Assessing the strategic use of the EU fundamental and human rights toolbox Dr. Chiara Altafin, Veronika Haasz and Dr. Karolina Podstawa 30 June 2016 Fostering Human Rights among European Policies Large-Scale FP7 Collaborative Project GA No. 320000 1 May 2013-30 April 2017 Assessing the strategic use of the EU fundamental and human rights toolbox Work Package No. 14 – Deliverable No. 2 Due date 30 June 2016 Submission date 1 July 2016 Dissemination level PU Lead Beneficiary European Inter-University Centre for Human Rights and Democratisation Authors Dr. Chiara Altafin, Veronika Haasz, Dr. Karolina Podstawa http://www.fp7-frame.eu FRAME Deliverable No. 14.2 Acknowledgments The research leading to the results presented in this report has received funding from the European Commission's Seventh Framework Programme under the project FRAME- Fostering Human Rights Among European (external and internal) Policies (Grant Agreement Nr. 320000). The authors are particularly grateful to FRAME reviewers for their insightful comments on the earlier versions of this report as well as the participants of the conference ‘The strategic use of the EU fundamental and human rights toolbox’ which took place in Venice – Lido on 5 and 6 May 2016. Many of the ideas presented in this report would have not been there had it not been for vibrant discussions and contributions from the members of academic network of the European Inter-University Centre for Human Rights and Democratisation present at the mentioned event. All errors remain the authors’ own. The authors thankfully acknowledge the invaluable linguistic assistance of Laura Almagor. ii FRAME Deliverable No. 14.2 Executive Summary The report on ‘Assessing the strategic use of the EU fundamental and human rights toolbox’, which includes case studies on Hungary and Poland, Turkey, and Ukraine, evaluates the strategic use of the EU internal fundamental and external human rights toolbox. It builds on the previous report (FRAME Deliverable 14.1, forthcoming) which mapped the EU fundamental and human rights toolbox by identifying the concrete tools and providing different categorisations for them. The present report goes a step further and analyses what it means to use these tools in a strategic way. As objects of analysis, three case studies were chosen focusing on three crisis situations affecting human rights in EU policies: the Polish-Hungarian constitutional crisis, the refugee crisis and the Ukrainian crisis. The report starts with an introductory chapter describing the concept of ‘strategy’ and the related ‘strategic use of tools’ which the guides the analysis of the subsequent three chapters focusing on the three separate case studies. The ‘strategic use of tools’ is the use of policy tools that follows the EU strategic documents affecting human rights. Thus, the analysis of the ‘strategic use’ of the EU’s fundamental and human rights toolbox would involve effectively implementing strategic/programmatic documents. The analysis of the three case studies builds around the concept of crisis understood as an extraordinary change of circumstances. Each analysis starts off with determining the toolbox that accompanies the relevant ‘strategic document’ prior to crisis. This may be referred to as long-term strategies. Then, upon the radical change of circumstances, this long-term toolbox must be adjusted if not completely changed. In the analysis offered by the three case studies, an attempt is made to determine whether the long-term tools have been implemented and what was the impact of the crisis on the use of tools. The first case study of the report analyses the strategic use of the recently introduced ‘Rule of Law Framework’ (RoL Framework) addressing the internal violations of the values of the European Union by Member States. The constitutional crisis which broke out first in Hungary, and more recently in Poland, and the EU’s responses thereto gave a good opportunity to examine and evaluate whether this particular tool in connection with others is capable of making a difference. By operating fundamental rights safeguard procedures, the EU’s strategic objective is to protect the common fundamental values established by Article 2 TEU. So far, the protection of EU values has been guaranteed through existing mechanisms, such as Article 7 TEU and Article 258, 259, and 260 TFEU procedures, accompanied by remedies before the CJEU and the ECtHR. Nevertheless, the EU is reluctant to activate especially the so called ‘nuclear option’ of Article 7 TEU. The non- or rare use of the above mechanisms raises the question whether the re-thinking and/or a more strategic use of these existing tools is needed, or whether the toolbox needs to be enriched with new instruments. Faced with the Hungarian case, the EU chose for a new instrument and developed the RoL Framework in 2014. The Hungarian situation thus provided the impulse for the adoption of the new RoL Framework, but is is on 13 January 2016 that