Dynamics of EU-UN Collaboration in Human Rights

This essay critically analyses the European Union’s (EU) engagement with the United Nations (UN) in the field of human rights to explore whether this depicts internationalisation of the EU law or the Europeanisation of International Law. This question arises from the complex relationship between international law (particularly law developed under the aegis of the UN) and EU law, given that both systems provide examples of well developed systems of law. The EU is, like the UN, an international organisation by birth and has become increasingly constitutionalised thereby adopting some features of a state while being an international organisation. Indeed, in the recent times, the interest in how international law and the EU law interact has been depicted in literature as well.

The term ‘Europeanisation’ refers to the replacing of the national legal provisions in a given field with the principles originating in the EU. It has even been described as the “taking of the policy areas to a regional level, beyond that of the nation state.” At the very least, it is understood that the development of law and policy in Europe is a multi-layered process between states in Europe, EU and the international and global levels.

Europeanisation has happened in different aspects of laws, including private international law, wherein Treaty of Amsterdam has played an important role in causing such Europeanisation of laws due to the effects of Article 65 (ex-EC Treaty, and now Article 81 under the TFEU). At the same time, the EU is bound by the rules of international law and the ECJ has time and again reinforced the principle that the EU is bound by the customary international law as well as treaty law. In context of human rights and how EU and UN interact in this field, the starting point can be taken from the adoption of Art 3(5) in TEU, which recognises that “in its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to […] 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.” More importantly, the Lisbon Treaty, adopted by the EU in 2009, has endorsed the legally binding character of the EU Charter of Fundamental Rights, and committed to accession to the European Convention on Human Rights (ECHR). These developments are seen by some scholars as the desirable change within the EU to improve the human rights protections in the EU law.

Two points can be noted here: first, the EU admits to obligations under the UN Charter and international law; and second, the EU recognises the principle that in its interactions with the wider world, it shall promote its values and interests and contribute to the protection of human rights. Therefore, there is an obvious reference to the reconciliation between UN law and EU protection of human rights in Article 3(5). It is also in this context that we can see the way in which the EU interacts with the UN and whether it does at times reinforce European principles of human rights as opposed to UN principles. The respect for human rights is one of the important principles that the founding of the EU is based on and which is also reinforced by Article 67 of the Treaty on the Functioning of the European Union (TFEU).

1. Katja S. Ziegler, ‘The Relationship between EU Law and International Law’ in University of Leicester School of Law Research Paper No. 15-04 (2015).
2. Jan Wouters, André Nollkaemper, and Erika De Wet, The europeanisation of International law: the status of international law in the EU and its member states (ACIL 2008).
3. Nynke Anna Baarsma, The Europeanisation of international family law (The Hague: TMC Asser Press 2011) 6.
4. J van Selm, ‘The Europeanization of Refugee Policy’ in Susan Kneebone and Felicity Rawlings-Sanaei (eds), New Regionalism and Asylum Seekers: Challenges Ahead (Berghahn Books 2007) 82.
5. Ibid.
6. Ibid.
7. Case C-162/96 Racke v Hauptzollamt Mainz [1998] ECR I-3633, para 55; Case C-286/90 Ankagemyndigheden v Poulsen and Diva Navigation Corp [1992] ECR I-6019, para 9.
8. Art 3(5) in TFEU.
9. Dorota Leczykiewicz, ‘Effective Judicial Protection of Human Rights after Lisbon’ Dorota Leczykiewicz, Effective Judicial Protection of Human Rights after Lisbon 35 EUR.L.REV. 326 (2010) 35 Eur. L. Rev. 326.

Despite the general acceptance of EU’s obligations to UN Charter and the international law of human rights, it has been found by some scholars that the ECJ does not usually make references to international law of human rights when adjudicating on issues that involve questions of fundamental rights. This argument is supported by cases that show how the European Court of Justice (ECJ) circumvents the international law of human rights in some cases before it, choosing instead to apply principles that are more grounded in the EU law. More importantly, the most relevant example of internationalisation of human rights, which is the adoption of the European Convention of Human Rights (ECHR), was in Opinion 2/13 of the ECJ, declared as non-accessible by the EU; the court held that the ECHR was not compatible with the Treaty on European Union (TEU). This was a clear indication by the ECJ that support for international law of human rights is not universally accepted within the EU and that this has political and judicial angles. In the context of the ECJ, what can be said is that the court is more concerned with developing an autonomous interpretation of the EU legal order, and that this includes its development of a fundamental rights framework that is European in nature. In this context, it has been stated that the lack of internationalisation of human rights seen in ECJ jurisprudence is driven by domestic-legal factors because ECJ is more concerned about developing a distinct fundamental rights discourse. Does that mean that EU’s engagement with the UN depicts more Europeanisation of International Law as compared to internationalisation of the EU law.

