Abstract
This article explores whether the Global Strategy for the EU’s Foreign and Security Policy adds new significance to the human rights commitment spelled out in EU Treaties and elaborated in other sectoral, strategic documents. In particular, it investigates whether the Strategy’s take on human rights continues or complements the Union’s earlier approach in the field or prioritises them in the Union’s activities. The article commences with an identification of the modalities through which the new Strategy voices human rights both as values and objectives in EU external policies. This is done against the background of coherence and resilience as organising concepts of the Union’s external action and the Global Strategy itself. It goes on to draw from our research findings of three case studies as focused on the EU human rights and rule of law failure at home (Poland and Hungary), at its borders (in relation to migration), and in its closest vicinity (Ukraine). These serve as the background for the analysis of how the pursuit of human rights objectives is continued, complemented or prioritised against the background of and with the use of the two foundational concepts. It is contended that coherence and resilience advance (if at times modestly) the existing EU human rights agenda, continuing earlier approaches (for example, ensuring a comprehensive human rights approach to conflict and crisis) or complementing them (for example, using and investing in all instruments aimed at conflict prevention, management, resolution and stabilisation; connecting the internal and external spheres and policies). The migration policy remains a problematic one, as the implementation of the rhetorical commitment to the prioritisation of human rights does not stand trial with the general atmosphere in European and world politics.
Introduction
The long awaited document ‘Shared Vision, Common Action: Stronger Europe – A Global Strategy for the European Union’s Foreign and Security Policy’ (EUGS), elaborated in collaboration with a vast range of stakeholders, was presented to the broad public in June 2016. Overshadowed by the Brexit referendum of 23 June 2016, it evoked at first modest reactions. 1 Conceived of as the descendent of the EU 2003 Solana’s Security Strategy, 2 the EUGS has been repeatedly analysed from the perspective of its projection of the EU’s role in the future of world relations. 3 Its position vis-à-vis the human rights commitment (as well as competences) of the EU has not been so far analysed. 4
The EU has developed, indeed, a unique commitment to human rights, culminating with the Lisbon Treaty, which conferred legally binding force on the Charter of Fundamental Rights and which listed human rights among the Union’s foundational values. 5 In the same Treaty, human rights framed the Union’s external action as a founding value to be upheld and promoted, as a guiding principle, and as an objective to be consolidated and supported when defining and implementing its external policies and actions. 6 After great effort on the part of the High Representative of the Union for Foreign Affairs and Security Policy (HR) and the European External Action Service (EEAS) to present the comprehensive framework for the EU’s external human rights policy in 2012, 7 one would imagine that the new Global Strategy would provide the answer as to the position of human rights both as values and objectives of EU external action vis-à-vis other interests.
This paper explores whether the EUGS adds new significance to the human rights commitment spelled out in the EU Treaties and elaborated in other sectoral, strategic documents. In particular, it investigates whether the pursuit of human rights objectives (implicitly or explicitly) in the new Strategy continues or complements the Union’s earlier approach in the field or prioritises them in the Union’s activities. Accordingly, practical implications for EU human rights related policies in the next decade are also explored. It will be up to the EUGS Action Plans (by now awaited) to determine the specific measures through which the EU will engage with such commitment, making use of its competences in the area of human rights.
One should consider that both the entire EUGS as well as its human rights dimension have been corroborated in the specific context of the EU being challenged on multiple fronts. Both from within (for example, the Hungarian and Polish constitutional crises and the Brexit campaign, which ended with a negative result hard to anticipate at the time of the publication of the EUGS) and from without (for example, the migration crisis, the conflict between Ukraine and Russia, the rise of ISIS, and the failure of the Arab Spring). The ensuing crises can be branded, inter alia, as human rights ones, since they challenge the human rights core of the EU as a construct and its policies. The mentioned crises constitute a centrepiece of the new Strategy; in fact, one could argue that the EUGS, instead of projecting the EU’s role in the future, portrays more accurately the present moment. The authors have voiced their response in the identification of two concepts that echo throughout the document: coherence and resilience, which are to underlie the EU foreign policy. They will be screened from the point of view of their utility for the human rights cause.
The analysis will progress in two steps. First, the modalities through which the EUGS voices human rights both as values and objectives in EU external policies are identified. This is done against the background of coherence and resilience as organising concepts of the Union’s external action and the Global Strategy itself. The second part of the paper draws from our research findings of three case studies as focused on the EU human rights and rule of law failure at home (Poland and Hungary), at its borders (in relation to asylum policy), and in its closest vicinity (Ukraine). 8 These will serve as the background for the analysis of how the pursuit of human rights objectives is continued, complemented or prioritised against the background of and with the use of the two underlying concepts.
Is the EUGS also a human rights strategy?
A single all-encompassing research question guides the considerations of this section of the research paper: Is the 2016 Global Strategy for the EU’s Foreign and Security Policy also a human rights strategy? In other words, is the EU offering a path (in Mogherini’s words: ‘to think strategically, share a vision and act together’) 9 that inter alia focuses on human rights and follows up the route traced by programmatic documents specifically elaborated in the field? Do human rights take a priority vis-à-vis other policy concerns? Or are the ‘old days’ when human rights instruments were seen as a final ‘cherry on the top of the cake’ type of consideration coming back yet again?