the European Commission decided for the first time to activate the Framework in relation to the situation in Poland, more in particular regarding the questions of the powers of the Constitutional Tribunal and the management of media. It remains to be iii FRAME Deliverable No. 14.2 seen whether the RoL Framework will bring any actual change, for the procedure is currently on-going. The analysis conducted in the case study leads to the following conclusions: it is doubtful that the RoL Framework on its own is capable of bringing about change. In fact, this seems to be one of these instances where multiplication of tools, rather than exploitation to the fullest of the existing ones acts to the disadvantage of the fundamental rights toolbox as a whole. The case study emphasised also the lack of a comprehensive framework and that of preventive tools, which would help the EU to keep its Member States on the path of the three values enshrined in Article 2 TEU. The second case study deals with the EU’s response to the refugee crisis, with special regard to the EU- Turkey agreement. 2014 and 2015 have witnessed the unprecedented struggle of the European Union to provide an appropriate response to the arrival of hundreds of thousands of refugees from the areas of the Middle East (and beyond) affected by long standing conflicts. Whilst the statistics point to the fact that in fact only about 4% of the refugees displaced by the conflicts in the Middle East reached EU borders, the EU’s response seems to be not only untimely but also insufficient. The response to be adopted started a heated debate both between the governments and at the level of international organisations. Importantly, the EU’s response involved measures of internal and external policy – both of a much contested nature. The aim of this report’s contribution is to assess the modalities through which the human rights concerns have been addressed in the EU’s response to the refugee crisis and whether the corresponding tools at the EU’s disposal have been used in a strategic manner. The focus is placed on external dimension of the EU migration policy, more particularly by the EU-Turkey arrangement. The chapter concludes that these measures reflect the long standing EU approach to the management of migration and refugees in particular. The short-term crisis response (as opposed to the possible long-term implementation of migration strategies), as this report finds, ended up neglecting the human rights of persons concerned. In the EU’s response to the migration crisis, human rights are clearly the first items to be scrapped from the agenda. It seems that the refugee crisis reflects a lack of political will within the EU to hold strong to the human rights commitment but also a general lack of vision and willingness to pursue it as in the case of migration strategies which are on the table since the early 2000s. The third case study of the report discusses the EU’s actions in relation to the crisis in Ukraine. The challenges that Ukraine has faced over the last three years have generated a crisis impacting its internal political and economic stability as well as the peace, stability and security in Europe. A deteriorating human rights situation along with serious humanitarian implications characterizes the unstable Ukrainian context. The human rights at stake have basically been those affected by either the events in Kyiv from November 2013 to February 2014 and by subsequent developments in Ukraine which led up to the illegal annexation and occupation of the Crimean peninsula by the Russian Federation as well as the armed conflict affecting parts of the Donetsk and Lugansk regions. In addition, the human rights at stake concern the standards to be promoted and enhanced in Ukraine more generally, in line with the existing long-term domestic reforms. The multiple repercussions of this unstable context for the evolving relations between the EU and Ukraine entail the necessity to address the effects of the crisis on the existing body of EU human rights related policies in its external action. In this vein, the evolving crisis situation in Ukraine and the EU’s responses thereto provided a iv FRAME Deliverable No. 14.2 good opportunity to investigate and assess the complementary use of tools at its disposal to foster human rights and democracy throughout all its external actions. The aim of this contribution is to evaluate whether the EU has strategically used its human rights policy tools to face the concrete crisis situation in Ukraine, either by taking a proactive stance or a reactive stance, in line with the programmatic policy documents that determine long-term EU objectives, specific priorities, and short-term actions in this policy area. The current EU engagement in Ukraine is analysed in view of the evolution of the EU-Ukraine relations within the Eastern Partnership and its main tool for bringing them closer together, namely the Association Agreement signed in 2014.