The EU often faces criticism for conducting an inconsistent and arbitrary human rights policy. This critique is misguided and overlooks a more fundamental problem with the policy, argues Johanne Døhlie Saltnes: that it tends to be executive-driven, precluding the participation of individuals and affected groups
The EU is often accused of being an inconsistent foreign policy actor. Critics hold that the EU approaches its ‘friends’ or important allies in one way, and less ‘important’ partners in another. This is often the charge against it when it comes to human rights. While some countries are sanctioned for human rights violations, others escape public censure or economic punishment.
Critics hold that the EU approaches its 'friends' or important allies in one way, and less 'important' partners in another
Scholars often take these discrepancies as a sign of the EU acting in a self-interested way. My recent book revisits this issue. In it, I argue that we give too much credence to this explanation of EU human rights policy. More often, the EU avoids resorting to human rights sanctions because of what we might call a colliding normative concern.
Let me give an example. The EU has, since 2013, engaged in high-profile promotion of LGBTI human rights. When Uganda introduced a harshly repressive anti-LGBTI law in 2014, several of Uganda’s development partners suspended aid to the country. These included the US, Norway, the Netherlands, and Denmark. Yet the EU decided not to suspend its aid. Instead, it stepped up support for civil society actors.
The individual countries sought to censure the Ugandan authorities. They wanted to send a strong message to Ugandan authorities and their home constituencies: they would not stand idly by in the face of LGBTI human rights violations. The EU, by contrast, acted in line with another concern. It wanted to ensure it didn't negatively influence the situation for human rights activists and affected parties on the ground.
EU policymakers faced a normative dilemma. They could signal their disagreement with Uganda’s actions through discontinuing finances. This ran the risk that Ugandan authorities might make the situation even more difficult for those affected – by closing down LGBTI-friendly health services, for example. Or, they could continue financial support to Uganda and voice dissatisfaction in diplomatic meetings behind closed doors, without exerting economic pressure. The EU opted for the latter.
The example above is not a one-off. Rather, norm collisions or normative dilemmas are typical determinants of international politics. For instance, in its global climate diplomacy, the EU faces different understandings of climate justice. Such ‘normative battles’ have helped change the EU’s approach to international climate negotiations. Formerly, it applied a top-down approach, arguing for legally binding emission reduction targets. Now, it adopts a bottom-up approach, in which each state defines its own target.
Normative dilemmas create conditions for EU policies. Apparent ‘inconsistency’ is, in fact, intended and justifiable
What this also means is that normative dilemmas create conditions for EU policies. Apparent ‘inconsistency’ is, in fact, intended and justifiable. Inconsistencies are not necessarily evidence of arbitrary decisions; rather, those decisions might be meaningful with reference to other human rights concerns.
The EU aspires to conduct a rights-based development policy. In doing so it has made a commitment to make human rights part and parcel of its external relations. How to promote human rights, however, depends on contextual factors. It requires the EU to step away from standardised solutions and adopt a differentiated approach.
Hence, the debate about arbitrariness and inconsistency should really be a discussion about whether the EU is engaging in a meaningfully coherent way. We should not measure the EU’s performance according to consistency (strictly understood). Instead, a standard of ‘meaningful coherence’ would focus on the extent to which the inconsistencies are justifiable, and meaningful.
The EU, I argue, manages more often than its member states to strike this balance and act in a meaningful, coherent way. But that doesn't mean there isn’t room for a critique of the EU’s rights-based approach.
My research shows that the EU had meaningful reasons for not using human rights sanctions on several countries, including Uganda. But I also show that the process through which it reaches these decisions is too often executive-driven. Before adopting human rights sanctions, the EU engages in dialogue with the violating state through political dialogue and dispute settlement. Article 96 of the Cotonou Agreement is one example.
the process through which the EU reaches its decisions on sanctions is too often executive-driven
However, these dialogues and arbitration meetings remain in the hands of national executives and the EU’s supranational institutions. This cuts out individuals and affected groups from meetings that determine the EU’s, and the affected country’s, approach to the violation. The EU does sometimes consult with affected stakeholders in bilateral meetings. Yet those affected are denied a seat at the table in the meetings that determine how to resolve the situation.
In the realm of human rights, only executive actors have the right to initiate arbitration. However, this is not a pattern across all EU policy-making areas. For example, in the Trade Barriers Regulation, companies and industry associations can issue a complaint to the Commission ‘alleging violations of trade obligations’. Affected parties can thus influence the decision on when arbitration is required. Hence, the EU could design a similar feature in its human rights dispute settlement mechanisms. This would allow affected parties to request actions when their rights are violated.
Arguably, then, the most pressing issue for the EU in relation to human rights policy is not so much arbitrariness and inconsistency. Rather, it is a rights-based approach that is too government-focused in so far as it denies individuals and affected groups participative rights. In the newly agreed post-Cotonou agreement, which will run for the next 20 years, dispute settlement remains a bilateral issue restricted to EU and government officials.
Thus, when post-Cotonou is up for review, the EU and its partners need to think big. They must design features for their human rights dispute settlement mechanisms that avoid the bilateral character of consultations – and secure affected parties a seat at the table. That in itself would be a meaningful outcome.
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