The EUGS results from a long reflection encouraged by the European Council Conclusions of December 2013 and coordinated by the EU’s diplomatic units, namely the Cabinet of the HR and the EEAS. It is the EU’s first strategy of the type in over a decade. In presenting the vision on the global context in which the EU will operate in the years ahead, this Strategy refers to a contested, composite and connected world. The shared vital interests to be promoted are identified as peace and security, prosperity, democracy and a rule-based global order. Importantly, human rights are never deemed as an organising category, but rather as objectives to be pursued in the context of other areas. The EUGS recalls the relevance of the Union’s foundational values on several occasions, also stating that a stronger Union is ‘[g]rounded in the values enshrined in the Treaties’. 10 However, it does not reiterate explicitly Article 2 TEU (which sets out ‘human dignity, freedom, democracy, equality, the rule of law and the respect for human rights, including the rights of persons belonging to minorities’).
At the same time, ‘principled pragmatism’ is advocated as the polar star guiding the EU external action, according to a cautious and modest approach that avoids unachievable expectations, balancing idealism with Realpolitik. This approach is indeed anchored in four principles: unity, engagement, responsibility and partnership. 11 Besides reflecting the potential tensions between values and interests, this realist approach reflects the EU’s power relations in the world and the difficulty in choosing between policy interests and priorities. 12 Furthermore, the new Strategy bases its foundations on the two concepts of coherence and resilience.
The underlying concepts of coherence and resilience in service of the EU human rights
In the EUGS the concepts of coherence and resilience act as connectors between both the content and modalities of EU action. The efforts to establish coherence in the Union have been a long-standing one. The appearance of the term in the EUGS echoes not only academic debates, 13 but also the legal obligation stemming from Article 11(3) and Article 13(1), as well as Article 21(3) TEU. Resilience, however, is a relatively new notion in EU policy documents. 14 It brings some fresh air to a dated discussion of the EU presence on international stage or, similarly, of the types of power at its disposal, 15 possibly indicating a positive change in the execution of its internal obligations and undertaking where ‘principled pragmatism’ can actually be realised.
‘Resilience’ is defined as ‘the ability of States and societies to reform, thus withstanding and recovering from internal and external crisis’ 16 and features in the document more than 40 times. The EUGS also specifies that ‘a resilient society featuring democracy, trust in institutions and sustainable development lies at the heart of a resilient State’. 17 On the one hand, this broad concept is applied to the Member States (‘[t]he EU will foster the resilience of its democracies’ 18 ) and to third States. On the other hand, societal resilience is nurtured by deepening the EU’s relations with civil society and intensifying the ‘work on education, culture and youth to foster pluralism, coexistence and respect’. 19 Building and enhancing resilience at home and abroad is meant to include improving good governance and accountability, as well as creating a better space for civil society to act.
Critically, the dynamic conception of resilience would require some refinement and elucidation in the implementation of the EUGS in general and in its implications for EU human rights related policies in particular. A resilience agenda would imply to articulate how reinforcing the capacities of governments and societies to deal with rights-sensitive challenges that are already tangible (such as weaknesses in the checks and balances of constitutional systems, threats to the independence of the judiciary, growth of inequalities, poverty, social exclusion, human vulnerability, lack of job opportunities, refugees’ influx, xenophobia, radicalisation processes). Yet, this aspect might be connected with the origins of the concept itself and the fact that it has been used in humanitarian protection context. Just as the rights-based approach to development apparently required translation into the development jargon and processes, if it is to add value, resilience will need to be accommodated by the European human rights policy makers, especially with due regard given to the social and economic rights shattered as the result of the post-2008 austerity measures.
Attaining coherence, on the other hand, is a clearly determined objective in the EU’s foreign and security policy (in line with Article 21(3) TEU) and the insurance of the consistency (the Treaty uses the term consistency and coherence indeterminately) of the Union’s external action lies with the High Representative. The EUGS takes the commitment to ensure coherence seriously and focuses both on the horizontal coherence across EU foreign policies (also between the internal and external ones) and on the vertical coherence between the EU and the Member States. 20
The concept of coherence runs through the five priorities of the Global Strategy. All of them are supposed to be pursued ‘in a coherent and coordinated way’ by mobilising EU’s networks, its economic weight and all the tools at its disposal. 21 To this end, a collective investment in its credibility and responsiveness along with a ‘more joined-up’ external action are expressly required. The EUGS provides further consideration of these three ambitious aspects, recommending certain directions for the evolution of existing policies as well as demanding new strands along the lines of the five priorities. In doing so, the text makes (direct or indirect) references to human rights too.
In particular, a ‘credible Union’ hinges on its own unity, achievements, enduring power of attraction, the effectiveness and consistency of its policies, and adherence to its values. However, investing in the EU’s credibility is called for by emphasising increased security and defence capabilities. 22 In this sense, unfortunately the EUGS does not put the EU’s credibility in close connection with possible advancements of its human rights related policies.
Conversely, a ‘more responsive Union’ entails a change in diplomacy (via more reactive diplomatic tools), a more rapid and effective Common Security and Defence Policy (CSDP), a more flexible development policy (also aligned to the aforementioned strategic priorities), and a strong knowledge base underpinning the external action. 23 Concerning the latter, ‘deeper situational awareness’ is called for devising targeted approaches to resilience, conflict prevention and resolution. On the one hand, the prescribed investment in the EEAS entails providing EU delegations with due expertise, investing in the EU Conflict Early Warning System, rendering all EU external engagement conflict- and rights-sensitive. On the other hand, the prescribed investment in better coordination across institutions and Member States entails ‘greater information sharing and joint reporting, analysis and response planning’ between embassies, delegations Commission services, EU Special Representatives and CSDP missions, as well as ‘cross-fertilisation’ with international and regional organisations, civil society, the private sector, academia and think tanks.
