Who’s right on human rights?

Tensions between the EU and the Council of Europe over who will set the agenda on human rights have been growing since the Union’s Fundamental Rights Agency began its work earlier this year. Judith Crosbie reports.

"With all the best will in the world, I cannot understand what it is going to do." These were the words uttered two years ago by Terry Davis, secretary-general of the Council of Europe, in reaction to plans by the EU to set up a fundamental rights agency.

To outside observers it must have seemed strange that an international organisation would not support the setting up of a human rights organisation, but tensions have grown between the Council of Europe and the EU, ever since the Union began building a "common area of justice, freedom and security".

EU legislation has been adopted or proposed which appears to cut across what the Council of Europe does. Member states opposed to a minimum set of EU standards for suspects complain that they would duplicate, or even lower, the standards set out in the European Convention on Human Rights, a Council of Europe law, and would bring the European Court of Justice, the EU’s highest court, into conflict with the European Court of Human Rights, the Council of Europe’s court.

The scope of the Fundamental Rights Agency, which began work in March this year, has been limited to scrutinising ‘Community law’, because of similar arguments from some EU member states. This was much to the satisfaction of the Council of Europe which believed that if the agency was allowed to scrutinise powers of national bodies or agencies, such as police and security forces, it would overlap with its remit.

But other EU member states and the European Commission are adamant that the Union must take on a role in policing fundamental rights, especially since it is increasingly active on security and the fight against terrorism or organised crime.

A memorandum of understanding between the Council of Europe and the EU, approved in May, comes at a timely moment. First suggested at a Council of Europe summit in 2004, the memorandum seeks to "intensify co-operation and ensure co-ordination of action on issues of mutual interest". It focuses on specific areas such as human rights and fundamental freedoms, democratic stability, education and youth and social cohesion. Both institutions will "consult regularly and closely, both at political and technical levels" and "develop joint activities". A separate report in 2005 by Jean-Claude Juncker, the prime minister of Luxembourg, also set out ideas on how the relationship between the two institutions should develop.

Many working in the area of human rights have welcomed the memorandum as a way to heal the divisions between the two bodies. "Everybody needs to grow up a bit and stop the squabbling over who wants to have what toy. We are all in the same [human rights] business," said UK Liberal MEP Sarah Ludford, who is a member of the European Parliament’s human rights and civil liberties committees.

With 27 EU member states as opposed to 47 in the Council of Europe, the EU could be a "gold standard" for the Council of Europe in demonstrating what its non-EU members should be striving for, she added. "The EU is bound to have a higher general standard than the Council of Europe, given some of the Council’s members including Russia and the Caucasus."

Lotte Leicht, Human Rights Watch’s EU director, said that while the Council of Europe’s strength lay in its pan-European remit, its conventions and its court, the EU had more ability to force its human rights messages on recalcitrant governments. The EU could complement what the Council of Europe does by urging states to take on board recommendations made in its reports or through European Court of Human Rights’ judgments.

"The EU has teeth that the Council of Europe doesn’t have. If we are talking about EU-Russian dialogue for example, it’s important that the EU takes a principled stance on the human rights abuses we are seeing today," said Leicht.

"There are eight judgments that the European Court of Human Rights has handed down on Russian executions, disappearances and the authorities not properly following up investigations. I believe that these should provide the EU with a unique opportunity to insist that Russia implements the court judgments," she added.

Leicht said that the EU was not by any means developing a perfect model for human rights scrutiny, with no working group in the Council of Ministers to follow up reports from the Fundamental Rights Agency that will be highlighting problems in member states. The lack of follow-up in EU countries that were named in Council of Europe and European Parliament reports on so-called CIA rendition flights and secret detention centres also highlighted "gaps", she added.

But further trouble may come in the future as the new reform treaty, currently being drafted by EU governments, envisages expanding the EU’s powers into more areas of justice and home affairs. The Fundamental Rights Agency will probably see its scope broadened and the European Commission will more easily get its legislation on fundamental rights through the Council of Ministers, since national vetoes will be abandoned.

Further work on the memorandum of understanding and a co-operation agreement, expected to be approved in September, could be ways to ensure that the divisions between the Council of Europe and the EU are not widened.

The Council of Europe

The Council of Europe was set up in 1949 with the aim of developing common democratic principles throughout Europe, in the wake of the Second World War. There were ten initial signatories (Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden and the UK) with 47 members today. In addition, Belarus is an applicant country since its "special guest status" was suspended because of its human rights record. There are also five observer states: the Vatican, the United States, Canada, Japan and Mexico.

Several conventions have been adopted by the members and even by some non-European states, with the most prominent one being the European Convention on Human Rights.

The Council of Europe’s institutions include the parliamentary assembly, the committee of ministers, the secretariat and secretary-general, the Congress, the commissioner for human rights and the European Court of Human Rights. The latter is by far the most well-known of all the Council’s institutions and has been responsible for allowing European citizens to force human rights issues on their national governments.

The flag the EU uses today was first adopted by the Council of Europe in 1955 and designed by Arsène Heitz. To avoid confusion with the EU, the Council of Europe uses a modified version of the flag. Both bodies also share an anthem, the ‘Ode to Joy’, and Europe Day, which falls on 9 May.

Tensions between the EU and the Council of Europe over who will set the agenda on human rights have been growing since the Union’s Fundamental Rights Agency began its work earlier this year. Judith Crosbie reports.