ommission c

he o isconnect strategy focuses on eveloping and providing technological tools to enhance

54 or example, the parliament of Estonia passed legislation in 2000 declaring internet access a basic human right. privacy and security of people living in nondemocratic regimes when using I ducating and raising he constitutional council of rance effectively declared internet access a fundamental right in 200, and awareness of activists about the opportunities and riss of I athering high uality intelligence inland passed a decree in 200 stating that every internet connection needs to have a speed of at least one egabit about what is happening ‘on the ground’ in order to monitor the level of surveillance and censorship in a per second (broadband level) (La Rue, 2011:18).

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151 given contet and () developing a practical way to ensure that all stakeholders can share information on their activity, promote multilateral action and build crossregional cooperation to protect human rights. More than two years after the launch, the strategy has still not been substantiated or published. Most recently, the EU uman ights uidelines on Freedom of Epression nline and ffline was adopted (Council of the European Union 201), as part of the EU strategic framework on uman rights and Democracy (Council of the European Union 2012).

ne of the areas in which the EU has been criticised for its adverse impact on human rights protection in third countries has been in relation to European eport of censorship and surveillance technology and dualuse technology to authoritarian regimes worldwide (oman and ork 2011 agner 2012). n response, a European Parliament resolution in 2011 suggested revising EU rules on eports of products that can be used for both civilian and military purposes, such as chemicals, telecommunications devices or software. he proposed EU regime for the control of eports, transfer, brokering and transit of dual use items would imply a comprehensive system of ‘Union General Export Authorisations’ with rules that define which products can be eported to which countries (European Parliament 2011). he European Council has not systematically responded to this call, however, in 2012 it introduced additional limitations on eport of surveillance technologies to ran (Council egulation (EU) o 22012) and Syria (Council egulation (EU) o 2012). uman rights concern related to EU eport of censorship and surveillance technology has been addressed by civil society groups such as P.

ased on the above three issues are suggested for further analysis. First, eamine the implementation of the o Disconnect strategy, for eample, what has the EU done to enhance the privacy and security of people living in nondemocratic countries Second, investigate different avenues for countering the adverse human rights impact of European technology eport to third countries. hird, analyse how greater coherence may be ensured between the eternal strategy on internet freedoms and the internal policy in the area of selfregulation (below).

n the following, focus is on selfregulation as a regulatory measure that impacts on the protection of internet freedoms such as freedom of expression and information in relation to the EU’s internal policies. Selfregulation usually refers to a process whereby private actors agree to rules regulating their activities, defined and enacted via codes of conduct (Schul and eld 20012). t is thus arrangements made between private parties based on voluntary commitment, without any interference by the State.

n the online realm, most infrastructure and services are in the hands of private companies, which raises a number of challenges related to human rights protection, rule of law, and access to effective remedies for users. Since the practices of private intermediaries are often based on voluntary codes of conduct

55 See e.g.

152 given contet and () developing a practical way to ensure that all stakeholders can share information on there is no uarantee that the pulic interest will ultimately e protected. cholars have arued that their activity, promote multilateral action and build crossregional cooperation to protect human rights. current practices imply that companies in the usiness of providin access to and services on the internet More than two years after the launch, the strategy has still not been substantiated or published. Most are de facto ein used to implement pulic policy with limited oversight. ‘Internet Service Providers are recently, the EU uman ights uidelines on Freedom of Epression nline and ffline was adopted commercial profit main entities who are increasinly ein ased to implement social policy without (Council of the European Union 201), as part of the EU strategic framework on uman rights and appropriate oversiht or accountaility. hey operate in a very confusin situation with reards to Democracy (Council of the European Union 2012). competin and sometimes contradictory leal reuirements. or example etween providin hih levels of quality of access to the Internet, on the one hand, and blocking access to services, on the other’ ne of the areas in which the EU has been criticised for its adverse impact on human rights protection in allahan Gerce et al. . third countries has been in relation to European eport of censorship and surveillance technology and dualuse technology to authoritarian regimes worldwide (oman and ork 2011 agner 2012). n larifyin the role and human rihts responsiility of internet companies is therefore a crucial component response, a European Parliament resolution in 2011 suggested revising EU rules on eports of products in the transition towards an information society ased on human rihts. Also the Et has affirmed that that can be used for both civilian and military purposes, such as chemicals, telecommunications devices the effective exercise of human rihts may reuire positive measures of protection even in the sphere of or software. he proposed EU regime for the control of eports, transfer, brokering and transit of dual relations etween individuals. he responsiility of the tate may e enaed as a result of failin to enact use items would imply a comprehensive system of ‘Union General Export Authorisations’ with rules that appropriate domestic leislation. define which products can be eported to which countries (European Parliament 2011). he European Council has not systematically responded to this call, however, in 2012 it introduced additional limitations n the U Guidin rinciples for usiness and uman ihts set a common and widely areed upon on eport of surveillance technologies to ran (Council egulation (EU) o 22012) and Syria (Council standard within the field United ations uman ihts ouncil . he Guidin rinciples have een egulation (EU) o 2012). uman rights concern related to EU eport of censorship and surveillance supported y followup initiatives such as the EU ector Guide on mplementin the U Guidin rinciples on usiness and uman ihts and for the European ommission as well technology has been addressed by civil society groups such as P. as various multistaeholder andor industryspecific initiatives such as the Gloal etwor nitiative and the ndustry ialoue. ased on the above three issues are suggested for further analysis. First, eamine the implementation of the o Disconnect strategy, for eample, what has the EU done to enhance the privacy and security of ome of the internet related cases of selfreulation that have caused human rihts concerns deal with people living in nondemocratic countries Second, investigate different avenues for countering the filterin and locin of online content and new ateeepers in the online domain includin privatised adverse human rights impact of European technology eport to third countries. hird, analyse how greater law enforcement. coherence may be ensured between the eternal strategy on internet freedoms and the internal policy in ilterin and locin of online content for example carried out y an nternet ervice rovider the area of selfregulation (below). interferes with the freedoms of expression and information and it is therefore essential that any such measure follows the threepart cumulative test for interference stipulated in human rihts law. uch interference must e provided y law which is clear and accessile to everyone it must pursue a leitimate purpose and it must e proven as necessary and the least restrictive means reuired to achieve n the following, focus is on selfregulation as a regulatory measure that impacts on the protection of the purported aim a ue para. . n ovemer the ourt of ustice of the European internet freedoms such as freedom of expression and information in relation to the EU’s internal policies. Union ruled that eneralised internet filterin violates Art. rotection of ersonal ata and Art. Selfregulation usually refers to a process whereby private actors agree to rules regulating their activities, reedom of Expression and nformation of the harter of undamental ihts of the European Union. defined and enacted via codes of conduct (Schul and eld 20012). t is thus arrangements made he rulin concerned whether emer tates are allowed to order an to install a system for filterin between private parties based on voluntary commitment, without any interference by the State. all electronic communications in order to identify electronic files in which the applicant claims to hold rihts and suseuently to loc the files. he rulin stated that the ecommerce directive ‘prohibits national authorities from adoptin measures which would reuire an to carry out eneral monitorin n the online realm, most infrastructure and services are in the hands of private companies, which raises of the information that it transmits on its network’ (SABAM vs. Scarlet (extended), 2011: para. 35) The a number of challenges related to human rights protection, rule of law, and access to effective remedies ourt found amon others that eneralised filterin could undermine freedom of information since for users. Since the practices of private intermediaries are often based on voluntary codes of conduct

56 t erein een ierfarien v. witerland no. . 55 See e.g.

