Introduction
In an effort to shield themselves from the horrors of the World War II that had devastated most of Europe, the European countries established the European human rights system consisting of a series of intergovernmental organizations.
Among the organizations established is the Council of Europe (COE) “with the mandate of protecting and promoting human rights and the rule of law through education and enforcement of the regulations of European treaties” (Craig and de Burga 43).
The other intergovernmental organizations established during the same period include the European Union (EU) and the Organization for Security and Cooperation in Europe (OSCE).
The European Union is mandated with the responsibility of promoting economic stability and peace in the entire Europe but the institutions of the Union have formulated policies on human rights. Craig and de Burga add that, “the Organization for Security and Cooperation in Europe (OSCE) primarily deals with security issues but also addresses human rights in Europe” (44).
These institutions mainly focus on ensuring that human rights in European countries meet the international human rights standards. The history and operations of these three organizations following the end of the World War II until the end of Cold War in 1990 is a clear illustration of Europe’s elaborate human rights system, which is also the most complex human rights system in the world currently (Craig and de Burga 49).
These institutions have different levels of competencies, resources, and authority. In addition, the institutions embrace changes and adapt to current challenges pertaining to human rights in order to meet the international human rights standards.
The intergovernmental organizations also differ greatly in their level of human rights implementation and monitoring mechanisms with each having different regulations, conventions, and principles of human rights implementation and monitoring.
Statement of the problem
There have been many concerns in majority of the European Union member states regarding human rights violations. Because of different socio-economic and political backgrounds of the member states, the implementation of the European human rights system often faces challenges.
For example, the asylum system of Greece, which prevented migrants from other countries particularly from North Africa from entering the EU, violated the human rights of the migrants. The migrants allegedly faced inhumane treatment at the hands of the police following their arrest (Schimmelfennig and Scholtz189).
However, the EU’s efforts of holding the Greece government accountable for the violation of human rights involving the migrants and asylum seekers have not been fruitful and this indicates the intergovernmental organizations lack sufficient capacity to promote human rights and ensuring that states take full responsibility over human rights violations.
In addition, the EU member states have different migration policies and asylum procedures, which the EU has failed to harmonize.
One of the main tenets of the European human rights system is to protect individual’s rights to freedom of region and personal autonomy. However, governments of the EU member countries have failed to uphold this provision leading to interference into religion and private lives of citizens.
For example, the French government passed legislation in September 2010 that restricts face-covering veils in public places by women (Drzemczewski 78). The legislation even made it an offence for any religion to coerce women to wear face-covering veils and further held that the new legislation was compatible with the French constitution. Other European countries have also followed suit including Belgium, Spain, and Germany.
In a recap, the European system of human rights has failed to counter the discriminatory laws based on religion, age, disability, and sexual orientation raising many concerns over its effectiveness in the implementation and monitoring of the human rights records of the member states (Drzemczewski 108).
The aim of this paper is to establish the role played by the European human rights system in ensuring that states comply with the statutes laid down in the Intergovernmental organizations regarding human rights.
Objectives
In many European Union States, discriminatory laws enacted have contributed to abuse of human rights, which goes against the spirit of the European human rights system. The major objectives in this paper will be:
- To establish the role played by the European human rights system with regard to the protection of human rights.
- To evaluate the efficiency of the European human rights system in relation to the international human rights standards.
- To outline the specific examples that raise concerns over the Union’s participation in ensuring implementation of human rights by member states.
- To illustrate examples of human rights violations by EU member states and the role played by the Union to mitigate this.
- To provide recommendations on how the European human laws system would improve its efficiency in the wake of growing criticisms over its effectiveness.
Themes
The observance of the human rights by the EU members varies depending on social, economic, and political factors.
Despite the efforts of the European human rights system to establish a common system of legislation to guide the implementation of the human rights in all the member states, the specific laws of the states deter the full implementation of human rights (Drzemczewski 97). The major factors that influence the observance or violation of the human rights by the EU member states include:
Discrimination
Discrimination involves the act of creating a clear separation either through practices, policies or actions that are inappropriate based on the perceptions of the social group involved. Moreover, the social groups involved must be groups “important to the structure of social interactions across a wide range of social contexts” (Kirsch 1).
Thus, the basis of discrimination can be race, gender or religion and the discriminated persons have an orientation towards one of these social groups. In addition, discriminatory conduct places the social group at a disadvantage compared to the other people.
