Human Rights and Democracy for a Globalised World

GOLD MERCURY INTERNATIONAL Global Governance Policy Series: Human rights and democracy for a globalised world

Human rights and democracy for a globalised world GLOBAL GOVERNANCE POLICY SERIES

From Declaration to Implementation The case of the European Union Written by Enrique Barón Crespo, former President of the European Parliament.

Keywords: Human rights> European Union> democracy> international law> globalisation> citizenship> European Convention on Human Rights> legitimacy of law> Nice Treaty> Lisbon Treaty.

10 MINUTES

GOLD MERCURY INTERNATIONAL Global Governance Policy Series: Human rights and democracy for a globalised world

Creating a Vision of Europe Project EU citizens are not excited, not emotionally involved, but bored, despondent and uninspired by the union’s institutionalism. Is there a shared vision for Europeans, a European identity?

European citizens are or the most part disenfranchised and distant from the overall EU project. Having successfully accomplished several goals such as preserving peace, increasing human rights, and solidifying democracy, the now larger EU is in need of a vision and brand that clearly communicates its future role, purpose and value to its citizens. A vision that connects with the needs and requirements of the European and global civil society and responds to the challenges facing a globalised world.

GOLD MERCURY EU PROJECT SERIES

aims to analyse and create the basis for a larger debate about Europe, the EU and its future vision and identity.

Following the ratification of the Lisbon Treaty, this series aims to reveal the often underestimated issues that need to be taken into account to start a constructive debate about the future of the EU which includes creating a future EU identity and brand.

By analysing the current citizens’ perception of Europe, this series will include: an exploration of the meaning and significance of EU identity today, and an analysis of current citizens’ perception of EU. It showcases what the EU has done in the past and what it is doing now to create a European identity. This series aims to present a new framework to understand the complexity that lies behind the EU identity, suggesting new standards to start a constructive debate on EU citizenship and EU identity and drawing on new insights regarding the current situation of EU identity.

The EU PROJECT SERIES shines a new spotlight and revitalizes the debate on the EU’s vision and future, suggesting new grounds and parameters to build a fresh paradigm for the EU to clarify its role on the world stage.

  GOLD MERCURY INTERNATIONAL  Global Governance Policy Series: Human rights and democracy for a globalised world

Human Rights is more than a Declaration. The fact that most of the countries of the world have signed and ratified the Declaration does not mean that automatically human rights are respected. Respect for human rights is a continuous process.

This debate on Human Rights, on the eve of the 60th Anniversary of the proclamation of the Universal Declaration by the UN on the 10th December 1948, is timely. Having lived myself under a dictatorship for half of my life I can subscribe to the value of the Declaration, that in Francoist Spain was a banner for the democrats and a text despised by the Regime and its sycophants. Human rights are like the air you breathe, you realize their value when you lack them. The most engaging and touching moments I have lived in my political life are related to them. First, as defendant and human rights lawyer against the tyranny, later as Member of the Spanish drafting the Constitution of 1978 and voting the adhesion of my country to the European Convention on Human Rights.

As a Member of the European Parliament (MEP) since 1986, I feel proud of participating in the battle for the introduction of citizenship in the Maastricht Treaty and, as EP representative in the Intergovernmental Conference (IGC) on the Lisbon Treaty, for the solemn proclamation of the Charter of Fundamental Rights that took place in the EP hemicycle on the 12 December 2007.

Eleanor Roosevelt with the Universal Declaration of Human Rights.

Human Rights is more than a Declaration. The fact that most of the countries of the world have signed and ratified the Declaration does not mean that automatically human rights are respected. Respect for human rights is a continuous process; it begins in the school, implies all the spheres in everyday life and requires active government policies, an independent justice and training of the police. It is not a process that is made at once, the whole society must transform itself in a re-education task. It cannot be imposed from outside by force.

GOLD MERCURY INTERNATIONAL Global Governance Policy Series: Human rights and democracy for a globalised world

Vivian Malone Jones, who on a blisteringly hot June day in 1963 became one of two black students to enroll at the University of Alabama.

Human Rights are no more the privilege of developed capitalist countries, most of the humanity wants to live in societies that respect human rights and elect freely their own governments.

In 1948, the proclamation of the Declaration meant, for most of mankind, the beginning of the end of colonisation and the construction of a new world. After been attacked as an unilateral imposition by word or by force of western or bourgeois values by some of its critics, ignoring the values of other cultures, the fact is that since the 80’s there has been an ongoing process of democratic revolution all over the world. Human Rights are no more the privilege of developed capitalist countries, most of humanity wants to live in societies that respect human rights and elect freely their own governments.