The internationalisation of human rights or constitutional rights has been largely done as a part of the process of judicial interpretation by the ECJ. This is visible in one statement by the ECJ where it notes that it draws “inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories”. As part of the internationalisation process is the consolidation of the EU human rights law by bringing it under the scope of the law of the ECHR; but the ECJ and the EU in general, has largely shied away from consolidation as reflected in its decision to not acceed to the ECHR, as it is thought to pose a threat to the integrity and autonomy of the EU constitutional order. Therefore, it can be said that there is a paradox in how ECJ approaches internationalisation of human rights where on one hand, it accepts that it draws inspiration from the international treaties, and on the other hand, it denies compatibility between EU law and the ECHR. This paradox also colours the way in which the EU interacts with the UN on the question of human rights because just as the ECJ refuses to accept different values or principles in ECHR, it refuses to allow implementation of the UN laws where it finds a contradiction between the UN law and the EU law.

1. Gráinne de Búrca, ‘The Road Not Taken: The European Union as a Global Human Rights Actor’ (2011) 105 A M . J. I NT ’ L . L. 649.
2. For example, M.S.S v. Belgium and Greece, Appl. No. 30696/09, Merits, Jan. 21, 2011.
3. Opinion 2/13, Opinion pursuant to Article 218(11) TFEU — Draft international agreement — Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms — Compatibility of the draft agreement with the EU and FEU Treaties [2014] ECLI:EU:C:2014:2454.
4. B Çalı, ‘Comparing the support of the EU and the US for international human rights law qua international human rights law: Worlds too far apart?’ (2015) 13(4) International Journal of Constitutional Law 901.
5. Elizabeth Defeis, ‘Human Rights and the European Court of Justice’ (2007) 31 FORDHAM J. INT’L L . 1104.
6. B Çalı, ‘Comparing the support of the EU and the US for international human rights law qua international human rights law: Worlds too far apart?’ (2015) 13(4) International Journal of Constitutional Law 901.
7. Márton Varju, ‘European Union Human Rights Law: A Very Particular Internationalisation of Constitutional Rights’ (2018): 463-486.
8. Case 260/89, Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas (1991) EU:C:1991:254, para. 44.
9. Opinion 2/13, Opinion pursuant to Article 218(11) TFEU — Draft international agreement — Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms — Compatibility of the draft agreement with the EU and FEU Treaties [2014] ECLI:EU:C:2014:2454.

An example of the interaction between EU law and the UN law where the last point above is demonstrated is the case of Kadi v Council of European Union, and as significant as this judgment is, it merits some attention at this early point in the essay. Kadi was decided by the ECJ in 2008 where it held that sanctions against alleged terrorists by the United Nations Security Council (UNSC) can be implemented inside the European Community (EC) only if such sanctions are in accordance with the European law guarantees of judicial remedy and fundamental rights. It is admitted that Kadi gave rise to question of whether monist claims of the supremacy of international law based on Article 103 of the UN Charter and Article 27 of the Vienna Convention would override any dualist claims of the legal autonomy of EU law. However, the ECJ held that while the European Community is obligated to respect international law it is also bound by the constitutional prohibition against the breach of European human rights.

Thus, the ECJ chose to read the validity of the community measure enforcing UNSC resolution through the prism of the constitutional rights guaranteed in the EU and found that EU principles of human rights cannot be prejudiced by other international agreements including those of the UN. Thus, in deciding whether UNSC resolution would have primacy over EU law, the ECJ did not take a clear cut approach to monist values, but chose to reconcile the obligations of EC states under international law of the UN with those obligations that arose under the EU law related to human rights. The court further reinforced these principles in Kadi II albeit not by referring to the dualist arguments made out in Kadi I, but by upholding principle of human rights rooted in constitutional principles of the EU.