Finally, a ‘more joined-up’ external action is seen as lying at the heart of a coherent role of the EU. This entails enhancing earlier efforts, namely institutional innovations (for example, the HR and the EEAS) as well as policy innovations (for example, the ‘comprehensive approach to conflicts and crises’ and ‘joint programming in development’). Economic diplomacy, cultural diplomacy and energy diplomacy represent new fields identified in this context. Significantly, the EUGS advocates the joined-up approach to the internal and external dimensions of EU policies. This is seen as required by the migration phenomenon. 24 It is similarly called in the EU security and development policies, 25 thus attempting to ease tensions between them. The strengthening of the internal/external nexus is also addressed for issues such as counter-terrorism, counter-violent extremism, and cyber security. 26
Further references to coherence and resilience are made in the EUGS and the subsequent parts of this article will refer to them. The purpose of this section was simply to pinpoint the two underlying concepts so as to observe subsequently whether and how they affect the fulfilment of human rights objectives in the EU external policies.
The human rights dimension of the EUGS
The EUGS clearly is not a human rights strategy per se. Indeed, precisely because it is a global strategy for the EU’s foreign and security policy it frames principles, interests and priorities of the EU through global lenses addressing manifold concerns in an ever more demanding (geo)political context. 27 However, a certain consciousness about the need to advance the EU human rights related policies is preserved by the new document with a general reference to the championing of the indivisibility and universality of human rights in the context of the principle of responsibility guiding the Union’s external action. 28 The identified five priorities also deserve attention in this regard. Now each of them will be analysed in the light of the human rights objectives implicitly or explicitly proclaimed by them.
The first strategic priority of the EUGS is
In this regard, Europe’s collective security is linked not only to the EU’s ability to protect its own territory, respond to external crises, and assist in developing its partners’ security and defence capacities (management and capacity-building), but also to the EU’s ability to assist in protecting Member States upon their request, and its institutions. 30 This is meant to live up to the EU’s commitments to mutual assistance and solidarity, also reflecting an external and internal dimension of the challenges.
External border management is explicitly mentioned too. Significantly, the EUGS foresees the possibility that the CSDP missions and operations work together with the European Border and Coast Guard and EU specialised agencies ‘to enhance border protection and maritime security in order to save more lives, fight cross-border crime and disrupt smuggling networks’. 31
Concerning the challenge of terrorism, the EUGS emphasizes the importance of deepening work on education, communication, culture, youth and sport to counter violent extremism. This is also the only instance where human rights appear in the security discourse, highlighting the crucial antidote for the EU to ‘live up to its values internally and externally’. 32 Developing human rights-compliant anti-terrorism cooperation with Turkey, the Western Balkans, the Middle East, and North Africa is expressly mentioned, alongside sharing best practices and developing joint programmes on countering radicalisation and violent extremism.
The second strategic priority of the EUGS concerns
Regarding the enlargement policy, a fair and strict conditionality is considered ‘an irreplaceable tool’ to improve resilience within the States concerned, guaranteeing that democratisation and modernisation advance along the lines of the accession criteria. 34 On the one side, the EU policy towards the candidate countries is aimed at focusing on basic requirements for membership, scrutiny of reforms, and feedback from the European Commission, Member States and also local civil societies. On the other side, ‘concrete benefits’ delivered from the EU assistance should include ‘cooperation on counter-terrorism, security sector reform, migration, infrastructure, energy and climate’ so as to improve citizens’ wellbeing. However, in the case of Turkey and the Western Balkans resilience is not taken for granted: it remains challenging for the EU to promote therein rule of law, political reform, economic convergence and sectoral cooperation.
In relation to EU neighbours, the pursuit of resilience is deemed to ‘spur transformation’ in countries such as Tunisia and Georgia, whose prosperity and democracy would resonate across their own regions. As for the EaP, resilience is seen to pass through the EU’s support in implementing association agreements as well as deepening tailor-made partnerships, but also through the EU’s enhancement of ‘societal links’ via mobility, educational and cultural exchanges, research cooperation and civil society platforms. 35
In advocating ‘a multifaceted approach to resilience’ in EU surrounding regions, the EUGS elaborates more explicitly on its basic connection with the promotion and protection of human rights. This is done with the use of tools focused on ‘dialogue’ and ‘support’ as well as ‘long-term-engagement’. Significantly, the choice of ‘locally owned rights-based approaches to the reform of the justice, security and defence sectors’ is undertaken. The support to fragile States in building capacities, possibly via tailor-made policies boosting inclusive and accountable governments, is referred to as well. In particular, development, diplomacy and CSDP are considered three functional areas through which to guarantee that security sector reform efforts will allow and strengthen the EU’s partners’ capacities to provide ‘security within the rule of law’. 36
Focusing on the migration phenomenon, in relation to the EU’s work on resilience the EUGS addresses its intention to take a special focus on origin and transit countries of migrants and refugees. 37 This is articulated by identifying the following: (1) stepping up the EU’s humanitarian efforts therein and focusing on education, women and children; (2) developing common and tailor-made approaches to migration featuring development, diplomacy, mobility, legal migration, border management, readmission and return; (3) working with countries of origin to address and prevent the root causes of displacement, manage migration, and fight trans-border crime; (4) supporting transit countries by improving reception and asylum capacities, and by working on migrants’ education, vocational training and livelihood opportunities; and (5) stemming irregular flows by making returns more effective and by ensuring regular channels for human mobility. In this regard, a two-fold intention is expressed: first, ‘enhancing and implementing existing legal and circular channels for migration’; and second, ‘working on a more effective common European asylum system which upholds the right to seek asylum by ensuring the safe, regulated and legal arrival of refugees seeking international protection in the EU’. Concurrently, the objective to work with EU’s international partners ‘to ensure shared global responsibilities and solidarity’ is considered, particularly establishing effective partnerships on migration management with UN agencies, regional organisations, emerging players, civil society and local communities.
