Dr Michael Reiterer, Adjunct Professor of International Politics, University of Innsbruck
03 Aug 2010
SR 901, Level 9, 11 Slim Barracks Rise, NTU@one-north campus, Executive Centre Singapore 138664
3.00pm – 5.00pm
The EU’s most recent Lisbon Treaty came into force on 1st December 2009. With this enactment, the link between EU foreign policy and human rights is for the first time formally established. The incorporation of human rights as a possible agenda of EU foreign policy in the Lisbon Treaty is a highly significant development, according to Dr Reiterer. Firstly, this is because the Lisbon Treaty forms “primary law” in the EU, meaning it can be taken as the “original source” or “supreme source” of EU law. Secondly, aside from its standing as supreme law, the Lisbon Treaty is ratified by EU member states and legally binding on all 27 member states. Whether or not the Lisbon principles translate into concrete and coherent EU external action remains to be seen but Dr Reiterer’s lecture outlined some possible consequences on the EU’s effectiveness in the global arena.
With the Lisbon Treaty, for the first time in EU Treaty history, there is a provision for human rights to be an objective of EU external action. The first paragraph of article 21 in the Lisbon states that “The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: 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, and respect for the principles of the United Nations Charter and international law”.
Dr Reiterer quoted prominent EU foreign policy academic Karen Smith, who saw the incorporation of rights in the Lisbon in the context of the broader EU Security Strategy. The security strategy is itself a fairly recent development set forth by Javier Solana in the 2003 European Security Strategy paper, with energy and environment dimensions added only in 2008. Past Treaties, such as the 1957 Treaty of Rome that established the European Economic Community, says nothing on human rights, pointed out Dr Reiterer. This does not mean that the EU hitherto was not concerned about human rights, a focus of the Council of Europe, which was established following the horrors of World War Two.
While the Lisbon Treaty enshrines human rights as a guiding principle, it does not of course “spell out how human rights should proceed”. Dr Reiterer pointed out that Article 275 of the Lisbon Treaty states that the European Court of Justice does not have jurisdiction to interpret the EU’s Common Foreign and Security Policy, but it can monitor the implementation of the CFSP to ensure that Union competences and procedures are not delimited. In other words, or in Dr Reiterer’s words, the ECJ “cannot be approached for foreign policy issues”. Additionally, it does not mean the EU can do whatever it likes in international relations because the Lisbon statements are qualified by “respect for” the “United Nations Charter”, “national sovereignty” and the “international system”.
The new High Representative for Foreign Affairs and Security Policy and first occupant of this post created by the Lisbon Treaty, Catherine Ashton, has given rights a “political layer”, said Dr Reiterer. Baroness Ashton set out human rights as one of her priorities together with nuclear non-proliferation, counter-terrorism and climate change. But Dr Reiterer, again quoting Smith, pointed out that the EU remains divided over what policies can promote rights and whether rights should be prioritised in other areas.
This brings us back to the issue of whether the EU’s foreign policy, meshed with that of 27 member state’s own foreign policies, can be coherent. And coherency will help define the EU’s global identify as “a value driven normative power”, said Dr Reiterer. He noted that this aim raises questions of credibility between the standards the EU applies internally and externally. Dr Reiterer said that the (non-binding) presentation of the Charter of Fundamental Rights of the EU in the Nice Treaty in 2000, is now legally binding in the Lisbon Treaty. This development closes the credibility gap, according to Dr Reiterer (this, even though Denmark, UK and Czech Republic can opt-out from the Charter, which protects the civil, political, economic and social rights of EU citizens and residents)
The Lisbon Treaty further establishes that the EU will join the European Convention on Human Rights of which the EU is not at present a signatory. This raises “interesting” legal questions over how an “EU judge” will be appointed, and over the “monopoly” of the European Court of Justice, an EU entity, and judgements which may come from the European Court of Human Rights, a separate entity.
The shift in economic power to the BRIC states and G20, in wake of the financial crisis, was accompanied by a shift in political power, Dr Reiterer said. Emergent powers are requesting greater voting rights in the IMF and World Bank, and greater access to the G7/8. Dr Reiterer predicts a competition in values and ideas, with the West no longer accepted as the “universal” projector of political, economic or cultural power. As Dominique Moisi, IFRI, puts it in his book “The Geopolitics of Emotion”, the future of the planet may no longer be dominated by decisions taken by a democratic West. They may “soon discover that a centralised, non-democratic regime such as China” may better respond to the economic crisis than the US or EU.
The EU thus faces the challenge of making use of normative power in its international relations. Individual EU member states do not have credibility to do this by themselves. The old school of messaging has given way to concepts identified by Ian Manners as diffusion through contagion, procedures and cultural filters. Dr Reiterer said that the EU must find a niche for its foreign policy to shape conceptions of normative international relations and be able to project its transformative, soft or smart power. And for this to happen, the EU within itself needs to have well established internal norms. For instance, the EU has been consistent in pressing for the abolition of the death penalty and executes this without distinction inside the EU and in international fora, but it fares less successfully in the engagement for protection of minorities.
The EU should “use the instruments at its disposal” such as “persuasion, education, human rights dialogue and consultation” to exercise diplomatic and economic influence, “especially through the use of conditionality”. This is particularly pertinent in the accession negotiations of new candidate states.
He commented that the EU approach to human rights is related to the person or individual. This is arguably part of “Western philosophy”, that the individual is in the focus compared to discussions in Asia where the community has higher priority than the individual. What should form minimum standards of human rights was also considered by Reiterer as a good discussion topic for what should be the features of general international law.
The European approach also brings forward socio-economic factors. Dr Reiterer said this can form the bridge between the individualistic Western approach and Eastern collective approach as “this is the area where interests certainly meet”. Furthermore, poles of (normative) attraction can be formed by “working with soft power… combined with the focus of human security and the emphasis of this new concept which we see in international law”, which looks to “global governance to implement human rights and the rule of law”, plus the EU social awareness based on the European social model and concepts as the EU’s “Unity in Diversity. This could be the EU’s specific niche and contribution to common foreign policy.
The EU has also published non-binding guidelines on subjects such as torture, cruel, inhumane or degrading treatment, children in armed conflict, and so on. “It is always easier in policy if you can build on something in common”. The Lisbon Treaty, said Dr Reiterer, has provided the “raw material”. Now, it stands for the politicians to make use of it.