In Europe, discrimination and intolerance has become widespread with the minority groups experiencing it the most. The Roma, who are Europe’s largest minority group continue to face marginalization in most of the EU countries subjecting them to extreme poverty across the EU region (Kirsch 4). EU member countries, notably France, have continued to deport the Roma to Kosovo against the UNCHCR guidelines.
France also targeted the Roma minority for deportation to Eastern Europe against the EU policies that protect the Roma against marginalization. Recently, the French began a spirited campaign to expel the Roma from France following riots over the shooting of a member of the French community (Kirsch 2).
This resulted to the repatriation of over a thousand Roma to Romania and Bulgaria. The French government also undertook to dismantle illegal camps by specifically targeting the camps of the Roma minority showing a discriminatory intent. It took European Commission’s threats for France to apply the freedom of movement clause enshrined in the EU legislations.
Another notable case of discrimination that is widespread in Europe concerns the legislations in many states that restrict face-covering veils. Despite the concerns that the legislations interfere with the freedom of religion, the French parliament passed a legislation that prohibits wearing of veils by women in public places. Germany and other EU member states also followed suit to restrict public wearing of face-covering veils (Nanz 141).
Discrimination based on religion, sexual orientation, age and disability is rampant in most EU states including the Netherlands, which requires that transgender individuals must undergo a gender change to become either a male or a female. Italy on the other hand, lacks stringent laws that can guarantee protection of individuals against discrimination based on gender.
Despite the EU’s efforts to enforce anti-discriminatory laws, national obstacles to ending discrimination are prevalent in most countries. Discrimination places the discriminated social group at a disadvantage, which affects the social lives and in turn affects their economic development (Offe 213).
In addition, it goes against the international human rights provisions, which grants respect to human dignity and values of a social group and promotes tolerance with respect to minority groups to enhance peaceful coexistence. However, most of the EU states fall short of these international human rights standards with regard to their handling of the marginalized groups.
Democracy
Democracy is a form of government, which encompasses equal participation of the people in the determination of the social, cultural, and economic aspects affecting their lives. The electorate participates in the development and implementation of legislations to ensure free and equal opportunities for all.
The EU promotes democracy and human rights as the universal core values for effective conflict resolution and poverty reduction (Schimmelfennig and Scholtz 115). The Council of Europe promotes democracy and the rule of law as the fundamental constituents for the observance of human rights by the EU states. The council ensures fairness in elections and public acceptance of elections, which promotes democracy.
The EU articulates various concepts of democracy including good governance, democratization and democratic governance in many EU and non-EU countries. The EU promotes democracy in non-EU countries particularly countries from Central Asia such as Uzbekistan, Kazakhstan, Kyrgyzstan through cooperation (Schimmelfennig and Scholtz 205).
In addition, recent statistics point to the fact that many migrants from EU and non-EU countries have the freedom to participate in national elections of the host EU nation. Voting for the representatives to EU parliament also shows active participation of the citizens from EU member countries to promote the integration of EU into a common regional and economic bloc.
The EU also promotes good governance and democracy in non-EU countries in Central Asia and African states through many democracy-building initiatives. However, the participation of the Union in non-EU countries faces challenges as regards to the intent of the democracy-building activities.
According to Schimmelfennig and Scholtz, the EU’s “loft principles” concerning democracy and democratic governance often fails to meet expected goals, let alone taking any action to sanction the states violating the democratic principles (203). Additionally, the EU has been accused of being inconsistent in the application of its policies to promote democracy.
Schimmelfennig and Scholtz attribute the inconsistency in the democracy promotion and democracy building to difference in political, social, and economic factors among the EU states (208).
Moreover, disagreements that exist among the union member states, which attempt to protect their domestic interests, further contribute to the variations in foreign policy among the member states. In foreign countries, there exists no clear distinction between the policies of EU as an entity and individual member states regarding democratic governance.
Despite the difficulty faced by EU in trying to forge a common position regarding foreign policy, the EU has achieved some success in promoting democracy particularly through allowing citizens within the EU to participate in national elections involving the host EU member state (Yuongs 892).
Regarding foreign democratic policy, cooperation agreements with the governments of countries such as Uzbekistan from Central Asia have helped to promote democratic governance in those states. However, challenges arise, as it is often problematic for the EU to establish a common position (Nanz 133).