153 filtering systems might not adequately distinguish between unlawful and lawful content and communications, which could lead to legal downloads being blocked. In 2012, the ourt again struck down the legality of filtering systems this time concerning filtering of content stored on web services (SABAM vs. etlog, 2012). In Sabam vs. etlog the court ruled that a social network cannot be obliged to install a general filtering system, covering all its users, in order to prevent the unlawful use of musical and audio visual work .

egarding the human rights implications of new gatekeepers in the online domain, aidlaw distinguishes between microgatekeepers (certain content moderators), authority gatekeepers (acebook, ikipedia, portals), and macrogatekeepers (ISPs, search engines) with macrogatekeepers having the greatest impact on democratic life (aidlaw 2012: 2). oncern has been raised, for example, with regard to third party liability for search engine providers in urope (oboken 2011). Since search engines make illegal or unlawful information more easily accessible for internet users, this raises the question of the extent to which providers can be held legally responsible for their role in facilitating such access (oboken 2011: 32). The legal uncertainty around liability may incentivise search engine providers to censor content when confronted with notices of alleged illegal content in their index. Moreover it has led to extralegal pressure on search engines to selfregulate by blocking or using blacklists. Most recently the ourt of ustice of the uropean nion have ruled that an search engine operator may in certain situations be obliged to remove links to personal information published by third parties, for example if the information is outdated (oogle Spain vs. the AP, 201). The court finds that by searching automatically and systematically for information published on the internet, the operator of a search engine collects data i.e. acts as data controller within the meaning of the ata Protection irective. In consequence the search engine operator must ensure that its activity complies with the directives requirements.

In relation to authority gatekeepers such as acebook, concern has been raised about the adverse impact that these companies may have on human rights protection on the internet, in particular freedom of expression and the right to privacy (aynesoldie 2012 agner 2013).

At the level selfregulation has been promoted since the midnineties, for example, in relation to ISPs blocking and filtering alleged illegal or harmful content.

Several large proects related to child protection (Safer Internet Programme), copyright enforcement (Intellectual Property ights (IP) nforcement irective 200), and counterterrorism measures (lean IT Proect) encourage ISPs to block and filter alleged illegal or harmful content.5 Scholars as well as civil society groups have criticised the uropewide practice of delegating powers to ISPs, since the decisions to sanction users and websites are taken administratively rather than udicially (allahan, ercke et al. 200 Brown 2010 oe Mcamee (I) 2011). xamples of this include ISP policing of peertopeer networks, privatised enforcement of copyright law, and blocking of websites alleged to contain illegal content, without a court order.

59 or research on uropewide practices of selfregulation see, for example, Tambini, eonardi et al. (200).

154 filtering systems might not adequately distinguish between unlawful and lawful content and According to the directive on commerce, ISPs are subect to limited liability for the third party communications, which could lead to legal downloads being blocked. In 2012, the ourt again struck down content they carry, implying that ISPs are not to be held liable unless they become aware of illegal content the legality of filtering systems this time concerning filtering of content stored on web services (SABAM and fail to take action. There is, however, a legal grey area surrounding the notification procedure (Patrick vs. etlog, 2012). In Sabam vs. etlog the court ruled that a social network cannot be obliged to install a an ecke and Truyens 200:1). general filtering system, covering all its users, in order to prevent the unlawful use of musical and audio visual work . In 2012, the international anticounterfeiting trade agreement (ATA) was reected by the uropean Parliament. ATA was criticised for encouraging private companies to reach ad hoc agreements for egarding the human rights implications of new gatekeepers in the online domain, aidlaw distinguishes enforcement of copyright law without sufficient due process standards. between microgatekeepers (certain content moderators), authority gatekeepers (acebook, ikipedia, portals), and macrogatekeepers (ISPs, search engines) with macrogatekeepers having the greatest In 2012, a ‘Noticeandaction procedures’ initiative was launched as part of an uropean ommission () impact on democratic life (aidlaw 2012: 2). oncern has been raised, for example, with regard to third Communication on ‘A coherent framework for building trust in the Digital Single Market for ecommerce party liability for search engine providers in urope (oboken 2011). Since search engines make illegal or and online services’ (COM (2011) 942 final). The initiative aims to provide greater legal certainty and to ensure adequate due process standards when internet intermediaries engage in selfregulation. oncrete unlawful information more easily accessible for internet users, this raises the question of the extent to which providers can be held legally responsible for their role in facilitating such access (oboken 2011: results of the initiative have not yet emerged. 32). The legal uncertainty around liability may incentivise search engine providers to censor content I has repeatedly warned against the human rights implications of filtering and blocking, privatised law when confronted with notices of alleged illegal content in their index. Moreover it has led to extralegal enforcement (e.g. ATA) and more generally lack of due process standards related to self regulation (I, pressure on search engines to selfregulate by blocking or using blacklists. Most recently the ourt of 2012). ecent proects that have been criticised for undermining human rights standards include the ustice of the uropean nion have ruled that an search engine operator may in certain situations be (hief xecutive fficer) coalition to make the internet a better place for kids and the lean IT Proect. obliged to remove links to personal information published by third parties, for example if the information is outdated (oogle Spain vs. the AP, 201). The court finds that by searching automatically and systematically for information published on the internet, the operator of a search engine collects data i.e. The above mapping points to four issues, which would benefit from further analysis. irst, examine the acts as data controller within the meaning of the ata Protection irective. In consequence the search extent to which filtering and blocking schemes applied across Member States uphold basic principles engine operator must ensure that its activity complies with the directives requirements. of international law. Second, clarify how the protects internet freedoms visvis new gatekeepers such as search engines and authority gatekeepers. Third, examine the followup measures related to the In relation to authority gatekeepers such as acebook, concern has been raised about the adverse impact IT Sector uide. ourth, analyse how greater coherence may be ensured between internal and that these companies may have on human rights protection on the internet, in particular freedom of external policy in this area. expression and the right to privacy (aynesoldie 2012 agner 2013). At the level selfregulation has been promoted since the midnineties, for example, in relation to ISPs blocking and filtering alleged illegal or harmful content. The right to privacy is stipulated in international human rights law such as the niversal eclaration of Several large proects related to child protection (Safer Internet Programme), copyright enforcement uman ights and the , In a European context, the right to privacy (‘private life’) is laid down in Art. (Intellectual Property ights (IP) nforcement irective 200), and counterterrorism measures of the , binding upon o states. It is also part of the harter of undamental ights and 5 (lean IT Proect) encourage ISPs to block and filter alleged illegal or harmful content. Scholars as well reedoms (Art. and ). The right to privacy protects the integrity of the individual and his or her home, as civil society groups have criticised the uropewide practice of delegating powers to ISPs, since the family, and correspondence, and is frequently expressed as a precondition for a free and open society, decisions to sanction users and websites are taken administratively rather than udicially (allahan, ercke including for the right to freedom of expression. In the following focus is given to informational privacy et al. 200 Brown 2010 oe Mcamee (I) 2011). xamples of this include ISP policing of peertopeer and related protection measures such as data protection laws and agencies. networks, privatised enforcement of copyright law, and blocking of websites alleged to contain illegal content, without a court order. yber security refers to the expanding but loosely defined field pertaining to the internet as a critical infrastructure that needs to be protected from various threats such as cyber crimes, espionage or ’cyber war’ (Deibert 2013).