It is noteworthy that in discussing resilience human rights concerns give way to the focus on rule of law and democracy. For instance, in relation to the enlargement policy the identified challenge focuses on promoting the political reform and rule of law. Instead, in the surrounding regions, human rights are to be protected as a tool for eliminating repression that ‘suffocates outlets of discontent and marginalises communities’. 38 When discussing the migration policy, however, the EUGS does not pay particular attention to human rights compliant management of migration flows; instead, it focuses on the access to asylum conceived of as the right that puts a spotlight on the actions of the border regions. In this context the EUGS’s rigidity in applying resilience across internal and external policies falters. There is no mention of the internal grievances on the application of the Dublin Regulation, related human rights violations, and the internal political deadlock concerning the re-settlement of refugees within the EU 39 (not to mention the failure on the EU side to implement the EU-Turkey deal 40 ).
The third strategic priority of the EUGS concerns
First, ‘pre-emptive peace-building’ and ‘diplomacy’ are considered good tools to monitor root causes of conflicts, such as human rights violations, inequality and resource stress. Significantly, the link between ‘early warning’ and ‘early action’ is acknowledged by formulating basic implications: (1) regular reporting and proposals to the European Council; (2) engagement in preventive diplomacy and mediation through EU Delegations and Special Representatives; and (3) deepening partnerships with civil society. Indeed, the advocated ‘political culture of acting sooner in response to the risk of violent conflict’ 42 has represented a critical missing aspect in several cases in which the EU has been involved and human rights implications have been serious. 43
Second, the security dimension of conflicts is directly emphasised. The aim is to make European security and defence well set to protect human lives (especially civilians) and to build peace. Accordingly, rapid and decisive responses to crises are due. Security is to be provided in contexts of transitional governments, but also supporting local ceasefires and paving way for capacity building. Concurrently, ‘a coherent use of internal and external policies’ is deemed the key tool to counter insecurity stemming from such conflicts. Concerning the stabilisation dimension, the prompt delivery of basic services and security to local populations is properly stressed, also expressing the EU’s intention to ‘bridge gaps’ in its response ‘between an end of violence and long-term recovery’ and to develop the dual (security and development) nature of its engagement. 44 Implicitly, this is likely to support also human rights friendly initiatives.
Third, the EU’s support to ‘conflict settlement’ passes through fostering ‘inclusive governance at all levels’ via dedicated financial instruments, CSPD, and development, combining top-down and bottom-up efforts nurturing ‘sustainable statehood rooted in local agency’. Importantly, working with local municipalities and civil society also contributes to channel the EU’s support to those championing human security and reconciliation. Mediation, facilitation as well as cultural, scientific and economic diplomacy are identified as the best tools in the conflict setting. 45
Further potential to advance human rights in such contexts derives from the EU’s intention to foster the ‘political economy of peace’, with more synergies between humanitarian and development assistance, and with more support to provide basic goods, health, education, and legitimate employment. Trade and development are deemed to underpin long-term peace-building. 46 Besides diplomacy, restrictive measures are also considered as key tools for deterrence, conflict prevention and resolution, although ‘smart sanctions’ are required to be ‘calibrated and monitored to support the legitimate economy and avoid harming local societies’. 47 The further call for modernising the EU policy on export control for dual-use goods and for fighting the illegal trafficking of natural resources and cultural goods is also very adequate in this context.
The fourth strategic priority of the EUGS concerns
In all the geographic contexts respect for human rights is highlighted as one value or objective against many interests enumerated in one breath. Here the EU relationship with Asia is emblematic. 51 The EUGS calls to make a better use of existing regional platforms investing in cooperative relationships ‘to spur global responsibilities’. Promotion or dialogue are implied, but this fourth strategic priority would require some clarification in its implications for the EU’s role in gathering support for human rights in different policy areas as opposed to other legitimate interests.
The fifth strategic priority of the EUGS consists in
In translating its vision into action, the EUGS puts a final emphasis on human rights mainstreaming: we will systematically mainstream human rights and gender issues across policy sectors and institutions, as well as foster closer coordination regarding digital matters. Greater awareness and expertise on such issues is needed within the EEAS and the Commission. Better coordination between institutions would also add consistency and spread best practices, helping us build a stronger Union and a more resilient, peaceful and sustainable world.
53
Assessing the human rights dimension of the EUGS – continuation, complementarity or prioritisation?
So far the EUGS has been reviewed from the point of view of the extent to which it addresses human rights concerns. It would be unjust to state that the grand Strategy does not take into consideration the EU’s commitment to values. Yet, one cannot help but notice the largely decorative function such invocations fulfil. Despite addressing the most pressing issues such as migration or the conflict in Ukraine and the relationship with Russia, the EUGS is very superficial on what it means for the EU to truly engage with human rights. At the same time, it is the most important Strategy for the EU external relations dealing with the vast number of issues. It cannot be expected to tackle them all in great detail. Yet, values in general, and human rights in particular, are different. It may be worth recalling that, with reference to human rights, Mogherini stated convincingly and strongly:
‘Human rights will be one of my overarching priorities and I intend to use them as a compass in all my relations within EU Institutions, as well as with third countries, international organizations and civil society.’ 54
This statement, coupled with the EU’s general commitment to mainstreaming human rights, as well as the (r)evolutionary changes brought about by the rights-based approach to development and human rights conscious impact assessments of trade policy, 55 would imply that the position of human rights is different than that of other interests and objectives undertaken by the Union. They imply that also the EU action must be checked against the fulfilment of the commitment to human rights (and to the rule of law and democracy). If human rights are to offer the peculiar substantive form of ‘checks and balances’ of both the form and content of other policy fields, their point of view should be adopted when defining other priorities. This is not what the EUGS does – at least not in an open manner. Here and there one can observe the change (especially in connection to the discussion on resilience). Yet, at other times attention granted to human rights seems what it had been at the times of the Solana’s security strategy, despite a series of human rights crises which (as one would hope) have taught the EU about the importance of the conscientious policy making and implementation.
