A – Introduction
With 68 billion euros spent in 2015 in its Official Development Assistance , the European Union (EU) is the world’s largest aid donor, “providing over 50% of all global development aid” . Such an economic relevance implies that its “development policies have a major impact on the protection and promotion of human rights worldwide” .
The development policy goals of the European Union (EU) are defined in article 208 of the Treaty on the Functioning of the European Union (TFEU) , as amended by the Treaty of Lisbon , which provides that EU’s “development cooperation policy shall have as its primary objective the reduction and, in the long term, the eradication of poverty”. Accordingly, “objectives of development cooperation” should be taken into account in the implementation of external policies. Article 21 (2) (d) of the Treaty on European Union (TEU) , concerning the provisions on EU’s external action, enshrines “sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty” as one of the goals of EU’s actions and policies.
Considering this legal background, references to the pursuit of sustainable development, and to human rights (HR), exist in several EU documents. Nevertheless, the question remains regarding the true meaning of those references. When translating them into effective measures, are HR mere goals, taken into consideration when drafting and, to a lesser extent, when implementing the measures?
In the present essay, I will look into the latest evolutions in the EU’s external development policies, and assess how the legal framework is being implemented. The recent development policies in the field of forced displacement will be given special attention. I will argue that the EU has been developing strategies to ensure that HR work not only as guiding principles – or aspirational values – but also applying them and making them a reality in the receiving countries, even though some issues remain unanswered.
B – EU Human Rights strategies and policies in relation to development – Legal Framework, Principles and Limitations
The EU’s commitment to foster the development in its external relations does not result merely from a political option, but is enshrined in a legal provision, the article 21 (2) (d) TEU. Paragraph (1) of the same article also states that “[t]he Union's action on the international scene shall be guided by the principles which have inspired its own creation”, which are “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”.
Development and HR are therefore entwined in the EU’s mandate. But the latter do not simply set the ground on which the development policies should be developed. Through a human rights based approach (HRBA) to development, the EU has geared its activities in a direction in which HR are not mere “moral considerations” integrated into development policies. As defined by the Office of the High Commissioner for Human Rights, HRBAs are the “conceptual framework for the process of human development that is normatively based on international human rights and operationally directed to protecting and promoting human rights” . Accordingly, HRBAs focus on a development “based on equity, poverty eradication, participation and the redressing of injustices”, being “characterised by key concepts such as participation, empowerment and support for vulnerable and marginal groups” .
This intent is directly expressed in the EU Action Plan on Human Rights and Democracy 2015-2019 . Although the mainstreaming of HR into the EU’s action is not new, the new action plan states the commitment to include “all human rights” in development cooperation, and to “pursu[e] its full concrete integration into all EU development instruments and activities” . HRBAs, it continues, “will be used to ensure that the EU strengthens its efforts to assist partner countries in implementing their international human rights obligations” . Previously, the Tool-box – a Rights-Based Approach, encompassing all human rights for EU development cooperation had already been adopted, setting the guidelines for the application of this approach. It is also expressly mentioned on the legal basis of development financing .
The EU’s development policy is also strongly connected to the United Nations’ (UN) development agenda. The UN’s 2030 Agenda for Sustainable Development shaped the New European Consensus on Development , which represents the EU’s commitment to contribute “to the achievement of the 2030 Agenda” and to implement it in further partnerships with development countries , through a rights-based approach.
The New Consensus encompasses the economic, social and environmental dimensions of sustainable development, and provides “the framework for a common approach to development policy that will be applied by the EU institutions and the Member States” . It should be taken into account that according to article 4 (4) TFEU, “[i]n the are[a] of development cooperation […], the Union shall have competence to carry out activities and conduct a common policy”, which, however, does not prevent Member States from exercising their own activities in said area. This shared competence between the EU and Member States can lead, in extreme cases, to contradictions between the actions in each level. Thus, the New Consensus is also the EU’s attempt to overcome this legal constraint and ensure the coherence of its development policy.
The EU’s development agenda is also influenced by the international situation. Considering the current migration and refugee crisis, it should be noted that the EU has been consistently working towards integrating forced displacement in its “development-migration agenda” , providing a good example of how its rights-based approach is applied in practice.
The 2030 Agenda acknowledges forced displacement as one of the factors “threaten[ing] to reverse much of the development progress made in recent decades” , and calls for the need to empower displaced persons as well as to guarantee “full respect for human rights and the humane treatment” of this particularly vulnerable group. Faced with the ever growing number of forcibly displaced people, the existence of long-term situations of displacement, as well as secondary and multiple displacements, the EU has identified the need to address the issue through a development, rather than humanitarian, approach. Through the adoption of the communication Lives in Dignity: from aid-dependence to self-reliance – Forced displacement and development , the EU created a policy framework geared towards the development of host communities and the protection and realisation of the rights of those in forced displacement situation.
Addressing the issue through a long term strategy, the EU applies the five working principles of HRBA set forward in the Tool-Box – applying all rights (legality, universality and indivisibility of HR); participation and access to the decision making process; non-discrimination and equal access; accountability and access to the rule of law, and transparency and access to information .
Accordingly, the policy design envisaged includes not only civil and political rights, but also economic, cultural and social rights. The inclusion of the protection of personal data in the rights to be granted is an indicator of the universal understanding of HR adopted by the EU, which shows a commitment to overcome the bias towards civil and political rights criticised in previous programs . In this matter, particular attention is given to education , namely to the need to grant “access to full, equitable and quality education at all levels”, going beyond education in emergencies, as a factor of empowerment.