59 or research on uropewide practices of selfregulation see, for example, Tambini, eonardi et al. (200).

15 155

155

The right to privacy is possibly one of the most under pressure rights in the digital era. The means of harnessing data is unprecedented, while no global standards for data protection exist. Moreover, recent allegations of mass surveillance both inside and outside E borders have raised the issue to a political level not previously seen.

The threats to privacy and data protection are complex and cover a number of interlinked issues such as increased and crossborder data collection, storage and use by private and public entities (big data, cloud computing) the human rights challenges of having maor infrastructure hubs and internet services located outside the E, and the increasing focus on cyber security.

In recent years, cyber security has become an important narrative in the regulation of the internet, and numerous cyber security units have been established at national, regional and international level. Scholars have warned that excessive emphasis on cyber security may undermine fundamental freedoms, for example, in the form of ‘cyberforces’ established within the military framework with limited democratic control and oversight (Deibert 2013 id 2013).

The former N Special apporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, has urged the N uman ights Council to recommend measures for the creation of a global declaration on data protection and data privacy (Scheinin 2009 para. 3). The need for a global standard on privacy has also repeatedly been expressed by the group of Data rotection and rivacy Commissioners at their annual meetings. In response to the Snowden revelations, the N eneral Assembly in 2013 adopted its first esolution on The ight to rivacy in the Digital Age (nited Nations eneral Assembly 2013).

In the area of privacy and data protection, it is almost impossible to maintain the traditional division between the EU’s internal and external policies – as data flows across borders and violations may occur from internal and external sources.

The E is often claimed to have one of the strongest data protection regimes worldwide. The E data protection regime, however, has been under revision since 2010, and several controversies remain. The new data protection regulation proposes, for example, to strengthen user control over their data when using internet services sanctions for internet services that do not comply with the European data protection regulation including those located abroad, and a right to be forgotten. 0 Additionally, a separate directive is proposed to cover the actions of law enforcement and intelligence services.

0 On 13 May 2014, the Court of ustice of the European nion ruled that an internet search engine (oogle) is responsible for data collection within the meaning of the E Data rotection Directive. It follows that oogle in certain cases may be obliged to remove links to webpages published by third parties that contain personal information. See httpcuria.europa.eucmsuploaddocsapplicationpdf20140cp14000en.pdf, last accessed 14 May 2014.

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econiin that there are nmeros policy isses pertainin to priacy and data protection, the followin The right to privacy is possibly one of the most under pressure rights in the digital era. The means of focses on for core topics related to clod comptin, bi data, extraterritorial data protection, and harnessing data is unprecedented, while no global standards for data protection exist. Moreover, recent cyber secrity allegations of mass surveillance both inside and outside E borders have raised the issue to a political level not previously seen. irstly, clod comptin refers to storin and accessin of data and prorams oer the internet instead of on a compters hard drie lod comptin implies loss of control oer data, dependence on the The threats to privacy and data protection are complex and cover a number of interlinked issues such as clod proider and sbcontractors, and in particlar their adherence to EU data protection standards he increased and crossborder data collection, storage and use by private and public entities (big data, cloud European Commission in 2012 adopted a strategy for ‘Unleashing the Potential of Cloud Computing in computing) the human rights challenges of having maor infrastructure hubs and internet services located Europe’ (European Commission 2012). One of the aims of the strategy is to develop model contract terms outside the E, and the increasing focus on cyber security. that wold relate isses sch as data disclosre and interity, data location and transfer, ownership of the data, and direct and indirect liability by clod proiders and sbcontractors his reflects a nmber of In recent years, cyber security has become an important narrative in the regulation of the internet, and challenes related to secrin EU data protection standards isis clod proiders and sbcontractors numerous cyber security units have been established at national, regional and international level. Scholars located otside the EU have warned that excessive emphasis on cyber security may undermine fundamental freedoms, for example, in the form of ‘cyberforces’ established within the military framework with limited democratic econd, bi data refers to the collection and se of lare and complex data sets, for example, to predict control and oversight (Deibert 2013 id 2013). bsiness trends, preent diseases, and combat crime ayerchnberer i data raises a nmber of data protection challenes, incldin those related to data collected from different risdictions, data The former N Special apporteur on the promotion and protection of human rights and fundamental sed for prposes other than those for which they were collected, and different leels of secrity hese freedoms while countering terrorism, Martin Scheinin, has urged the N uman ights Council to challenes are addressed in pinion on prpose limitation by the rt ata rotection orkin recommend measures for the creation of a global declaration on data protection and data privacy arty rt 29 Data Protection Working Party 2013). Big data is also part of the European Commissions’ (Scheinin 2009 para. 3). The need for a global standard on privacy has also repeatedly been expressed ata ale hain tratey, an initiatie that aims to enerate the maximm ale at the different staes by the group of Data rotection and rivacy Commissioners at their annual meetings. In response to the of the data ale chain, throh a coherent Eropean ecosystem centered on data he stratey mentions Snowden revelations, the N eneral Assembly in 2013 adopted its first esolution on The ight to the importance of findin the riht balance between indiidals potential priacy concerns and the rivacy in the Digital Age (nited Nations eneral Assembly 2013). exploitation and reuse of citizens’ data, while also empowering citizens to use their data in any way they wish to In the area of privacy and data protection, it is almost impossible to maintain the traditional division hird, there is maor data protection challenes related to the fact that many infrastrctre hbs and between the EU’s internal and external policies – as data flows across borders and violations may occur internet serices are located otside the EU n response to the nowden reelations in ne , the from internal and external sources. Eropean arliament adopted a resoltion on the U ational ecrity ency sreillance prorams in The E is often claimed to have one of the strongest data protection regimes worldwide. The E data ly , specifically on how and other sch prorams affect Eropeans’ fundamental rights and protection regime, however, has been under revision since 2010, and several controversies remain. The freedoms Eropean arliament, n response, the ommittee on iil iberties, stice and ome new data protection regulation proposes, for example, to strengthen user control over their data when ffairs E has held a nmber of hearins and issed seeral stdies on the isse n anary , E using internet services sanctions for internet services that do not comply with the European data rapporter lade oraes proposed a Eropean diital habeas corps for protectin priacy, incldin protection regulation including those located abroad, and a right to be forgotten. 0 Additionally, a the adoption of the EU data protection reform, and to ensre proper redress mechanisms for EU citiens separate directive is proposed to cover the actions of law enforcement and intelligence services. in case of data transfers from the EU to the U for law enforcement prposes Eropean arliament, a n ebrary this was followed by an Eropean arliament resoltion sestin, inter alia, that afe arbor shold be sspended and the ransatlantic rade and nestment artnership shold be postponed ntil the U flly respects EU fndamental rihts Eropean arliament b

orth, cyber secrity is a steadily expandin policy area that is closely related to priacy and data 0 On 13 May 2014, the Court of ustice of the European nion ruled that an internet search engine (oogle) is responsible for data collection within the meaning of the E Data rotection Directive. It follows that oogle in protection, and oes beyond internal and external policies nternetbased attacks can oriinate from certain cases may be obliged to remove links to webpages published by third parties that contain personal anywhere in the world, and it is often extremely difficlt to identify the sorce of attack s a reslt, the information. See httpcuria.europa.eucmsuploaddocsapplicationpdf20140cp14000en.pdf, last bondaries between stice and home affairs policy on the one hand, and forein policy on the other, accessed 14 May 2014.