Some member states first undertake to protect their domestic interests or the interests of their former colonies in the African continent, which affects the EU foreign policy. Besides, the implementation of democratic principles by nations is a voluntary decision and does not involve sanctions from the EU.
Economic, social, and cultural rights
The economic, social, and cultural rights are the major components of the human rights of individuals important in the realization of a universal social justice. The implementation of these rights acts as a prerequisite to the development of civil and political rights. For full enjoyment of social liberties, the economic, social, and cultural rights are fundamental.
In this context, economic barriers such as poverty prevent people from enjoying their fundamental human rights (Eide, Krause, and Rosas 67). Therefore, when viewed in relation to human rights, poverty is an obstacle to full enjoyment of human rights.
Social and cultural freedoms are also fundamental to the full enjoyment of the human rights. Internationally, organizations such as the United Nations International Convention on Economic and Social Rights, the World Health Organization and the International Labor Organization, play a significant role in ensuring that human rights are upheld.
The European human rights system protects the economic, social, and cultural rights through the European Council’s Community Charter for the Fundamental Social rights of Workers and the European Social Charter.
The EU implements policies to promote these rights based on the premise that the resources available in the world are enough for the realizations of the social and economic rights across all the nations of the world. By granting marginalized groups economic, social, and cultural freedom, they are able to engage in issues that affect their political life (Eide, Krause, and Rosas 118).
The objectives of the European Charter of Fundamental Rights included protection of the fundamental human rights of the citizens of the European Union taking into account the technological and scientific advancement.
The European Charter of Fundamental Rights includes the civil and political rights as part of the fundamental human rights in addition to the social and economic rights. However, the Charter is not legally binding but its provisions are usually incorporated into intergovernmental treaties making them legally binding (Majone 121).
The Charter has also been an important tool in many European courts as it serves as a new case law implying that, in future, the Charter has the potential to protect the economic and social rights of the EU citizens even in challenging technological and scientific developments such as cloning.
According to Jacobs, the provisions of the Charter, which expands its covering to include future developments that affect the human rights, will allow the constitutional changes in EU member states in favor of expansion of social and economic rights (285).
The Charter also has provisions that cater for social and economic rights of other non-EU nations in line with the EU’s mission of eastward expansion. Provisions in Article 5 prohibit international human trafficking. In this respect, these provisions protect the fundamental rights of non-EU citizens in countries that wish to become EU members.
In addition, the inclusion of this provision into the Charter is a show of EU’s foreign policy with regard to social, economic, and cultural rights (Eide, Krause, and Rosas 121).
The Charter is an important step in spreading the awareness of the various human rights even to non-EU states. However, the Charter is yet to be incorporated into the EU Treaty but is likely to influence greatly the way nations uphold human rights in Europe.
In addition to the European Charter for Fundamental Rights, the European Social Charter is also part of the European system of human rights for the protection of social and economic rights. The European Social Charter falls under the Council of Europe and was adopted in 1961 to ensure that states conform to the international human rights standards (Jacobs 291).
The Charter grants rights to work, collective bargaining social security, and medical protection to the EU citizens. In addition, the Charter provides for state legal and social assistance to migrant workers from EU and non-EU nations (Lister 281).
The Charter specifically protects individuals under employment including better payment and employment benefits and recognizes the right to strike involving unsatisfied employees. Although the Charter provides an ideal way of catering for economic and social rights of the citizens, it has no legal obligation and states are not bound legally to conform to its provisions.
The European convention also established the European Court of Human Rights (ECHR), which allows EU citizens to seek legal redress if they feel that any state party infringes their individual rights (De la Rochere Para. 6). The establishment of the court marks a milestone in the protection of human rights in Europe as it grants individuals an active role in the protection of their rights by a particular state.
It allows any individual who feels that the state has violated his/her rights to file a case against any state organ in this court, which is a break from the traditional way where the states remain the main actors in the international arena. State parties can also file lawsuits against each other in the European Court of Human Rights. However, much of these provisions including the lawsuits involving state parties are rarely used.
It is evident that the European human rights system consists of many human rights tools that promote the social and economic rights. The states that ratify the provisions of these treaties must uphold the provisions of the various European Convention Charters to conform to the requirements.