In view of the above, the third part of the paper engages with this aspect of the human rights dimension of the EUGS. In particular, against the background of the most pressing human rights challenges within and without the EU borders, the relationship between the EUGS and other strategic documents is analysed to determine whether its take on human rights continues or complements the earlier approach of the EU in the field, or actually prioritises them in the activities of the EU. In doing so, it will be also anticipated whether the EU should adapt the existing strategic documents 56 to the new vision. Here, as it seems, the focus on the two ground concepts of the EUGS (coherence and resilience) constitute the largest change of a paradigm and thus will be adopted as an organising feature for the remainder of our analysis. It must be emphasised that this approach leaves out another aspect of the framing of the EU human rights policy against other policy fields: the capacity to respond to the imminent problems posed by the broadly understood crisis situations. The below paragraphs contain, therefore, a reflection on the extent to which the EUGS foresees short-term response to human rights violations resulting from a type of crisis. It is argued that the answer to this problem lies again in the concepts of coherence and resilience.
Sampling internal resilience and internal-external coherence: The Hungarian and the Polish crises
Possibly, the most striking aspect of the EUGS is the attention to the internal affairs along with the importance of joining up internal and external policies. Definitely, the link between internal and external policies is a natural and understandable phenomenon, since the EU’s internal position is the context from which its external strategy must emerge.
The Union’s shared values may be considered as connecting links between the internal and external spheres. Several examples reflect their cohesion. Human rights clauses in agreements ‘create obligations both for third countries and for the EU and its Member States’. 57 The Working Party on Fundamental Rights, Citizens Rights and Free Movement of Persons (FREMP) and the Working Party on Human Rights (COHOM) of the Council of the EU have been increasing their cooperation regarding enhancing coherence and consistency between the EU’s external strategies and its internal reality. 58
And yet, the link between internal and external policies is often questioned, and the two areas remain considered as largely separated both by the policy makers (to a certain extent for obvious institutional reasons). The EUGS, which can be considered a traditional external policy tool, breaks with this approach and offers intervention in the internal sphere as complementing the existing EU legal and policy toolbox. In particular, it is noteworthy that the objective interdependency of internal and external policies, in the context of the human rights policy, takes on a new significance in the EUGS, which states strongly that: ‘[o]ur interests and values go hand in hand. We have an interest in promoting our values in the world. At the same time, our fundamental values are embedded in our interests.’ 59 And so: ‘To safeguard the quality of our democracies, we will respect domestic, European and international law across all spheres, from migration and asylum to energy, counter-terrorism and trade. Remaining true to our values is a matter of law as well as of ethics and identity. 60
All these statements can be found in the introductory part, where the ‘vital interests’ are discussed. The focus is on the internal situation of the EU in the absence of decisive steps from the EU leadership to force the ‘black sheep’ among the Member States to reflect on their actions and deliver on human rights. The EUGS, in fact, echoes that the Union is based on values shared by all Member States. Their importance is recalled on several occasions in the Strategy, which sees a stronger EU as ‘[g]rounded in the values enshrined in the, Treaties’ 61 and highlights they ‘have inspired its creation and development’. 62 Importantly, it also emphasises that ‘[t]he politics of fear challenges European values and the European way of life’ 63 and that living up to these values internally and externally ‘is the strongest antidote we have against violent extremism’. 64 Certainly, nowadays across Member States political changes capable of endangering such European values are spreading. From the EUGS’s wording, however, it is clear that the EU’s credibility in evoking the foundational values is measured also on its ability to respond to constitutional crisis situations that jeopardise democracy, human rights, and the rule of law.
These three values play an important role in the EU enlargement policy. The EUGS repeats the main rule, namely that ‘[a]ny European State which respects and promotes the values enshrined in our Treaties may apply to become a Member of the Union’. 65 This clearly echoes Article 49 TEU, any country wishing to join the EU must sign up to the values referred to in Article 2. Hence, ‘human dignity, freedom, democracy, equality, the rule of law, and the respect for fundamental and human rights’ are EU constitutional standards and their respect and promotion are a precondition for membership in the Union.
The stability of institutions guaranteeing such standards is not only one of the so called Copenhagen criteria, but also a pre-accession conditionality, since satisfying this criterion is a requirement for launching the EU accession negotiations. At the moment, the EU foundational values (in particular fundamental rights) are the cornerstone of the integration process. What happens, however, when the accession is complete? No similar method exists to measure adherence to these constitutional standards after accession. Recent developments in Hungary and Poland showed that the ‘Copenhagen dilemma’ is not a theoretical one. 66 If the Member States and the EU itself still agree that these values are still shared and that the constitutional traditions are still common, as Article 6(3) TEU declares, there is not only a need to establish instruments and procedures ensuring that all actions of Member States and policies of EU institutions are in line with such values, but also a duty to do so. 67
According to the EUGS, democracy is one of the EU citizens’ vital interests underpinning the EU external action. It emphasises that ‘[l]iving up consistently to our values internally will determine our external credibility and influence’. 68 This expressed connection between the internal and external spheres is important. Fostering democracies in the Member States and promoting the EU values in the world are interdependent and interrelated. The EU has crucial interests in maintaining well-functioning democracies in its Member States. Not only for its better internal functioning – that is partly based on the members’ mutual trust in each other’s institutions – but for being a credible human rights actor towards third countries. 69 In other words, upholding democracy in the Member States is a prerequisite for credible external actions. And so, how does the EUGS address the upholding of shared values in the Member States vis-à-vis other documents that deal with this matter?