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ecome increasingly lurred (Bendiek 2012 ). lso, concern has een raised that cyer security units are estalished with limited democratic oversight and control, and that the strong focus on cyer security may overrule the right to privacy (Deiert 2013 Bendiek and Wagner 2012). Current EU responses related to cyer security include a numer of Digital genda actions (European Commission 2010), such as the estalishment of a network of Computer Emergency esponse eams (CEs) at national level. oreover, the EU cyer security strategy (European Commission 2013a) and the proposal for a Directive on etwork and nformation ecurity (European Commission 2013) aim to estalish minimum standards in all EU emer tates with regard to prevention, resilience and international cooperation.

he field of privacy and data protection has een suect to numerous civil society campaigns, demonstrations and actions over the past years. he area continues to receive consideraly attention amongst civil society groups in Europe, in particular groups such as P and ED.

Based on the aove analysis, three issues are suggested for further exploration. irst, examine the implications of the EU data protection reform (if adopted), for example, will it provide sufficient protection of EU users in the era of ig data, cloud computing, and social media econd, study the potential avenues for strengthening the protection of European users when violations occur extraterritorially. hird, clarify how the EU will seek to ensure that the transnational cyer security agenda is ound y human rights and the rule of law.

he internet poses distinct regulatory challenges as an international, decentralised technology that has evolved without strong state control, although the U Department of Commerce has held a special position since its interception (ueller 2002). ince the U World ummit on the nformation ociety (W) 2003200, the notion of internet governance has een used to refer to the many interlinked processes that steer the management and development of the internet (Working roup on nternet overnance 200). central part of this deate is the role of the Uased nternational Corporation for Assigning Names and Numbers (ICANN), which is ‘the only globally visible body charged with any kind of oversight for the Internet’ (Cerf 2004: 9).

ince W, the current internet governance model, and C in particular, has repeatedly een criticised for not ensuring that rules, procedures and decisionmaking are ased on human rights standards, including access to effective remedies for internet users. oreover, it has een iterated time and again that C needs to e more accountale, transparent and inclusive to the gloal south and the BC countries.

ccess to remedies for persons whose human rights have een violated is a fundamental part of international human rights law and thus tates must ensure that individuals have means of otaining remedies where violations have occurred. his has proven to e a great challenge in the gloal information domain, where internet services in many cases are located outside the national urisdiction.

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ecome increasingly lurred (Bendiek 2012 ). lso, concern has een raised that cyer security units are he nowden revelations in une 20, renewed calls for establishing an international framework for estalished with limited democratic oversight and control, and that the strong focus on cyer security internet governance based on democratic values and human rights. At the th session of the nited may overrule the right to privacy (Deiert 2013 Bendiek and Wagner 2012). Current EU responses related Nations eneral Assembly, in fall 20, the railian resident made a strong case for this and launched to cyer security include a numer of Digital genda actions (European Commission 2010), such as the a global multistakeholder meeting in ao aulo in Aril 204 to move this agenda forward estalishment of a network of Computer Emergency esponse eams (CEs) at national level. oreover, (Nmundial). he gathering was generally well received however, several civil society grous were the EU cyer security strategy (European Commission 2013a) and the proposal for a Directive on etwork critical towards the final result of the meeting.2 and nformation ecurity (European Commission 2013) aim to estalish minimum standards in all EU emer tates with regard to prevention, resilience and international cooperation. Currently, the global debate – among both state and nonstate actors – about how to govern the internet he field of privacy and data protection has een suect to numerous civil society campaigns, have intensified with some countries in favor of strengthening the todown government control of the demonstrations and actions over the past years. he area continues to receive consideraly attention internet, whereas ember tates have favoured a bottomu multistakeholder aroach. here is amongst civil society groups in Europe, in particular groups such as P and ED. strong concern amongst member states that a centralised, todown mechanism for internet governance determined by governments would diminish human rights rotection on the internet and be inconsistent with its oen architecture. Based on the aove analysis, three issues are suggested for further exploration. irst, examine the implications of the EU data protection reform (if adopted), for example, will it provide sufficient protection In its most recent communication on internet governance (Com (204) 2 final), the uroean of EU users in the era of ig data, cloud computing, and social media econd, study the potential avenues Commission eresses concern that revelations of mass surveillance rograms and increasing fear of for strengthening the protection of European users when violations occur extraterritorially. hird, clarify cyber crime have negatively affected trust in the internet, which could lead to ressure for new national how the EU will seek to ensure that the transnational cyer security agenda is ound y human rights and and regional structures that might cause fragmentation of the internet. he Communication rooses a the rule of law. common uroean vision for internet governance based on resect for fundamental rights and democratic values multistakeholder governance structures based on clear rules that resect those rights and values a single, unified network access to udicial remedies when rights are infringed a strengthened and reformed Internet overnance orum and a globalised Internet Cororation for Assigned Names and he internet poses distinct regulatory challenges as an international, decentralised technology that has Numbers (ICANN) and Internet Assigned Numbers Authority (IANA). evolved without strong state control, although the U Department of Commerce has held a special he toic of internet governance has been subect to strong civil society activism and camaigning since position since its interception (ueller 2002). ince the U World ummit on the nformation ociety the I rocess began in 200. Civil society grous such as I remain involved in many of the human (W) 2003200, the notion of internet governance has een used to refer to the many interlinked rights issues related to internet governance. processes that steer the management and development of the internet (Working roup on nternet overnance 200). central part of this deate is the role of the Uased nternational Corporation for Assigning Names and Numbers (ICANN), which is ‘the only globally visible body charged with any kind of Based on the above four issues are suggested for further analysis. First, clarify the Commission’s mandate oversight for the Internet’ (Cerf 2004: 9). on internet governance as a matter of eternal olicy. econd, investigate ossible avenues towards a future model for internet governance based on human rights standards. hird, eamine how the multi stakeholder aroach may be further develoed to include the lobal outh and the IC countries. ince W, the current internet governance model, and C in particular, has repeatedly een ourth, study ossible measures for imroving access to remedies for uroean internet users in the criticised for not ensuring that rules, procedures and decisionmaking are ased on human rights global information domain. standards, including access to effective remedies for internet users. oreover, it has een iterated time and again that C needs to e more accountale, transparent and inclusive to the gloal south and the BC countries.

ccess to remedies for persons whose human rights have een violated is a fundamental part of international human rights law and thus tates must ensure that individuals have means of otaining remedies where violations have occurred. his has proven to e a great challenge in the gloal information 61 See last accessed 4 ay 204. 62 or analysis of the Nmundial meeting from a civil society ersective, see: domain, where internet services in many cases are located outside the national urisdiction. htt:infoustice.orgarchives240> last accessed 4 ay 204.