Moreover, they affirm and appreciate, within their own different cultures, the basic features of human rights and rightly criticise the hypocrisy of imperial powers that do not apply at home what they preach to others. As we say in Spanish, there is a long stretch between saying and doing.

The case of the European Union is interesting in order to understand the complexity of the process from Declaration to Implementation. In a certain way, it is an upside down process, in the sense that although respect for human rights was a fundamental pillar of the European construction since the beginning, the effective proclamation of a binding Charter of Fundamental Rights is still hanging today on the ratification process of the Lisbon Treaty. What is at stake is the affirmation of the European Union as a supranational democracy, with legislative power founded on twofold legitimacy of States and citizens, enshrining the Charter as a binding commitment. In short, a pioneering regional experience to the challenge of democracy and globalisation.

The key question is how the legitimacy of law and power is secured in this postnational political innovation and what force remains implicit in the ancient, radical concept of democracy – that is to say, a society based on self-rule by free and equal citizens – which is rooted in the Greek polis and has since found expression in certain nation states and, today, in the European regional context in the globalisation age.

GOLD MERCURY INTERNATIONAL Global Governance Policy Series: Human rights and democracy for a globalised world

The first step of the European construction was the Congress of the European Movement in 1948, which bore the fruit of institutions such as the Council of Europe and the European Convention on Human Rights with the European Court of Human Rights that commands respect by its member States and whose judgments are accepted freely.

The Europe of freedom was born. The launching of the Helsinki Conference in the 70’s with the inclusion of humans rights in the agenda drove to the creation of the OSCE. Today almost all the States of the continent are members of the organisation.

The European Movement is a lobbying association The Final Act of the

that coordinates the efforts

Conference on Security and

of other associations and

Cooperation in Europe, known

national councils with the

as the Helsinki Declaration.

goal of promoting European integration.

The first step of the European construction was the Congress of the European Movement in 1948, which bore the fruit of institutions such as the Council of Europe and the European Convention on Human Rights.

In the case of the European Union, regarding the process of building up a community of will, the way forward has been different. Born as a common market based on the four freedoms (the first: freedom of movement and establishment of the persons), there was no explicit proclamation of a Charter of Human Rights. It was clear that dictatorships such as Greece, Portugal, Spain and Turkey could not become members of the Community, while the firm consolidation of democracy in Germany or Italy proved the efficiency of the method. Since the beginning, this was an implicit rule in an open-ended constituent process with a substantive role played by the jurisprudence in the European Court of Justice, as the institution guaranteeing a community based on the rule of law.

The EU’s progressive development, above all since the EP’s first election by universal suffrage in 1979, implanted the “democratic question” in a context within which the EU is not a State, yet cannot be explained either in the light of Montesquieu’s traditional separation of powers. The first breakthrough was the introduction of European citizenship in the Maastricht Treaty. The introduction of human rights as a requirement was made in the Copenhagen criteria in 1993. To join the EU, a new Member State must meet three criteria: political - stability of institutions guaranteeing democracy; the rule of law - human rights, respect for and protection of minorities; economic - existence of a functioning market economy and acceptance of the Community acquis. In the three waves of enlargement that followed, the experience has shown that the most decisive criteria is the political one.

GOLD MERCURY INTERNATIONAL Global Governance Policy Series: Human rights and democracy for a globalised world

Nice Treaty, signing ceremony photographs.

In the meantime, there has been every four years a “crescendo” succession of Treaties - Amsterdam, Nice - to adapt to the growing reality of the Union. The negotiation of the Treaty of Nice was made in parallel with the celebration of the first Convention for the elaboration of a Charter of Fundamental Rights. The introduction of this new formula represented a major innovation in the traditional negotiating process that the IGC held behind closed doors.. The method of celebrating a public debate among MPs coming from the member States with MEPs, representatives of the governments and the Commission was a democratic success, compared with the failure of the Treaty.

The method of celebrating a public debate among MPs coming from the member States with MEPs, representatives of the governments and the Commission was a democratic success.

The Charter in essence enshrines the fundamental rights already recognised in its Member States at EU level, giving them a solid base for the Jurisprudence of the Court.