Our findings on the constitutional crises in Hungary and Poland and the EU’s responses thereto showed that the Treaty-based legal instruments, with the exception of the infringement procedure (whose applicability is specific and limited), have not been activated (this observation applies especially to Article 7 TEU). 70 Apparently, policy instruments could ensure neither swift, nor effective intervention. This is due to a number of factors: (i) the peculiar position of fundamental rights in relation to the conferred powers of the EU not permitting the latter to act solely on the basis of the fundamental rights provisions enshrined in the Charter of Fundamental Rights; (ii) the fear of the Member States to be next in the row; and finally (iii) the assumption that the values had been shared among them indeed prior to the accession. Importantly, these three factors are reflected in the fact that the EU does not possess an internal fundamental rights strategy (and so the external one points to the most contagious problems in the EU internal relations). 71 However, the lack of strategy does not necessarily mean that the EU has not been undertaking strategic reflection on the basis of the values internally.
At the moment, Article 7 TEU provides the legal basis for an EU action against a Member State in breach of Article 2 TEU. In case of an emerging systematic threat to the rule of law, as a half-way solution, the European Commission adopted the new Rule of Law Framework (RoL Framework) that establishes the modalities of how it shall react in such a situation. 72 An important feature of the RoL Framework (as well as of the recent ‘EU mechanism on democracy, rule of law and fundamental rights’ 73 ) is the preventive character owing to the monitoring nature by regular assessment of the compliance of Member States with EU common values and respect for fundamental rights. Nevertheless, these tools are deemed too weak due to their soft law and dialogue based character. According to the EUGS, the EU may consider that soft power is not enough. 74 The Council of the EU has also adopted its own rule of law initiative in the form of an annual political dialogue among all Member States within the Council ‘to promote and safeguard the rule of law in the framework of the Treaties’. 75
Apparently, the challenging events in the Member States have made the EU aware of the need of an enhanced role and action in the promotion and protection of fundamental and human rights. Nevertheless, the history shows the EU responsive manner of giving short-term crisis responses and then adopting long-term strategies. 76 Undoubtedly, it is difficult to foresee crisis situations. However, the EU’s reactive attitude is witnessed even when it has already experienced similar crises, see for example the Hungarian and the Polish constitutional crises. This brings us back to the requirement of consistency in the EUGS’ wording regarding actions.
In this regard, the aforementioned intention of the EU to live up consistently to its values internally deserves more attention. Acting consistently means to act ‘in every case or on every occasion; invariably’. 77 The constitutional crisis situations in Hungary and Poland and the EU’s reaction thereto have shown that the EU’s short-term crisis response may vary from case to case. Several fundamental and human rights tools are at its disposal and, based on different considerations, it chooses to use one or the other – even in the case of such crises that are very similar to each other. One may say that this is the right way to respond to crisis situations. At the same time, this attitude makes the EU less predictable and clear on whether it has a long-term strategy and strategic progress. According to the EUGS, ‘[a] resilient society featuring democracy, […] lies at the heart of a resilient State’ 78 and one of the conditions of a resilient State is that society feels that it is ‘becoming better off’ and has ‘hope in the future’. 79 The EUGS also promises that ‘[t]he EU will support different paths to resilience, targeting the most acute cases of governmental, economic, societal […] fragility’. 80 In other words, the EUGS takes a step further and intends to not only deal with crisis situations but also prepare society to cope with them, and perhaps even to avoid them.
Concluding from this example, it is noteworthy that the EUGS has taken on the role of a complementary instrument to the internal ones, emphasising the missing element in the EU internal policies and its importance for the EU as an actor.
Coherent but still the odd one out: the failed attempt to prioritise human rights in the EUGS approach to migration policy
The migration policy, for obvious reasons, has accumulated broad attention in the EUGS, yet it is difficult to classify the corresponding position of human rights. Whilst it could be claimed that in general terms the migration policy (perceived necessarily as the general body of policies focused on management of migration as its vastness and nuances are beyond the scope of this paper) has been moving towards prioritisation or mainstreaming of human rights, 81 this trend is difficult to observe in the EUGS. Instead, as it seems, other concerns have preoccupied the policy makers.
First of all, yet again the coherence, resilience, and the overall effectiveness of this policy field hinge on the connection between internal and external realms. In particular, the lack of the consensus as to the internal policy measures
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pushed the Union to search for the external policy ones
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and the strong declaration in the EUGS that: (w)e must become more joined-up across internal and external policies. The migration phenomenon, for example, requires a balanced and human rights-compliant policy mix addressing the management of the flows and the structural causes. This means overcoming the fragmentation of external policies relevant to migration. In particular, we will develop stronger links between humanitarian and development efforts through joint risk analysis, and multiannual programming and financing. We will also make different external policies and instruments migration-sensitive – from diplomacy and CSDP to development and climate – and ensure their coherence with internal ones regarding border management, homeland security, asylum, employment, culture and education.
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Even though the EUGS devotes ample space to addressing the mobility problems, in fact it does not present many more developments when compared to the 2015-2019 Action Plan and the 2015 European Agenda for Migration.
The former provides for enhanced cooperation using cooperation frameworks with third countries and mobility dialogues. 88 Aside from ensuring that the human smuggling and trafficking is combated, the EU is to work towards ‘improved access to justice and health for migrants in countries of origin and transit; promote improved conditions of detention for detained migrants and alternatives to the use of detention for irregular migrant in third countries; pay particular attention in this regard to vulnerable migrants including unaccompanied minors’. 89
In the 2015 European Agenda for Migration 90 and the more recent 2016 Council Conclusions on External Aspects of Migration, 91 the rights-based approach to migration is reduced to the statement that ‘[t]he EU will continue to advocate strongly for the respect of international law, including international humanitarian law, refugee law, notably the principle of non-refoulement, and international human rights law.’