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his chater has illustrated ey technological factors that may enable or hinder the rotection of human rights in the s internal or eternal olicies. elated to internal olicies, focus has been on non discriminatory access to the internet and freedom of eression and selfregulation. Concerning eternal olicies, this has included issues related to internet freedoms and internet governance. Finally, rivacy, surveillance, and cyber security is addressed as a theme ith both internal and eternal olicy imlications.

he first internal olicy factor – highlights that uneual access to the internet can serve to marginalise vulnerable grous and reinforce societal disintegration along lines of income, age, ethnicity, geograhy and disability. his is articularly imortant as ember tates increasingly move toards delivery of ublic services and information online. he rincile of non discrimination also relates to the user’s ability to reach any content or service without undue restrictions net neutrality. n conclusion, three issues are suggested for further analysis. First, eamine the need for olicy measures to ensure that citiens are rovided ith nondiscriminatory access to the internet and online ublic services as a rereuisite to articiate in democratic life. econd, analyse hether this area should be strengthened as art of eternal olicy in order to ensure greater coherence. hird, study the imact of the roosed regulation on net neutrality including its otential imlications for eternal olicy related to telecommunication infrastructure.

he second eternal olicy factor – – stresses that the oen architecture of the internet have enabled human rights but also lead to ne tyes of restrictions such as blocing or removal of legitimate eression and disconnecting users from internet access. he has taen a number of strategic initiatives to romote internet freedoms in third countries, yet has also been criticised for its adverse imact on human rights rotection in these countries, for eamle, in relation to its eort of technology used for censorshi and surveillance. n conclusion, three issues are suggested for further analysis. First, eamine the imlementation of the o isconnect strategy, for eamle, hat has the done to enhance the rivacy and security of eole living in nondemocratic countries econd, investigate different avenues for countering the adverse human rights imact of uroean technology eort to third countries . hird, analyse ho greater coherence may be ensured beteen the eternal strategy on internet freedoms and the internal olicy in the area of selfregulation belo.

he third internal olicy factor – – addresses selfregulation as a idely deloyed ractice amongst uroean s, for eamle to enforce coyright regulation or to bloc ebsites ith unanted content. elfregulation has been criticised for lac of due rocess standards and for impacting negatively on EU citizens’ right to freedom of expression and freedom of information. n conclusion, four issues are suggested for further analysis. First, eamine the etent to hich filtering and blocing schemes alied across ember tates uhold basic rinciles of international la. econd, clarify ho the rotects internet freedoms visvis ne gateeeers such as search engines and authority gateeeers. hird, eamine the follou measures related to the C ector uide. Fourth, analyse ho greater coherence may be ensured beteen internal and eternal olicy in this area.

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he fourth internal and external policy factor highlights the his chater has illustrated ey technological factors that may enable or hinder the rotection of human right to privacy as one of the most challenged rights in the digital era he threats to privacy and data rights in the s internal or eternal olicies. elated to internal olicies, focus has been on non protection are complex and cover a number of interlined issues such as crossborder data collection discriminatory access to the internet and freedom of eression and selfregulation. Concerning eternal storage and use by private and public entities extraterritorial violations of the right to privacy and the olicies, this has included issues related to internet freedoms and internet governance. Finally, rivacy, increased focus on cyber security oreover no global standard for data protection exists n conclusion surveillance, and cyber security is addressed as a theme ith both internal and eternal olicy three issues are suggested for further analysis irst examine the implications of the EU data protection imlications. reform if adopted for example will it provide sufficient protection of EU users in the era of big data cloud computing and social media econd study the potential avenues for strengthening the protection he first internal olicy factor – highlights that uneual access of European users when violations occur extraterritorially hird clarify how the EU will see to ensure to the internet can serve to marginalise vulnerable grous and reinforce societal disintegration along lines that the transnational cyber security agenda is bound by human rights and the rule of law of income, age, ethnicity, geograhy and disability. his is articularly imortant as ember tates increasingly move toards delivery of ublic services and information online. he rincile of non he fifth external factor – addresses human rights challenges related to the discrimination also relates to the user’s ability to reach any content or service without undue restrictions processes that steer the management and development of the internet he current model has been net neutrality. n conclusion, three issues are suggested for further analysis. First, eamine the need for criticised for not ensuring that rules procedures and decisionmaing are based on human rights olicy measures to ensure that citiens are rovided ith nondiscriminatory access to the internet standards including access to effective remedies for users he global debate about how to govern the and online ublic services as a rereuisite to articiate in democratic life. econd, analyse hether this internet are strongly controversial with some countries in favor of strengthening topdown government area should be strengthened as art of eternal olicy in order to ensure greater coherence. hird, control whereas EU ember tates have favoured a bottomup multistaeholder approach n study the imact of the roosed regulation on net neutrality including its otential imlications for conclusion, four topics are suggested for further analysis. First, clarify the Commission’s mandate on eternal olicy related to telecommunication infrastructure. internet governance as a matter of external policy econd investigate possible avenues towards a future model for internet governance based on human rights standards hird examine how the multi he second eternal olicy factor – – stresses that the oen architecture staeholder approach may be further developed to include the lobal outh and the countries of the internet have enabled human rights but also lead to ne tyes of restrictions such as blocing or ourth study possible measures for improving access to remedies for European internet users in the removal of legitimate eression and disconnecting users from internet access. he has taen a global information domain number of strategic initiatives to romote internet freedoms in third countries, yet has also been criticised for its adverse imact on human rights rotection in these countries, for eamle, in relation to its eort of technology used for censorshi and surveillance. n conclusion, three issues are suggested for further analysis. First, eamine the imlementation of the o isconnect strategy, for eamle, hat has the done to enhance the rivacy and security of eole living in nondemocratic countries econd, investigate different avenues for countering the adverse human rights imact of uroean technology ouncil of Europe trasbourg eort to third countries . hird, analyse ho greater coherence may be ensured beteen the eternal ouncil of Europe strategy on internet freedoms and the internal olicy in the area of selfregulation belo. Council of Europe (2013). ‘Factsheet – New technologies’. Strasbourg: Council of Europe. he third internal olicy factor – – addresses selfregulation as a idely deloyed ractice amongst uroean s, for eamle to enforce coyright regulation or to ouncil of Europe bloc ebsites ith unanted content. elfregulation has been criticised for lac of due rocess trasbourg ouncil of Europe standards and for impacting negatively on EU citizens’ right to freedom of expression and freedom of information. n conclusion, four issues are suggested for further analysis. First, eamine the etent to rticle ata rotection oring arty russels E hich filtering and blocing schemes alied across ember tates uhold basic rinciles of ustice international la. econd, clarify ho the rotects internet freedoms visvis ne gateeeers such as search engines and authority gateeeers. hird, eamine the follou measures related to the ouncil of the European Union C ector uide. Fourth, analyse ho greater coherence may be ensured beteen internal and uxembourg ouncil of the European Union eternal olicy in this area.

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identifies crucial aspects of the implementation of human rights in EU policies linked to States and state sovereignty, ideologies, power, citizenship and democracy. On the importance of state structures for the implementation and guarantee of human rights, two aspects were singled out: the issue of the position of Member States in the political structure of the EU and the shape and configuration of the EU as an actor of uniue structure. The EU, therefore, differs considerably from ‘traditional’ state structures normally entrusted with respecting, protecting and fulfilling human rights. Both aspects may either hinder human rights protection at the EU level or open up new windows of opportunity for human rights. However, both dimensions have to be further scrutinised by reference to their role in the realisation of human rights.