The access to the labour market is also highly emphasised, revealing the link between economic growth and human development. Recongnising the forcibly displaced the right to work is not only seen as a contribution to their human dignity, but also as added value to the host community, which benefits from the expertise and reduces both the financial burden and the parallel economy.
It should also be noted that there is a transversal idea that the assistance should be provided regardless of the legal status of the beneficiariees, hence contributing to an effective equal access . Similarly, particular attention is paid to vulnerable groups (such as women, children, aged or disabled people) in order to ensure they benefit from the measures.
The document also calls for the participation of both the forcibly displaced and the host communities in the formulation of the policies, thus integrating a broad range of stakeholders (particularly local authorities and private entities) in the process, in accordance with what is envisaged in the New Consensus.
This indicates that this long-term, evidence-based, multi-stakeholder approach, designed with the aim of “foster[ing] the resilience and self-reliance of the forcibly displaced through quality education, access to economic opportunities and social protection” builds on the principles set forth by the EU. Nonetheless, despite the real efforts to apply a HRBA to forced displacement, the EU’s action is not immune to criticism, especially regarding the issues of accountability and transparency.
The existence of “discrepanc[ies] between EU discourse and concrete actions towards the goal of making migration a real driver of development for the countries of origin” is a matter of concern. In fact, considering the pressure that the growing number of forcibly displaced populations has put on the EU, on a political as well as economic level, the EU is also pursuing its own interests. If successful, while using “third countries’ development in order to address the root causes of (…) forced displacement” , this development approach might mean a reduction of the number of arrival of refugees and asylum seekers in Europe, hence reducing the social turmoil the recent crisis has caused, especially in the external borders of the EU. A reduction of the economic burden related to immediate humanitarian assistance and the growing pressure on social security systems is also foreseeable. On a political level, it might also allow a period of truce on the relations between EU and the Member States, which has been marked by serious tensions . On the other hand, while other strategies, such as the EU-Turkey deal of 2016 , raised severe critics due to potential HR implications, the development approach allows the EU to preserves its international status as a respected key agent in the HR and development scene.
The effective implementation of the measures through the execution of cooperation agreements is also an issue. The “human rights clauses” included in every agreement celebrated between the EU and third countries provide that “the respect for human rights, democracy and the rule of law constitutes the basis for the agreement and represents the ‘essential element’ of the agreement” , and foresee measures in case of non-compliance. Nonetheless, the coherence of the application of sanctions following the breach of such clauses is hindered, for no application criteria have been defined so far, hence the uncertainty regarding which rights should be violated, or how serious a violation must be, to trigger the application of these clauses. Though already addressed in the 2012 EU Strategic Framework and Action Plan on Human Rights and Democracy , this issue is again raised in the EU Action Plan on Human Rights and Democracy 2015-2019, which calls for improvement in the “coherence in the application of these clauses” . Moreover, it has already been argued that the evocation of these clauses may be linked to the EU’s “commercial and security interests”, and lead by “strategic considerations” , which brings us to the argument made on the paragraph supra.
The question of the justiciability of these clauses also raises concerns. The CJEU has already declared that “each party to the agreement is free to decide whether there may be an infringement” of said clauses, and that they are “free to adopt the measure it regards as being the most appropriate” to deal with violations. On the other hand, the CJEU declared that the HR clauses do not create rights that can be claimed by individuals, even in case of violation . The CJEU has also taken the view that, in the event of human rights violations deriving from actions funded by the EU, the EU can only be held accountable if a “direct causal link” between the funding and the violation alleged can be proved . Though this does not exclude, per se, the liability of the EU for HR violations under cooperation agreements, it makes it, in practice, very difficult for individuals to obtain redress before the courts. This issue is not answered by the adoption of HRBAs, as the local governments remain as the duty-bearers and primary responsible for the provision of rights. The EU is, of course, bound by a duty of due diligence in the execution of all terms of the agreements, but “legal and practical obstacles stand in the way of success” of the judicial enforcement of the EU’s HR obligations.
C – Conclusion
Development is the core of EU external action, and is legally oriented towards the protection and dissemination of HR.
In this essay, I have referred some of the recent efforts undertaken by the EU in order to integrate a rights-based approach in its development policies, which reveal an ever growing commitment to overcome some limitations that had been identified in the past. Globally speaking, the EU appears to be aware of the limitations and criticisms that its development strategy can face, and has consistently worked in order to improve its legal basis and policy framework in order to achieve effective results, and overcome the vagueness that is traditionally associated to HRBA. In particular, the New Consensus is a step forward towards a coherent development policy, to be pursued not only by the EU but also by the Member States, and that, through and wider engagement of the receiving countries, may lead to better outcomes in terms of HR indicators.
I have presented the case of forced displacement as a positive example of an area in which a HRBA has been applied. Even if some flaws can be identified, and if practical results will only be fully identifiable in the long term, this is a good example of how a HRBA should be organized, and represents an attempt to overcome the “often aspirational and prescriptive” content of HRBAs. The justiciability of the human rights clauses, however, remains the main issue still to be resolved.
Despite these shortcomings, the EU remains a pioneer in the application of HRBAs and its ever-growing HR-development system can be seen as an example of good practices for other development agents.