Nevertheless, it develops the field of basic human rights to new realities such as the prohibition of eugenic practices, in particular those aiming at the selection of persons, the prohibition on making the human body and its parts as such a source of financial gain and the prohibition of the reproductive cloning of human beings; the Protection of personal data; the rights of the elderly; the integration of persons with disabilities; the Right to good administration and the Right of access to documents; the Access to services of general economic interest and the Right to environmental protection.

The next step was the Convention for the Constitutional Treaty, which integrated the Charter fully as its Second Part. In its debate, the position of the UK Government with regards to reducing its impact is remarkable. It may surprise, but the first written Human Rights in the UK is the Act of 1998.

After the negative outcome of the French and the Dutch referenda and the passive attitude of the British, Czech and Polish governments the decision was taken to rescue most of the content of the Constitutional Treaty. The solution has been the Lisbon Treaty, in which the greatest loss has been the Charter. It is no more part of a Treaty that amends previous Treaties, and in the first draft for the IGC it was reduced to the level of Declaration nº 11. Moreover, a Protocol introduces an opt out clause for the United Kingdom and Poland with regard to the jurisdiction of the European Court of Justice in the application of the Charter.

GOLD MERCURY INTERNATIONAL Global Governance Policy Series: Human rights and democracy for a globalised world

The new Treaty brings together values and adapts the objectives to the Union’s new missions.

The European Parliament played a major role throughout the negotiations of this new Treaty and played an active role in finding solutions which enabled it to see the light of day. The modified Treaty no longer contains constitutional elements, but preserves the most important successes of the Constitution. It will allow the expectations of the citizens to be addressed, with a more marked social dimension through the legally binding nature of the Charter of Fundamental Rights.

The new Treaty brings together values and adapts the objectives to the Union’s new missions. The notions of “equality”, “social market economy”, “full employment”, “social justice”, “equal opportunities between men and women” and “solidarity between generations” have been incorporated.

Representatives of the key EU institutions proclaimed

The cornerstone of the fundamental rights is the very notion of European citizenship.

Created in the Maastricht Treaty, it has resumed its place due to the insistence of the EP representatives, and appears in Art. 8 of the Treaty on European Union (TEU): “Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it”. The Charter of Fundamental Rights becomes legally binding and has the same legal rank as the Treaties, although its text will not be in the Treaties. Thanks to pressure from the European Parliament, the Charter was not reduced to a declaration. It was formally proclaimed by the Presidents of the three Institutions (Parliament, Commission and Council) in the European Parliament and will reflect the Charter’s specific nature and increase its visibility.

and signed the Charter of Fundamental Rights of the European Union during a

The draft Treaty also provides for a new legal basis for the accession of the Union to the European Convention on Human Rights.

ceremony in Strasbourg.

Participatory democracy is enhanced notably through the right of citizens’ initiatives that allow a minimum of one million citizens from a significant number of Member States to ask the Commission to take an initiative in a specific area that they deem necessary in accordance with the Treaty.

Mini-book published by the European Union containing the text of the Charter of Fundamental Rights

GOLD MERCURY INTERNATIONAL Global Governance Policy Series: Human rights and democracy for a globalised world

Dialogue with organisations representing civil society has also been recognised.

The new Treaty gives a new perspective to social policy. In addition to what is laid down in the objectives, a horizontal social clause was introduced which stipulates that the European Union, in the implementation of its policies, must take into account the requirements linked to the promotion of an “increased level of employment”, the “guarantee of adequate social protection”, the “fight against social exclusion”, “education”, “training” and “health protection” and recognise the role of the social partners with The Tripartite Social Summit for growth and employment.

The new Treaty lays down other conditions for general application, notably: the promotion of equality between men and women, the fight against discrimination, environmental protection and consumer protection, and gives importance to services of general economic interest, in particular promoting social and territorial cohesion.

The Treaty of Lisbon (initially known as the Reform Treaty) is a treaty that was signed by the European Union member states on 13 December 2007, and entered into force on 1 December 2009. It amends the Treaty on European Union and the Treaty

The new Treaty lays down other conditions for general application, notably: the promotion of equality between men and women, the fight against discrimination, environmental protection and consumer protection.

establishing the European Community.

The new Treaty integrates freedom, security and justice into the Community framework.

The application of the normal legislative procedure (extension of co-decision and qualified majority) will broaden the EU’s capacity to act in this domain and to fight terrorism with the creation of a solidarity clause in the event of a terrorist attack and organised crime. The communitarisation is balanced with some “emergency breaks” that allows Member States to seize the European Council when their vital interests in this area are at stake. In those cases an enhanced cooperation is facilitated. Exceptions for the United Kingdom and Ireland are laid down through an opt in/opt out mechanism in order for them to be compatible with development of policy in the area of Justice and Home Affairs.