With regard to ideologies, neoliberalism, growing nationalism and racism are perceived to be serious threats to the enoyment of human rights as they may undermine social and economic rights and welfare state policies, uestion the human rights proect as such, or reect the universal application of human

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167 rights. ore indepth research is reuired to grasp the precise interrelation between ideologies such as neoliberalism, nationalism and racism and the implementation of human rights at the EU level. ower relations refer to the position and influence of political actors in the EU human rights framewor as well as to the uestion of whose interest are included in the EU human rights agenda and whose are marginalised. n addition, human rights play a decisive role in the conception and selfimage of the EU as a normative power in the international system. urther research is necessary to identify if the EU actually meets these ambitious standards, especially when it comes to potential contradictions between human rights norms and national and economic interests, and who are the powerful and less powerful actors in the EU human rights process.

itienship may be a serious challenge to human rights because of its exclusive dimensions. EU citienship is a fragmented concept and adds to the proliferation of different status groups whose members enoy differing access to fundamental rights. n addition, the concept of EU citienship creates a gap with reference to nonEU citiens and may put the latter group in a wea situation, sometimes having only limited access to certain rights. urther research should address the uestion of how to close this citienship gap to grant all individuals affected eual access to their rights.

emocracy as the realisation of political rights is flawed at EU level. lthough the EU has seen a remarable strengthening of its democratic uality through the reaty of isbon, there are still problematic issues when it comes to the democratic legitimacy of the EU’s political system and output. lac of transparency and accountability as well complex structures which hinder political participation are perceived to negatively impair the EU’s democratic quality. Therefore, an important starting point for further research concerns how the strengthening of human rights at EU level can enhance not only the democratic legitimacy of the EU political system but also promote transparency and accountability at EU level.

shows that fundamental rights and human rights are an integral part of both internal and external EU activities. n the reaty on European Union (EU), the reaty on the unctioning of the European Union (EU) and the harter of undamental ights of the European Union (EU) there exists a strong legal basis for this claim. t is notable that when the EU deals with the protection of rights inside the EU it uses the term ‘fundamental rights’ (Preamble and Art. 6). Whereas the arguably more narrow term ‘human rights’ is used in the TEU in relation to the EU’s contact with third States in ‘the wider world’ (Art. 3 and Art. 21). The accession of the EU to the European onvention of uman ights (E) and the ratification of additional international human rights conventions are important legal factors that can uphold international human rights law in internal and external EU internal and external behaviour.

Even though there is a strong legal basis for respecting and protecting human rights in the EU both internally and externally it is possible to identify certain gaps and shortcomings. hese may create legal uncertainty and hinder effective protection of human rights in EU activities. or example, ambiguities in the EU on the distinction between rights and principles and the scope and interpretation of rights in the harter visvis similar rights in the E. urthermore, the precise scope of application of the harter when the EU and ember tates implementing EU law are acting in third tates is contested.

168 rights. ore indepth research is reuired to grasp the precise interrelation between ideologies such as inally, the question of attribution of responsibility between the EU and ember States raises a number neoliberalism, nationalism and racism and the implementation of human rights at the EU level. ower of comple unsettled legal questions. Some of these may ultimately be dealt with and clarified by the relations refer to the position and influence of political actors in the EU human rights framewor as well ourt of ustice of European Union (EU) on a casebycase basis – and eventually also by the European as to the uestion of whose interest are included in the EU human rights agenda and whose are ourt of uman ights (Et) when the EU has acceded to the onvention. ut this might tae time and marginalised. n addition, human rights play a decisive role in the conception and selfimage of the EU as it can be questioned whether these issues would better be dealt with by a political body – lie the EU a normative power in the international system. urther research is necessary to identify if the EU actually ouncil and Parliament – than a court. urther research and analysis is required concerning the scope of meets these ambitious standards, especially when it comes to potential contradictions between human application of the EU shared human rights responsibility between the EU and ember States and rights norms and national and economic interests, and who are the powerful and less powerful actors in the possibility and consequences of EU ratification of other international human rights and humanitarian the EU human rights process. law conventions. Such wor will create a robust basis for informed decision maing either by the EU or EU political bodies. itienship may be a serious challenge to human rights because of its exclusive dimensions. EU citienship is a fragmented concept and adds to the proliferation of different status groups whose members enoy taes as its focal point the economic and financial crisis which started in differing access to fundamental rights. n addition, the concept of EU citienship creates a gap with 2 and its global impact. t affected the European Union by negative growth during 213. iscal reference to nonEU citiens and may put the latter group in a wea situation, sometimes having only tightening and greater fiscal controls ensued, affecting baning, securities and financial supervision. limited access to certain rights. urther research should address the uestion of how to close this Unemployment increased to the highest level since 1 and youth unemployment affected almost a citienship gap to grant all individuals affected eual access to their rights. quarter of the younger generation in the EU. Up to a fourth of the EU population was at ris of poverty. The analyses contained in the chapter demonstrate that the economic crisis and the climate of austerity emocracy as the realisation of political rights is flawed at EU level. lthough the EU has seen a undermined the traectory for a more social and inclusive Europe laid out in the Europe 22 Strategy. remarable strengthening of its democratic uality through the reaty of isbon, there are still between stated goals and the reality in ember States, particularly in Southern Europe, problematic issues when it comes to the democratic legitimacy of the EU’s political system and output. made the 22 Strategy appear somewhat unrealistic. The poverty reduction goals of the 22 Strategy lac of transparency and accountability as well complex structures which hinder political participation are were put in eopardy. Siteen per cent of Europeans felt ecluded while the emphasis of the isbon Treaty perceived to negatively impair the EU’s democratic quality. Therefore, an important starting point for and the 22 Strategy was social inclusion. further research concerns how the strengthening of human rights at EU level can enhance not only the democratic legitimacy of the EU political system but also promote transparency and accountability at EU The economic and financial crisis resulted in internal deterioration of, notably, the right to an adequate level. standard of living, rights lined to social security, the right to housing, the right to wor, and the rights of the child. These trends were moreover mared by trends of growing differential access to services and shows that fundamental rights and human rights are an integral part of both influence of particular groups. The reality of enoying economic and social rights was therefore only internal and external EU activities. n the reaty on European Union (EU), the reaty on the unctioning reaching a proportion of European populations. The right to tae part in the conduct of public affairs was of the European Union (EU) and the harter of undamental ights of the European Union (EU) also threatened. there exists a strong legal basis for this claim. t is notable that when the EU deals with the protection of rights inside the EU it uses the term ‘fundamental rights’ (Preamble and Art. 6). Whereas the arguably An enabling factor at the economic level is that the economic crisis might abate by now. The employment more narrow term ‘human rights’ is used in the TEU in relation to the EU’s contact with third States in ‘the figures for 213 indicate that the level of unemployment may be on the way down. The Europe 22 wider world’ (Art. 3 and Art. 21). The accession of the EU to the European onvention of uman ights Strategy and the policies around the internal maret still seem to be taen seriously by the ommission (E) and the ratification of additional international human rights conventions are important legal and implementation and rights reinforcement of the strategy might be strengthened over the coming factors that can uphold international human rights law in internal and external EU internal and external years. behaviour. Eternally, trade and development assistance have been less severely affected by the crisis. These areas Even though there is a strong legal basis for respecting and protecting human rights in the EU both are characterised by legalisation and stronger reference to fundamental rights and to fundamental values, internally and externally it is possible to identify certain gaps and shortcomings. hese may create legal but questions can be raised concerning the impact of the human rights emphasis in eternal economic uncertainty and hinder effective protection of human rights in EU activities. or example, ambiguities in actions. The chapter raises questions regarding the with which human rights elements are the EU on the distinction between rights and principles and the scope and interpretation of rights in integrated into eternal policies. A positive and enabling factor at the eternal level is that human rights the harter visvis similar rights in the E. urthermore, the precise scope of application of the prevail as a strong and that there seems to be a will for increasing dialogue between the harter when the EU and ember tates implementing EU law are acting in third tates is contested. EU, its third country partners, and civil society groups.