In order to understand whether the relationship between the EU and the UN has seen more Europeanisation or internationalisation, it is also important to refer to the hierarchy of norms within the EU law and where does UN law position itself in this hierarchy. Although, international law is directly applicable within the EU legal order, it is considered to not rank more above EU primary law contained in its Treaties. Therefore, in terms of hierarchy, EU law ranks below the constitutional law of the EU. It is important to note that the Kadi judgments have created an understanding that there is a hierarchy within the EU law within which “ordinary” primary law and “foundational” primary law of the EU are said to be placed at different levels; thus, foundational constitutional principles allow no derogation and these include the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined which are contained in Article 6(3) of the TFEU. However, this has also meant that UN treaties on human rights have played an important role in EU law through interpretation and an example of the same can be seen with respect to International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

Nevertheless, there is a greater degree of emphasis on European values as compared to international law of human rights in the engagement between EU and the UN in the context of human rights. One of the ways in which an increasingly united European voice on human rights issues in the UN can be seen in the way the EU acts within the UN General Assembly Third Committee and the Commission on Human Rights with evidence that there is a more united voice of the EU on such matters since the early 1990s. It may be noted at this point that there are also competing voices within the EU and these may present instances for some states wanting greater internationalisation as compared to Europeanisation of human rights. On the other hand, the same can be said of states that want greater Europeanisation. Therefore, there is also a political aspect of how and why EU adopts or rejects international law formed under the aegis of the United Nations.

1. Joined Cases C-402/05P & C-415/05P, Kadi v. Council of the European Union, 2008 O.J. (C285) 2,41 C.M.L.R. 1207.
2. Ibid.
3. Ibid.
4. Ibid.
5. Joined Cases C-584/10 P, C-593/10 P and C-595/10 P European Commission et al v Yassin Abdullah Kadi [2013] ECR I-(nyr), judgment of 18 July 2013.
6. Katja S. Ziegler, ‘The Relationship between EU Law and International Law’ in University of Leicester School of Law Research Paper No. 15-04 (2015) 11.
7. Joined Cases C-402/05P & C-415/05P, Kadi v. Council of the European Union, 2008 O.J. (C285) 2,41 C.M.L.R. 1207, para 303.
8. Case C-244/06 Dynamic Medien v Avides Media [2008] ECR I-505, paras 39-41; Case C-540/03 Parliament v Council (Family Reunification Directive) [2006] ECR I-5769, para 37.
9. G De Burca, ‘The road not taken: the European Union as a global human rights actor’ (2011) 105(4) American Journal of international law 649.

Some decisions of the ECJ demonstrate the ways in which the court can contribute to the development of the international human rights law by more open engagement with international law instead of adopting a constitutional autonomy approach like it did in Kadi.

An example can be seen in Aboubacar Diakité v Commissaire général aux réfugiés et aix apatrides, where the ECJ considered the interpretation of similarly phrased concepts of “internal armed conflict” in EU refugee law and in international humanitarian law. The court held that the definition of ‘internal armed conflict’ in the EU law is independent of the one in international humanitarian law as the two laws pursue different aims and establish distinct protection mechanisms. The EU refugee law was concerned with providing protection for civilian populations outside the conflict zone and provides subsidiary protection and the eligibility for such protection cannot be made subject to conditions in international humanitarian law. Through such interpretation, after engagement with the international humanitarian law, the ECJ was able to provide more protection to the appellant than provided under the international humanitarian law.

One of the areas in which we see effects of Europeanisation in context of human rights is international family law. The Treaty of Amsterdam in 1999 granted the EU competence to enact measures in the field of private international law (ex Article 61(c) in conjunction with Article 65 EC-Treaty) with the object to establish an area of freedom, security and justice. These measures were taken further by the TFEU, which formally expanded the legal basis of the EU’s competence to establish private international law measures, based on the need to, inter alia, contribute to attainment of justice.

Another area where Europeanisation of human rights is demonstrated is the law related to rights of refugees. The international law for refugee rights is contained in the United Nations Refugee Convention of 1951 and the Protocol of 1967. The Convention and the Protocol contain a number of rights related to refugee and asylum populations and it is generally accepted as the principal international law on rights of refugees. However, the EU’s engagement with the UN in this context has shown that the former is not always willing to adopt the principles of the refugee law as seen in a case where the ECJ chose to adopt a different interpretation of similarly worded concepts in the EU refugee law and international refugee and humanitarian law. Europe or EU has made efforts to develop what can be called as a Europeanised refugee law and policy, which may not always accord with that provided in the United Nations Refugee Convention of 1951 and the Protocol of 1967, leading to some support for the argument that refugee law is being Europeanised. However, it can also be recalled that the refugee law as contained in the 1951 Convention was itself influenced majorly by contribution from European states at the time that it was first formed. Despite this early influence, it is also admitted that post-colonial world has seen waning of European influence in refugee law, which raises the possibility of exploring current Europeanisation processes.

