European Civil Society and Human Rights Advocacy PENNSYLVANIA STUDIES IN HUMAN RIGHTS Bert B. Lockwood, Series Editor A complete list of books in the series is available from the publisher Eu ro pean Civil Society and Human Rights Advocacy Markus Thiel UNIVERSITY OF PENNSYLVANIA PRESS PHILADELPHIA Copyright © 2017 University of Pennsylvania Press All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher. Published by University of Pennsylvania Press Philadelphia, Pennsylvania 19104-4112 www.upenn.edu/pennpress Printed in the United States of America on acid-free paper 10 9 8 7 6 5 4 3 2 1 Library of Congress Cataloging- in- Publication Data Names: Thiel, Markus, 1973 May 9– author. Title: Eu ro pean civil society and human rights advocacy / Markus Thiel. Other titles: Pennsylvania studies in human rights. Description: 1st edition. | Philadelphia: University of Pennsylvania Press, [2017] | Series: Pennsylvania studies in human rights | Includes bibliographical references and index. Identifiers: LCCN 2017017537 | ISBN 9780812249361 (hardcover) Subjects: LCSH: Eu ro pean Union. Agency for Fundamental Rights. | Civil society— European Union countries. | Human rights advocacy— European Union countries. | Human rights— European Union countries. | Civil rights— European Union countries. Classification: LCC JC599.E85 T55 2017 | DDC 323.094— dc23 LC rec ord available at https:// lccn . loc . gov / 2017017537 To Rebecca M. Salokar— a great friend, mentor, and human being This page intentionally left blank CONTENTS Preface ix Chapter 1. The Genesis and Diffusion of Internal Human Rights Policies in Europe 1 Chapter 2. Theorizing Rights Advocacy Through European CSOs 22 Chapter 3. The Fundamental Rights Agency and Platform 45 Chapter 4. Both Sides of the Story: Probing Legitimacy Through Interview Analysis 69 Chapter 5. Validating Findings Through Survey Analysis of Platform CSOs 90 Chapter 6. Social Rights and EU Market Liberalization: A Case of Neoliberal Volatility? 111 Chapter 7. The Nexus of Internal Rights and Securitized External Border Policies 132 Conclusion 157 Appendix 177 viii Contents Bibliography 179 Index 189 Acknowledgments 191 PREFACE As a so cio log i cally inspired international relations scholar, I am drawn to the analy sis of linkages between socie ties and their governments in the pro- cess of Eu ro pean integration. Given that I am also a German citizen of the Eu ro pean Union, I am interested in civil society groups that aim to advance rights provisions in Eu rope and to contest the market- driven logic of the EU. The creation of the EU Fundamental Rights Agency, in the wake of the incorporation of the Charter of Fundamental Rights into the EU’s Lisbon Treaty ten years ago, seemed to pres ent an ideal, novel case study for the examination of Eu ro pean civil society interaction with EU governance in- stitutions. Interestingly, in this proj ect both main actors, Civil Society Organ izations (CSOs) and the EU Fundamental Rights Agency, claim to act on behalf of vulnerable populations, but have to navigate orga nizational limitations and structural constraints that could relativize their purpose, with ensuing effects for their input, throughput, and output legitimacy. Approaching these agents in the research pro cess meant to remain critical vis- à- vis both, while making sure to reflect on my own positionality in the pro cess. I hope the outcomes presented here shed new light on the pursuit of human rights objectives in inventive new ways. This page intentionally left blank European Civil Society and Human Rights Advocacy This page intentionally left blank CHAPTER 1 The Genesis and Diffusion of Internal Human Rights Policies in Europe Nothing can be achieved without people, but nothing becomes permanent without institutions. —Jean Monnet, Main Architect of the EU, Memoirs, 1978 The Eu ro pean Union received the distinction of being awarded the Nobel Peace Prize in 2012, for its achievements in “the advancement of peace and reconciliation, democracy and human rights in Eu rope” (Jagland 2012). Such recognition was debated within and outside the region, in part because the Euro- crisis caused tremendous socioeconomic depression and po liti cal unrest in the region. But it also reverberated with events in Eu ro pean socie ties that called for more emphasis on the rights of citizens and the promotion of human rights in and beyond the EU’s borders, given the repercussions of the Euro- or refugee crises. More than an award for previous achievements, the prize represents a challenge for future EU action in the fields of peace- building, democ ratization, and in par tic u lar human rights. In a sign of the EU’s augmented civic emphasis, in the past few years the EU’s official guid- ing themes known as the “Eu ro pean Years,” which have a dif er ent policy focus each year, are more and more marked by a societal orientation. Examples range from the 2008 Year of Intercultural Dialogue and the 2011 Year of Volunteering to the 2013 Year of Citizens. The latter program