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to children’s rights. Concerning the protection of old persons the pic e actual implementation and impact of children’s rights and policies, an in

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fundamentall different nature than at the eginning of the human rights era. hus, toda the principles of human rights are – at least in theor – uniersall accepted, and it is the interpretation of human rights s’ in the contet of culture hich is at the forefront of national, regional and international controersies and s’ s’ deates. he chapter also outlines ho the uest for an ‘overlapping consensus’ between human rights and dierse cultural traditions form part of recent deates aout the uniersalit of human rights. he chapter proceeds to eamine the uropean contet, taing its point of departure in the long tradition of the in emphasising the uniersalit and indiisiilit of human rights and using the as a source of inspiration. his proides the nion ith a good platform from hich to engage in the international human rights deate. he chapter outlines the most important legal documents in the contet of religion and culture, and the toolo emploed the in its eternal actions, including uman ights uidelines. he affords ciil societ for instance faithased communities a sustantial role in its eternal and internal actions, and promotes interreligious and intercultural dialogues on human rights. urther studies are recommended into the comple role plaed ciil societ in the promotion and protection of religious freedom as ell as religious and cultural diersit and tolerance. fter a presentation of the uropean contet of human rights, culture and religion, the chapter maps three oerarching themes, all topical in human rights discourses gloall and ithin the , its emer tates and third countries toda. irst, omen and gender in the contet of cultural and religious diersit is canassed from the point of view of the EU’s external actions, in particular the dilemma between freedom of religion, on the one hand, and LGBTI rights and women and girls’ rights on the other. t is recommended that further studies e carried out ith the aim of interpreting this indiisiilit of rights in the cultural and religious contet of omen and gender, and that the role of ciil societ in promoting religious freedom and tolerance as ell as in promoting rights and omen and girls’ rights e included in such studies. econd, the protection of religious freedom as ell as religious and cultural diersit and tolerance as a e challenge to the human rights regime is eamined, oth in the emer tates and gloall. he has in its eternal actions a progressie and comprehensie interpretation of freedom of religion or elief and of the indiisiilit of religious freedom and other rights, notal freedom of epression. s regards emer tates, the uropean nion genc for undamental ights reports indicate to children’s rights. Concerning the protection of old persons the pic that the freedom of religion is insufficientl protected ithin the and that for instance the eish minorities across urope perceie a highl increased leel of antiemitism. e actual implementation and impact of children’s rights and policies, an in t is recommended that further studies e carried out ith the aim of interpreting the indiisiilit of rights for religious minorit groups in emer tates ased on releant reports. n addition, further studies are recommended hich, ased on reports on discrimination and perceied discrimination of religious minorities in emer tates, analse the grounds and remedies for religiousl ased persecution. The chapter’s third theme is ‘the State, religion and culture’. This section considers the role of the tate ith reference to culture and religion. urther studies are recommended concerning perceied

171 incoherences between EU external and internal policies with respect to the neutralit of the State vis vis religion. In addition, further studies are needed regarding the position of the EU on legal pluralism.

shows that the EU is on the frontline of antidiscrimination in Europe and has been proactive in combating discrimination on the grounds of race and ethnic origin, putting in place legislation to combat discrimination and initiating a long range of initiatives to support ember States to promote eual treatment irrespective of race and ethnic origin. otabl, in the ouncil of inisters unanimousl adopted two directives that particularl aim to combat discrimination within and outside of the labor maret on the grounds of race and ethnic origin. The EU onitoring enter EU created in was replaced b in , with a special mandate to monitor cases of discrimination in the area of race and ethnicit.

lthough the EU has taen ver progressive measures in the field of nondiscrimination on account of ethnicit, effective implementation of EU antidiscrimination legislation at ember State level has proved to be more difficult and uneven than anticipated. Some States have gone beond the reuirements b passing strong legal instruments and setting up independent eualit bodies, while others have onl ust met the minimum reuirements. It is recommended that a stronger monitoring of ember State policies be put in place with a view to finding out how EU law and protect ethnic minorities are applied in practice, including the functioning and scope of eualit bodies in ember States. oreover, a sstematic collection of data on ethnicit in ember States is recommended with a focus on the access to basic rights, so as to foster research seeing to identif problems in the area.

This chapter furthermore highlights instances of ‘multiple' and ‘intersectional' discrimination of ethnic minorities

 ccess to the labour maret In this area it is recommended that further studies be conducted to analse discriminator institutional barriers that ma prevent ethnic minorities from being integrated in the Member States’ labour market.  ccess to health services urther analsis is needed to find out the actual conditions of access to health services for refugees and immigrant, so as to designe common standards and toolsets for the health authorities. urther analsis is additionall needed regarding the pschiatric treatment of ethnic minorities in ember States.  ccess to information urther research is needed to document and prevent discriminator access to the internet of ethnic minorit groups.  ate crime urther crosscutting analses are needed that include the intersectional aspects of hate crime. It is recommended that the EU would support the cooperation between civil societ and the police in handling hatecrime on account of ethnic origin.

s the section on the oma in this chapter demonstrates, the above issues show that ethnic minorities ma be the victims of multiple and intersectional discrimination, and often suffer from a lac of enoment of basic rights within the catalogue of economic, social and cultural rights as well as civil and political rights. urther research, based on evidence collected from ember States, is needed in this area.