The above description of the visibility of the human rights commitment of the EU in its migration policy amounts to a picture, which, at least, can be described as disappointing. In fact, the rights-based approaches to migration, they would be difficult to find. None of the statements, be it in the EUGS or other strategic documents, echo such a shift. In fact, from this point of view the discourse of resilience is exceptionally weak if compared to the one identified as a core in other areas. If this is the case, one must conclude that the EUGS adds yet another layer to the EU’s rhetoric on migration and human rights nexus failing to actually address the actual problem – neither prioritising on the basis of the earlier experiences, nor complementing the earlier existing policy measures. At the same time, this policy area in particular illustrates the earlier observation according to which the EU strategies rather than projecting the future picture the present. Each of the described present concerns, however, has a strong human rights component. Yet, making sure that the consistent human rights guarantees are provided to the thousands arriving in Europe constitutes a vividly contagious political issue. It is clear that in these turbulent times the European Union cannot risk forcing the governments of its Member States to comply with commitments that may further destabilise the region. Or can it?
Sampling external resilience and horizontal coherence: The Ukrainian case
Among the EUGS priorities, ‘State and societal resilience’ as well as ‘an integrated approach to conflicts and crises’ clearly have potential to advance the existing framework for the EU’s external human rights policy. 92 The former priority, however, raises the basic question as to how the EU’s various (political, diplomatic, operational, financial, judicial and development aid related, and others) tools, which have been developed for human rights promotion or have contributed to it, can be better activated to increase resilience in States and societies. The latter priority echoes certain objectives and actions already defined in the 2012 EU Strategic Framework on Human Rights and Democracy along with the 2015-2019 Action Plan as well as in background policy documents. 93
In particular, the EUGS four grounds of the integrated approach to conflicts and crises (analysed above) partly reflect the third general objective of the 2015-2019 Action Plan (‘ensuring a comprehensive human rights approach to conflicts and crises’), especially in view of its sub-objectives 19-23 94 ). At the same time, the cited four grounds partly complement the existing framework for the EU’s external human rights policy in such contexts. This is especially shown by the advocated essential use of and investment in all available instruments aimed at conflict prevention, management, resolution and stabilisation, as well as by the advocated engagement with all players necessary for conflict resolution. Such approach, indeed, offers further chances to promote human rights, monitor their violations, engage in peace-building, foster human security, nurture inclusive governance, and create synergies between humanitarian and development assistance. 95
The proposed ‘integrated approach’ is then conducive to enhance resilience within the EU neighbourhood and beyond. Resilient States and societies are seen as the safest long-term investment in the EU’s security and prosperity. Such investment is way more profitable than dealing with erupted crises. Viewed this way, the EUGS presents a break from the past, or proves that certain lessons have been learnt.
Our previous research on crisis situations within and outside of the EU also established the need for more prevention and prompt action. Our case studies hardly demonstrated any examples of the strategic use of fundamental and human rights tools for preventive purposes. They show that EU tools deal with the consequences (rather than the causes) of fundamental and human rights violations. 96 Emblematically, the Ukrainian case study confirmed that the EU’s approach to the crisis and its human rights implications was too focused on the response rather than prevention. 97 In this regard, the insufficiency of EU diplomatic measures (which are effective only if followed by a strong operational action) was also highlighted. The EU has been, to a certain extent, an inapt actor due to its slow decision-making and long reaction time. Indeed, the application of EU tools within months rather than weeks constitutes a weak way to react to a serious crisis. 98 Therefore, the EUGS pushes to the right direction when it acknowledges the ‘undisputable link’ between early warning and early action and accordingly articulates some prescriptions.
Limited or no direct access to the conflict-torn territory has been (and is likely to remain in the long run) another basic issue in the Ukrainian context. Enabling systematic monitoring of the human rights situation as well as providing victims of human rights violations with legal and further assistance are basic priorities. This has arisen the need for the EU (particularly the European Parliament together with the European Council and the European Commission/EEAS) to strengthen the cooperation with those ‘interlocutors’ who are capable to conduct efficiently on-site human rights monitoring and assistance either via fact-finding missions (for example, the CoE mission that gained access to Crimea) or via continuous presence (for example, Ukrainian NGOs in Crimea). 99 In this regard, the EUGS makes a positive but slight reference in the aforementioned prescriptions concerning ‘pre-emptive peace’. 100
Importantly, the EUGS shows the Union’s intention to face the evolving crisis in Ukraine. This is clearly articulated in relation to the pursuit of the European security order. On the one hand, the non-acceptance of Russia’s illegal annexation of Crimea and the destabilization of eastern Ukraine is reiterated, in line with the demand of full respect for international law. 101 Indeed, ‘a consistent and united approach’ is seen as the cornerstone of EU policy towards Russia. On the other hand, the intention to enhance the resilience of eastern neighbours and uphold their right to determine freely their approach towards the EU is underlined. 102 However, the EUGS’s potential contribution to advance EU external action on human rights deserves further consideration in view of our previous research.
Our findings showed that, during the evolution of the Ukrainian crisis, the EU developed strong bonds with other actors of the international community (for instance, the CoE and the OSCE), seeking to exploit their established potential and supporting them through its financial instruments. As noticed above, the EUGS expresses the aim to foster cooperation with the CoE and the OSCE. The Union’s intention to reinforce ‘its contribution within and its cooperation with the OSCE as a pillar of European security’ is significant. 103 However, the role of the EU as a cooperative partner of OSCE at both levels (operational and financial) in the area of crisis management should be better defined. 104 The EUGS does not do it neither for the OSCE or the CoE.