The ECHR, for example, provides the best channel through which EU citizens can force their governments to implement policies that could ensure the full enjoyment of their fundamental human rights (Craig and de Burga 49). New developments in science and technology are monitored by the European Charter of Fundamental Rights to protect the citizens.
Arguments
Participation in decision-making
Although the European Union human rights system provides the most comprehensive and expatiate way of protecting the fundamental rights of citizens in the world, the involvement of the citizenry in major decision-making is limited. In order to meet the demands of the over 731 million EU citizens with regard to human rights, active participation of the citizenry is important (Jacobs 65).
Through public participation, the decision-making process particularly involving politics would be able to incorporate the views of the citizenry and allow public criticism regarding the form of governance in the EU member states.
Public participation in decision-making has the potential to promote democratic governance in most European nations. In addition, allowing public deliberations of the issues that affect them would create an internationally acceptable agreement with regard to social, economic, and cultural rights.
The dissatisfaction of the public with political events occurring in the EU member states is the major cause of the rejection of referenda on the European constitution. The citizens should be given a chance to express their views in matters such as constitution making to avoid such incidences (Janis, Kay, and Bradley 116).
The process of European integration is another latter day contentious issue that requires involvement of the EU citizenry in the implementation process. The current system only involves EU officials and the civil servants in a closed way of making decisions rather than an open transparent system that allows public participation in the decision making process in order to establish an acceptable outcome.
In addition, following the recent economic crisis, the EU undertook to control the economic aspects of its citizenry. However, these steps did not involve public participation, which further affects democratic governance as supported by the European council.
Although the EU states have the most advanced democracy in the world including transparent elections, the EU has not been quite successful in engaging the public in debating its political future and this has contributed to the decline of public confidence in political institutions in EU as a way of solving their economic and social problems (Offe 211).
Challenges affecting the EU citizens in recent times including the environmental concerns in the wake of globalization and migration have not been fully addressed by the leadership of these countries giving way to institutions to undertake this role. This has contributed to increased strength and authority of the EU courts and intergovernmental institutions (Janis et al. 134).
However, as these institutions take up roles that are more diverse, the democratic governance in the individual states is likely to suffer. To return the countries to democratic governance, an important tenet of the EU, empowering the citizenry through public participation is important.
Self governance
Self-governance entails the involvement of the citizens in leadership as way of ensuring a well-functioning democratic society. Self-governance allows citizens to articulate their views and exercise their rights while protecting them from infringement of these rights by the state (Jacobs 112).
Although the EU has a developed system that protects the fundamental rights of individuals, the European Charter recognizes self-governance through the local government and encourages the respective states to respect the autonomy of the local authorities.
Under the European Charter, the local authorities have the mandate to manage issues that affect public including public participation and legal issues of the citizens (Fung and Wright 29). Thus, the Charter provides guidelines on self-governance and requires the individual member states to obey them.
However, this provision is often a challenge to the European Council because it is difficult to harmonize the local government legislations in the member states with the European international standards in order to expand the scope of public participation in the local affairs.
In addition, the local government structures prove to be inadequate in promoting public participation in accordance with the European Council’s requirements. The Council should promote self-governance at the local level without imposing the requirements that the local authorities have to meet the international standards.
Guarantees
The European institutions including the Council of Europe (COE) and the European Union (EU) focus more specifically on human rights guarantees with respect to criminal law and violation of human rights. The legislations of these institutions should expand to include community rights and even rights of a given social group in the national or international arena (Majone 21).
These legislations should then be anchored in the respective constitutions of the member states. However, Nanz observes that, the implementation process should allow public participation to ensure general acceptability of the new legislations (206). Additionally, the institutions should provide legal actions against countries that fail to respect the provisions pertaining to human rights.
Conclusion
The European human rights system promotes the observance of the human rights by the member countries through European institutions notably the European Union and the Council of Europe. However, challenges regarding the implementation of these laws are common particularly with regard to discriminatory laws in the member states.
To protect the cultural, social, and economic rights, which are the fundamental human rights, the European Social Charter is the important document.
However, with respect to democracy and self-governance, the EU has contributed to the decline in democratic governance through the reduced scope of public participation as more focus is given to EU officials and the government. By promoting public deliberations over issues affecting them, the policy choices of the member states would be more acceptable to the citizenry and the human rights violations would decline.
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