172 incoherences between EU external and internal policies with respect to the neutralit of the State vis addresses nondiscriminator access to te internet protection o vis religion. In addition, further studies are needed regarding the position of the EU on legal pluralism. internet reedoms reedom o epression and selreulation priac sureillance and cber securit and internet oernance. eardin te capter ilits tat shows that the EU is on the frontline of antidiscrimination in Europe and uneual access to te internet can result in te marinalisation o ulnerable roups and reinorce societal has been proactive in combating discrimination on the grounds of race and ethnic origin, putting in place disinteration. is is particularl important as Member States moe toards delier o public legislation to combat discrimination and initiating a long range of initiatives to support ember States to serices and inormation online. n conclusion it is suested to eamine potential polic measures to promote eual treatment irrespective of race and ethnic origin. otabl, in the ouncil of inisters ensure tat citiens are proided it nondiscriminator access to te internet and online public unanimousl adopted two directives that particularl aim to combat discrimination within and outside of serices as a prereuisite to participation in democratic lie. the labor maret on the grounds of race and ethnic origin. The EU onitoring enter EU created in was replaced b in , with a special mandate to monitor cases of discrimination in the area oncernin te open arcitecture o te internet as ostered uman rits but also of race and ethnicit. led to ne tpes o restrictions. e as taken a number o polic initiaties to promote internet reedoms in tird countries et it as also been criticised or its aderse impact on uman rits lthough the EU has taen ver progressive measures in the field of nondiscrimination on account of protection in tose countries or eample in relation to tecnolo eport. n conclusion it is suested ethnicit, effective implementation of EU antidiscrimination legislation at ember State level has proved to eamine te implementation o te o isconnect strate and to inestiate dierent aenues or to be more difficult and uneven than anticipated. Some States have gone beond the reuirements b counterin te aderse uman rits impact o tecnolo eport to tird countries. passing strong legal instruments and setting up independent eualit bodies, while others have onl ust met the minimum reuirements. It is recommended that a stronger monitoring of ember State policies e teme o addresses selreulation as a idel deploed be put in place with a view to finding out how EU law and protect ethnic minorities are applied in practice, practice tat as been criticised or lack o due process standards and neatiel impactin on reedom including the functioning and scope of eualit bodies in ember States. oreover, a sstematic o epression and inormation. t is suested to eamine te etent to ic ilterin and blockin collection of data on ethnicit in ember States is recommended with a focus on the access to basic scemes applied across Member States upold basic principles o international la. rights, so as to foster research seeing to identif problems in the area. n relation to te rit to priac is ilited as one o te most This chapter furthermore highlights instances of ‘multiple' and ‘intersectional' discrimination of ethnic pressured rits in te diital era. e callenes pertain to a number o interlinked issues suc as cross minorities border data collection storae and use b priate and public entities etraterritorial iolations o te rit to priac and te escalated ocus on cbersecurit. n conclusion suested areas o stud include  ccess to the labour maret In this area it is recommended that further studies be conducted to to eamine te implications o te data protection reorm and to eplore as o strentenin te analse discriminator institutional barriers that ma prevent ethnic minorities from being integrated protection o uropean users en iolations occur etraterritoriall. in the Member States’ labour market.  ccess to health services urther analsis is needed to find out the actual conditions of access to inall ocus on uman rits callenes related to te current model ic as health services for refugees and immigrant, so as to designe common standards and toolsets for the been criticised or not ensurin tat rules procedures and decisionmakin are based on uman rits health authorities. urther analsis is additionall needed regarding the pschiatric treatment of standards. t is suested to inestiate possible aenues toards a model or internet oernance based ethnic minorities in ember States. on uman rits standards.  ccess to information urther research is needed to document and prevent discriminator access to the internet of ethnic minorit groups. s te aboe summaries ae son te mappin carried out in tis report proides te picture o a  ate crime urther crosscutting analses are needed that include the intersectional aspects of hate dierse multiaceted and multilaered compleit. ilst te actors are too dierse to dra an one crime. It is recommended that the EU would support the cooperation between civil societ and the sinle conclusion as to at enables and inders te enoment o uman rits in relation to internal police in handling hatecrime on account of ethnic origin. and eternal policies te olloin oerarcin temes emere s the section on the oma in this chapter demonstrates, the above issues show that ethnic minorities irst te principle o nondiscrimination at te core o uman rits is callened b arious aspects o ma be the victims of multiple and intersectional discrimination, and often suffer from a lac of enoment te actors. is is apparent in apter on reliious and cultural actors ic sos aspects o of basic rights within the catalogue of economic, social and cultural rights as well as civil and political discrimination aainst or instance omen and reliious minorities. ter eamples are ound in apter rights. urther research, based on evidence collected from ember States, is needed in this area. on etic actors ic sos tat etnic minorities are at risk o multiple and intersectional

173 discrimination and in apter on ecnoloical actors ic demonstrates o nondiscriminator access to te internet is bein callened marinalisin alread ulnerable roups o indiiduals.

Second and linked to te aboe te actors oten act as a doubleeded sord as ar as uman rits protection is concerned. or eample as son in apter on cultural and reliious actors reliion and culture oten include bot elements ic inder and acilitate uman rits policies in eternal actions. noter eample is ound in apter on ecnoloical actors ic demonstrates o tese actors ma enance te rits o indiiduals in teir eercise o or instance reedom o epression and access to inormation but ma also undermine te rits o ulnerable roups.

ird tere is a marked oerlap beteen te uman rits ic are aected neatiel or positiel in te analsed actors. e dierent actors oten inluence te same rits enablin andor inderin uman rits protection. o take reedom o epression as an eample tis rit ma be aected b actors as dierse as social cultural and reliious tecnoloical. is calls or a sstematic olistic and consistent approac to uman rits underlinin teir indiisibilit.

ourt uman rits as a alue ae inspired te ormerl since its establisment in post ar urope and continue to do so in te deelopment o instruments and policies dealin it te rits linked to te dierent actors. e uman rits proect is still in te makin and eolin in a dnamic interaction it te dierent actors described in tis report.

e mappin demonstrates tat te in a istoricall eolin process as addressed te callenes arisin rom dierent actors and tat te continues to address ne callenes and ne potential or uman rits protection or instance in relation to ne tecnoloies or ne istorical circumstances suc as te economic crisis. e oten takes a proressie approac to uman rits protection as can or instance be obsered in te area o disabilit. e report also sos tat te takes a proressie approac to te inolement o ciil societ as a uman rits actor.

it ilst te callenes embedded in te actors oten are o a eneral nature not applin to te in particular tis applies or instance to nondiscriminator access to te internet and social actors suc as ae and disabilit te mappin also sos a rane o issues aps and callenes tat appl in particular to te suc as te issue o coerence in eternal and internal policies is an eample. s demonstrated in apter on leal actors issues o scope and o is responsible or possible uman rits iolations also still abound.

Sit tere is reuentl a considerable ap beteen te oten proressie uman rits policies o te and te implementation o tese policies in practice. ierent actors come into pla – or instance political reliious or cultural actors – dependent on te dierent contets internal and eternal in ic te policies appl. ne eample o a actor inderin te implementation o uman rits policies is ound in apter on political actors ic eposes te problems related to democratic leitimac o te political sstem o te . noter eample o a actor in relation to ic a ap beteen polic and implementation can be obsered is te economic crisis. apter on economic actors demonstrates o beore te economic crisis uman rits protection as broadened itin te internall or instance it reard to labour market protection and social rits. e crisis created economic actors resultin

174 discrimination and in apter on ecnoloical actors ic demonstrates o nondiscriminator access to te internet is bein callened marinalisin alread ulnerable roups o indiiduals. Second and linked to te aboe te actors oten act as a doubleeded sord as ar as uman rits protection is concerned. or eample as son in apter on cultural and reliious actors reliion and culture oten include bot elements ic inder and acilitate uman rits policies in eternal actions. noter eample is ound in apter on ecnoloical actors ic demonstrates o tese actors ma enance te rits o indiiduals in teir eercise o or instance reedom o epression and access to inormation but ma also undermine te rits o ulnerable roups. ird tere is a marked oerlap beteen te uman rits ic are aected neatiel or positiel in te analsed actors. e dierent actors oten inluence te same rits enablin andor inderin uman rits protection. o take reedom o epression as an eample tis rit ma be aected b actors as dierse as social cultural and reliious tecnoloical. is calls or a sstematic olistic and consistent approac to uman rits underlinin teir indiisibilit. ourt uman rits as a alue ae inspired te ormerl since its establisment in post ar urope and continue to do so in te deelopment o instruments and policies dealin it te rits linked to te dierent actors. e uman rits proect is still in te makin and eolin in a dnamic interaction it te dierent actors described in tis report.

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