In raising a problem of credibility and legitimacy for EU external policies, the Ukrainian crisis has made it also basically important for the EU to rely on an independent evidence base, so grounding its policies on more information and databases. The EUGS emphasises the need to enhance ‘strategic communications’ inside and outside the Union, 105 and this could improve the Ukrainian situation too. Nonetheless, the EU does not have a systematic mode of collecting data, which would aid it to take decisions in relation to the conflict and its possible resolution. This would also advance the Union’s action on human rights.
Additionally, it seems that all EU tools used in the case concerned have been guided by different political motives and different logics. In the context at hand (that is, the economic and political crisis, the Russian intervention and annexation of Crimea, the armed conflict in the Donbass region), the EU has struggled to assume a role as a leader. This is in part because these situations coexist and must be addressed in a differentiated manner whilst, at the same time, the EU must continue its long-term support for the Ukrainian reforms agenda. In this regard, the EUGS provides two significant insights. First, a joined-up approach for the EU’s security and development policies is expressly called: CSDP capacity building missions must be coordinated with security sector and rule of law work by the Commission. Capacity Building for Security and Development can play a key role in empowering and enabling our partners to prevent and respond to crises, and will need to be supported financially by the EU. Our peace policy must also ensure a smoother transition from short-term crisis management to long-term peacebuilding to avoid gaps along the conflict cycle. Long-term work on pre-emptive peace, resilience and human rights must be tied to crisis response through humanitarian aid, CSDP, sanctions and diplomacy.
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Two basic requirements not clearly implemented in the EU’s response to the Ukrainian crisis and its human rights implications have been the prioritisation of the tools and the sequencing of crisis response. What should be used first or second to face a crisis? Is there any logic in sequencing? Neither the EU toolbox nor the EUGS help in this regard. This also deserves serious attention during the future revision of sectoral strategies within the implementation process of the EUGS.
Another shortcoming of the EU’s response to the Ukrainian crisis concerns the inflexibility of tools, which have rarely allowed for involving civil society – one of its strongest allies in this torn country. The EUGS positively recognises the relevance of partnering with civil societies and the private sector as key actors in our networked world, in line with the broader concept of resilience ‘encompassing all individuals and the whole society’. The actual implementation of this aspect will be functional to successful outcomes of the new vision in the years to come.
Conclusion: A paradigm shift or a cherry on the cake?
This article attempted to evaluate whether the EUGS adds new significance to the EU’s commitment to human rights. Textually, the grand Strategy refers to human rights both as values (without reiterating explicitly Article 2 TEU though) and objectives (implicitly or explicitly) to be pursued across policy sectors and institutions. This seems to reflect a transcendental approach to the five broad priorities, but the promise of the human rights permeating all of EU policies is not marked strongly. Regrettably, human rights are not included among the four principles identified by the Strategy to guide the Union’s foreign and security policy (and even Article 21 TEU is not explicitly reiterated!). Does the EUGS’s take on human rights continue or complement the Union’s earlier approach in the field or prioritise them in the Union’s activities?
The analysis conducted in reference to the three case studies shows that the two ground concepts of coherence and resilience advance (if at times modestly) the existing EU human rights agenda, continuing earlier approaches (for example, ensuring a comprehensive human rights approach to conflict and crisis) or complementing them (for example, using and investing in all instruments aimed at conflict prevention, management, resolution and stabilisation; strengthening the nexus between internal and external spheres and policies). Yet, the migration policy remains problematic. This is where the EU refused to take on board lessons learnt and keeps focusing on the access to territory and distribution of migrants, rather than expanding on its modest attempt to introduce the human rights perspective to the policy field in its 2015 Migration Agenda. 108 There is much to say why this policy area’s development from the human rights perspective appears politically stalled. Here it suffices to say that the EUGS did not even attempt to enhance the focus on human rights in the policy field maintaining the 2015 Migration Agenda basic approaches.
The concepts of coherence and resilience may be highly relevant in the determination of the answer to the basic question raised. However, their significance is still embryonic. Coherence has played a more and more important role since the Lisbon Treaty granted it legal significance (see, in particular, Article 21(3) TEU for the external relations, Article 4(3) TEU for the MSs and EU coherent action). However, the EU’s resilience-strengthening efforts require the better elucidation of their implications for EU human rights related policies. Disappointingly, the EUGS’s broad attention to resilience does not make explicit reference to the basic human rights dimension it entails. The conception and the definition of resilience should be elaborated also in light of the EU’s human rights commitment and competences. Hopefully this will be given by the ‘Joint Communication on Resilience’ that is expected to be released in 2017. Especially in view of the EU’s intention ‘to support different paths to resilience, targeting the most acute cases of governmental, economic, societal and climate/energy fragility, as well as develop more effective migration policies for Europe and its partners’. 109 In fact, resilience at home and abroad can be promoted only by fighting inequalities, poverty, social exclusion, and human vulnerability, all problems that have been generally aggravated by EU policies in the past ten years.
The EU’s commitment to take on consistently human rights as the Union’s compass for action (in different policy fields) also entails to reflect on the capacity to respond to the imminent problems posed by the broadly understood crisis situations. Our analysis shows that the short-term response to human rights violations resulting from a type of crisis is not clearly foreseen in the EUGS. Here again, the two underlying concepts of coherence and resilience are highly important, but require to be better articulated within the implementation process of the Global Strategy, especially in its (by now awaited) Action Plans. Let us remember that human rights are not only aspirational values, but above all binding standards.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.