was supported by 63 EU- level umbrella Civil Society Organ izations (CSOs), a broad umbrella term for a number of non-governmental organizations (NGOs), religious groups, and other associations relatively autonomous from government that pursue collective goals in Brussels, representing in turn 3,500 domestic 2 Chapter 1 groups in an efort to obtain “efective access to fundamental rights for all residents” (Eu ro pean Year of Citizens Alliance 2013). In contrast to these im- pressive numbers, only 8,000 individual citizens shared their views on the EU’s future policy agenda directly in a special citizens’ online consultation that year, thus relativizing the impact of direct and immediate participatory mea sures in the EU integration pro cess. In addition, the emergence of aspects of a “participatory democracy,” as enshrined in Article 11 of the EU Lisbon Treaty of 2009, challenges the established notions of representative democ- racy on which the EU is founded (Article 10), leading to a debate about the value of civil society inclusion in EU governance. More so than individual citizen involvement, or ga nized civil society has become an impor tant watch- dog and interlocutor for rights promotion in and beyond Eu rope. This book examines one attempt to link civil society with national and EU governance institutions, in par tic u lar human rights advocates with the EU Fundamental Rights Agency (FRA), in the dynamic and challenging public policy field of human rights promotion. In this area, vari ous institu- tional stakeholders such as states, EU institutions, and CSOs are involved on multiple levels of coordination, so that it is more appropriate to speak of gov- ernance than of government policy. But before an analy sis of this special relationship between CSOs and the EU rights agency can occur, we must consider the par tic u lar history, institutionalization, and constitutionaliza- tion of human rights in the EU. The following sections provide such histo- riographical information, and contextualize the development of EU human rights policies by contrasting it with that of other similarly acting Interna- tional Organ izations (IOs) in the region. The status of human rights has a special significance in Eu rope, given that the continent birthed some of the main rights statutes still in existence today, but also saw these provisions trampled by the atrocities of large- scale, some- times genocidal wars. The current development of rights policy is part of a larger pro cess of constitutionalizing human rights through the EU’s subse- quent formulation of treaties with such content. In a transnational sense, con- stitutionalization refers to an emerging normative- legal consensus in Eu rope encompassing rights, separation of powers, and democracy (Wiener 2005). This introductory chapter explores the initial construction of Eu rope’s regional rights regime, as well as the subsequent transmission of rights policies through the buildup of specialized institutions and policies in the region, Genesis and Diffusion of Internal Rights Policies 3 beginning with the establishment of the Council of Eu rope. The precursor to the Eu ro pean Union, the Eu ro pean Community, which came into existence at the same time as the Council of Eu rope, prioritized economic integration but exhibited no particularly strong internal or external policy approach toward human rights, particularly as the Council was already active in this policy area. With the augmentation in EU powers in the 1990s internally as well as in its role as global actor, eforts were increased to mainstream human rights across all EU policy areas. Moreover, it was recognized that human rights advocacy should not only be conducted through legal means, that is, court arbitration, but ought also to involve civil society groups, not least to “bring the Union closer to its citizens” (one of the main EU mottos, next to “unity in diversity”) and thus diminish the EU’s long admonished demo- cratic deficit,— its demo cratic and communicative distance from citizens and national politics. Despite the fact that the Union has expanded its rights portfolio signifi- cantly over the past two de cades, there exist a variety of related interlocking— and sometimes competing— institutions in Eu rope. Thus, while the EU cooperates with other rights bodies such as the Council of Eu rope or the Organ ization for Security and Cooperation in Eu rope (OSCE), it has to be careful not to impinge upon the po liti cal and legal prerogatives of such pre- existing organ izations, or the constitutional bound aries of the member states, when adopting its own rights policies and institutions. Building on this conceptual history, this chapter argues that an agency for the mainte- nance of fundamental rights for all citizens and residents within the EU was overdue, given the advancing significance of human rights globally, the ris- ing number of rights issues in an increasingly diverse Union, and the obliga- tion to implement the EU treaty provisions as such.