New legal bases have been added in the fields of energy policy, environment (climate change), sport, tourism, space, civil protection with regard to prevention of disasters of natural or human origin, and administrative cooperation in the application of the law of the Union by the Member States.

GOLD MERCURY INTERNATIONAL Global Governance Policy Series: Human rights and democracy for a globalised world

The European Parliament has become the legislator of the Union, on an equal footing with the Council, and its co-decision powers have doubled.

The progress made in the sphere of Common Foreign and Security Policy has been maintained, including decision-making regarding the creation of a European External Action Service which will assist the High Representative in ensuring the coherence of the external action of the Union as a whole. In this field, article 3 is included among the objectives of the Union in its relations with the wider world, to uphold and promote its values, to contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter. This formal drafting reinforces the policy of including the “democratic clause” in the cooperation and association agreements with third countries and prevents the limitation of the Foreign Policy to “real politik”.

The single legal personality of the Union is kept and the pillar structure disappears, even if the Common Foreign and Security Policy is treated in the TEU and continues to have specific decision procedures.

Democracy and efficiency are reinforced through the substantial extension of the codecision to more than 50 fields, made by the Constitution, which has been maintained completely in the Reform Treaty. Codecision will become the ordinary legislative procedure. The generalisation of codecision will ensure the democratic legitimacy of European legislation.

Decisions in the EU are made by what is known as

The new Treaty reinforces inter-parliamentary cooperation and parliamentary control at a European and national level. The European Parliament has become the legislator of the Union, on an equal footing with the Council, and its co-decision powers have doubled.

the “institutional triangle”, formed by the Council, the European Parliament and the European Commission.

European Commission

They work together to manage the budget and create laws for the EU.

Appoints

Supervises

Council of Ministers

European Parliament

Citizens

Proposes legislation and budgets

Co-decision

Governments

10 GOLD MERCURY INTERNATIONAL Global Governance Policy Series: Human rights and democracy for a globalised world

The decision to consider democracy and human rights as shared values is the cornerstone that has changed the history of the continent, bringing peace, prosperity and solidarity.

The protocol on the application of subsidiarity and proportionality principles gives national parliaments control over the legislative activity of the European Union. On top of the so-called “yellow-card” procedure (if 1/3 of national parliaments express their reluctance on a legislative proposal, the Commission will reconsider it) a new mechanism designed to permit national parliaments to carry out a control of subsidiarity has been introduced: in the event of a simple majority of the national parliaments giving an opinion to the effect that a proposal for a legislative act does not respect the principle of subsidiarity, the Council and the Parliament will have to pronounce thereon by a vote before the first reading in codecision. If one of the two Institutions agrees with the objection of national parliaments, the proposal is dead.

Qualified majority voting becomes the general rule in the Council. Its definition as a double majority of 55% of the States representing 65% of the population (a minimum number of 4 Member States is needed to constitute a blocking minority) is kept, although it will not come into force until 2014. It will also be subject to a 3-year transitional period until 2017, during which a decision can be blocked in accordance with the voting rules set out in the Nice Treaty.

The Treaty develops too the procedure of suspension of membership of a Member State in case of the values referred to in Article 2, in particular democracy and respect of human rights.

This rapid overview of the relationship between the democracies which make up the European Union and the proclamation and effective implementation of human rights, shows that the decision to consider democracy and human rights as shared values is the cornerstone that has changed the history of the continent, bringing peace, prosperity and solidarity. Now the challenge is to support their promotion at world level.

Published in May 2010.

Enrique Barón Crespo (Madrid, 27 March 1944) is a Spanish politician and lawyer. He is a member of the Spanish Socialist Workers’ Party and sits with the Party of European Socialists group in the European Parliament.

ESSEC in Paris. As a practising lawyer, he specialised in labour law, and acted for defendants in political cases.

He was a Deputy in the Cortes, representing Madrid region and was Minister of Transport, Tourism and Communications.

Enrique Barón graduated in law from the University of Madrid and in business at

After election to the European Parliament he was President of the European Parliament

goldmercury.org

and was PES Group chairman from 1999 to 2004. He was Chairman of the Committee on Foreign Affairs and is currently Chairman of the Committee on International Trade.

Mr Barón is a member of the Board of Advisors of the Global Panel Foundation and the International Advisory Board of Gold Mercury International.