Rule of Law: the EU’s chance to make things right

12 May 2020

By Birgit Van Hout, Regional Representative for Europe, Office of the High Commissioner for Human Rights, Brussels

Although respect for the rule of law is a prerequisite for joining the European Union (EU), the independence of the judiciary, transparent and accountable governance, media freedom, and the separation of powers are no longer an unquestioned part of the acquis today. The gradual erosion of the rule of law in recent years is part of a global phenomenon that has found fertile soil in the unprecedented circumstances created by the COVID-19 pandemic.

The EU and its member States have appeared divided and hesitant to counter rule of law regression, despite the rule of law being a core value and cornerstone of the European construct. A coherent approach among the various tools, institutions and member States has been missing. And, despite the rule of law being a precondition for the realization of all human rights and a pillar of democracy, discussions on the rule of law have tended to be artificially compartmentalized.

A new initiative of the European Commission holds the promise of halting and reversing this trend which is deeply damaging to the EU’s international standing. The European Commission has set out to enhance its monitoring of the rule of law in EU member States through a rule of law review cycle. The centerpiece of the initiative is an assessment of the rule of law situation in all EU member States – a report to be issued by the European Commission for the first time in September 2020.

The credibility of the new mechanism depends to a great extent on the assessment being perceived as objective, accurate, fair, and independent. Only a human rights approach that adheres to the fundamental principles of accountability, inclusion, participation, and transparency can ensure this.

What exactly will be monitored? Getting the scope of the rule of law report right is the first challenge. It starts with firmly anchoring the review in international law. While recognizing that the purpose of the rule of law initiative is not and cannot be to monitor all human rights, a piecemeal approach is to be avoided. For example, ‘media pluralism’ will be monitored, but this is only one element of freedom of expression. Likewise, having ‘an anti-corruption framework’ in place is insufficient to guarantee good governance. Equally important for holding the executive branch to account are the freedoms of association and assembly, and the right to participate in public affairs, enshrined in the Universal Declaration on Human Rights over 70 years ago.

Fortunately, there is no need to reinvent the wheel. In his recent Call to Action, UN Secretary-General Guterres urged all stakeholders to make fuller use of the international human rights protection system to meet the challenges, opportunities and needs of the 21st century. UN mechanisms, like the Treaty Bodies, Special Procedures, and the Universal Periodic Review, have been monitoring aspects of the rule of law in EU member States for decades. The new EU initiative should use their findings to the fullest, while exercising caution not to lower the standard these international mechanisms have set.

European Commissioner for Justice Reynders, who is in the driving seat of the first report, is a strong advocate of the UN’s Universal Periodic Review. One of the keys to the success of that process is its methodology: it draws information from multiple sources in a transparent and systematic manner. This allows the reviewer to balance State perspectives with information from international and regional organizations, independent national human rights institutions, and civil society. This transparent and inclusive approach ensures confidence by all stakeholders and, crucially, lends legitimacy to the process. In the case of the new EU review, information from non-State actors could be compiled or summarized by the EU Fundamental Rights Agency, as an independent monitoring body in accordance with its mandate.

Meaningful participation further requires that individuals or groups who contribute information are protected from reprisals. In 2019, the UN Secretary General’s report on reprisals for cooperating with the UN on human rights listed three EU member States. Staff from national human rights institutions, equality bodies, journalists, activists, and others must be able to speak out in safety. The EU should create a mechanism to prevent, monitor and address intimidation and reprisals against those submitting information to the process, including by ensuring swift protection in case of emergency. The EU’s flagship Protect Defenders program, under which since 2015 more than 30 000 human rights defenders in third countries have received some form of protection from the EU, can serve as a model. This is essential not just for the effectiveness of the rule of law initiative; it would also demonstrate that the EU is consistent in its intention to uphold the flame of human rights, whether at home or abroad.

Having collected data and information from various sources, the EU will need reliable indicators to assess if the legal standards for the rule of law are being met or not. The UN’s validated human rights and rule of law indicators are used around the world and UN Human Rights stands ready to provide technical assistance to the European Commission on the practical use of these indicators. Relevant targets of goal 16 of the Sustainable Development Agenda, which all EU member States have committed to achieve by 2030, also allow to measure rule of law results through objective, internationally agreed indicators.

If the new EU initiative is robust, transparent, independent, participatory, and advances accountability, it could become a game-changer and a beacon for right-holders across the Union. It could help to break the political deadlock in the European Council. It could provide a strong basis for infringement procedures and for rule of law conditionality to EU funding for member States. It could spur a more joined-up approach between the European Parliament, the European Commission, and the European Council. It would show the world that the EU and its member States are serious about the interlinked values of democracy, human rights, and the rule of law. Done properly, the EU’s new initiative could be the most significant act the European Commission has ever taken in its role as guardian of the EU Treaties and, with it, as guardian of people’s rights and freedoms.