54 The EU as an External Human Rights Actor Sybilla Fries and Allan Rosas* The EU and human rights: general considerations European integration started off during the 1950s as an economic project, centred around the three Communities, the Coal and Steel Community (1952), the European Economic Community – EEC (1957) and the European Atomic Energy Community – Euratom (1957). In the external relations of these Communities, the focus was on international trade and commerce, which became a matter of exclusive Community competence, replacing gradually the former competence of the Member States to con- clude trade agreements.1 With the European Single Act (1987), the establishment of the European Union (EU) and the European Community (EC, replacing the EEC) in 1992 and subsequent modi- fications to the EU and EC treaties,2 the European integration agenda has broadened considerably and today covers in one form or another practically all areas of human activity, including a common defence policy. The external relations of the EU3 have un- * Sybilla Fries is First Secretary/Legal Officer of the WTO Section of the Permanent Delega- tion of the European Commission to the International Organisations in Geneva; Allan Rosas is Judge of the European Court of Justice. Disclaimer: This chapter was written in December 2006 and does not reflect the changes that have taken place thereafter. 1 See in particular Opinion 1/75 delivered by the European Court of Justice on an Understand- ing on a Local Cost Standard, ECR 1355 (1975). On EC external competence in general, see e.g. P. Eckhout, External Relations of the European Union: Legal and Constitutional Foundations (Oxford University Press, 2004). 2 The Treaty of Amsterdam (1997, entered into force in 1999) and the Treaty of Nice (2001, entered into force in 2003). 3 In the following, we shall use the term EU as an overarching term, covering both the two Communities (the EC and Euratom), regulated by the “First Pillar” of the EU, and Titles V (CFSP or the “Second Pillar”) and VI (Police and Judicial Cooperation in Criminal Matters or the “Third Pillar”), of the EU Treaty. It should be noted that the EU Treaty contains a number of provisions (notably the Common Provisions or Articles 1–7 and the Final Provi- sions or Articles 46–53) which govern all three Pillars. Gudmundur Alfredsson et al. (eds.), International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller. 2nd rev. edn. Copyright Koninklijke Brill NV. Printed in The Netherlands. ISBN 978 90 04 16236 5 pp. 591-604. 592 Sybilla Fries and Allan Rosas dergone a similar development, although the integration intensity in this respect varies greatly, ranging from an exclusive Community competence in matters of international trade regulated by Article 133 of the EC Treaty to a co-operation framework of a more intergovernmental nature in matters of security and defence policy regulated by Title V of the EU Treaty (a Common Foreign and Security Policy – CFSP, or the “Second Pillar” of the EU). While human rights entered into the picture first in the form of fundamental rights, recognised since 1969 by the European Court of Justice as general principles of Community law and restraining the activities of the EU institutions and the Member States, they have later become an important part of EU external relations as well.4 In EU terminology, fundamental rights refer to the internal protection of fundamental rights as general principles of Community law and are thus to be seen in a constitutional context, while human rights (including the expression human rights and fundamental freedoms, which appears also in the UN Charter) normally refer to the protection and promotion of human rights in the context of EU external relations. These developments have also been reflected in the text of the EU and EC treaties. According to Article 6 of the EU Treaty, the Union “is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States” (paragraph 1) and it “shall respect fundamental rights”, as guaranteed by the European Convention on Human Rights (ECHR) and as they result from the constitutional traditions common to the Member States, as general principles of Community law (paragraph 2). More specifi- cally in the field of external relations, Articles 177 and 181a of the EC Treaty stipulate that Community policies in the area of development cooperation and in the area of eco- nomic, financial and technical cooperation with third countries in general shall contrib- ute to the “general objective of developing and consolidating democracy and the rule of law” and the objective of “respecting human rights and fundamental freedoms”. In the same vein, Article 11 of the EU Treaty provides that one of the objectives of the CFSP is to “develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms”. Especially before the addition of these clauses to the EC and EU treaties, there was disagreement as to whether, and to what extent, human rights were part of the poli- cies and activities that the Communities could lawfully promote and undertake. One of the most contentious issues was whether the EC could adhere to the ECHR. The EU Council asked for an opinion of the Court of Justice of the European Communities (European Court of Justice – ECJ), and in 1996 the Court, in Opinion 2/94, held that as Community law stood at that time, the EC had no competence to accede.5 This Opinion 4 See e.g. D. Napoli, ‘The European Union’s Foreign Policy and Human Rights’, in N. Neuwahl and A. Rosas (eds), The European Union and Human Rights (Martinus Nijhoff, Dordrecht, 1995) pp. 297–312; B. Brandtner and A. Rosas, ‘Human Rights and the External Relations of the European Community: An Analysis of Doctrine and Practice’, 9 European Journal of International Law (1998) pp. 468–490. 5 Opinion 2/94, European Convention on Human Rights, 1996, ECR I-1759..