1. Karen E Smith, ‘Speaking with One Voice? European Union Co‐ordination on Human Rights Issues at the United Nations’ (2006) 44(1) JCMS: Journal of common market studies 113.
2. M.R. Madsen, ‘International human rights and the transformation of European society: from ‘Free Europe’ to the Europe of human rights’ in M.R. Madsen and C. Thornhill (eds), Law and the Formation of Modern Europe: Perspectives from the Historical Sociology of Law (Cambridge: Cambridge University Press 2014).
3. C-285/12 Aboubacar Diakité v Commissaire général aux réfugiés et aix apatrides [2014] ECR I-(nyr), judgment of 30 January 2014.
4. Ibid.
5. Nynke Anna Baarsma, The Europeanisation of international family law (The Hague: TMC Asser Press 2011).
6. Nynke Anna Baarsma, The Europeanisation of international family law (The Hague: TMC Asser Press 2011).
7. J van Selm, ‘The Europeanization of Refugee Policy’ in Susan Kneebone and Felicity Rawlings-Sanaei (eds), New Regionalism and Asylum Seekers: Challenges Ahead (Berghahn Books 2007).
8. Ibid.
9. C-285/12 Aboubacar Diakité v Commissaire général aux réfugiés et aix apatrides [2014] ECR I-(nyr), judgment of 30 January 2014.

Moreover, Europeanisation of refugee law is also relevant in the context of the different refugee or asylum policies that individual European states have developed. One of the manifestations of the Europeanisation of refugee law is seen in the context of the asylum appeals wherein the asylum seekers whose asylum applications are rejected in the national processes can appeal to the European Court of Human Rights. The appeals can challenge the rejection of asylum application at the national level on the ground that the rejection and resultant expulsion may lead to the violation the right of the asylum seeker to not be tortured or to suffer inhuman or degrading punishment which is protected by ECHR, Article 3. There are also directives like the Qualification Directive (Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals) and the Procedures Directive (Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status), which have led to the harmonisation of the law related to refugees within the EU which can also be seen as Europeanisation of the law related to human rights of the refugees.

Europeanisation of human rights is also to be seen in the context of EU seeking to protect times a better human rights mechanism in its own law as compared to the one in the UN human rights treaties. This is well reflected in the decision of ECJ in Opinion 2/13, wherein the Court objected to a Draft Agreement that it held would breach the autonomy of the EU to set up different but higher standards of protection of human rights. Therefore, while the EU recognises its obligations under the international law of human rights under UN treaties, it also seeks to protect its power to make for a better and more effective system through autonomy. Therefore, from the perspective of the EU, it may be argued that greater Europeanisation as compared to internationalisation of human rights may be more aligned to the goal of stronger protection of human rights. This means that for the states within the EU, there has been influx of EU law in the sphere of human rights and not international law so that there is invasion of community law and human rights into national law.

To conclude this essay, it can be said that the interaction between EU and the UN so far depicts more Europeanisation of human rights and not internationalisation of human rights. The Kadi judgments and the Opinion 2/13 of the ECJ are quite clear on not allowing UN law to supersede EU law if there is a better protection for human rights under the EU law. This reflects on two important points relevant to the relationship between the EU and the UN in the context of human rights. The first point is that there is a dualist approach taken to the UN law so that EU law continues to be autonomous and if there is a conflict between the EU law and the UN law on human rights, the former carries more weight in the ECJ jurisprudence. Consequently, there is Europeanisation of human rights as countries within the EU would be bound by the EU jurisprudence. The second point is that the UN law is still relevant and influential because the ECJ has considered itself to be obligated by the international law and even the Kadi judgment does not preclude the application of the EU law. Consequently, international human rights law continues to be relevant to the development of human rights in the EU though not to the extent of EU law’s continuing influence. Therefore, in conclusion what is seen is that instead of greater internationalisation, there is greater Europeanisation of human rights. Two areas where such Europeanisation is seen is in the development of family law and the law related to the refugees, both areas in which EU law has continued to play a role in developing policy and law within the EU which takes a route that may not always align with the UN law contained in treaties in these same areas.

1. J van Selm, ‘The Europeanization of Refugee Policy’ in Susan Kneebone and Felicity Rawlings-Sanaei (eds), New Regionalism and Asylum Seekers: Challenges Ahead (Berghahn Books 2007) 81.
2. Ibid 82.
3. J Wouters, A Nollkaemper, E de Wet, The Europeanisation of International Law. The Status of International Law in the EU and its Member States (TMC Asser Press 2008) 4.
4. Opinion 2/13, Opinion pursuant to Article 218(11) TFEU — Draft international agreement — Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms — Compatibility of the draft agreement with the EU and FEU Treaties [2014] ECLI:EU:C:2014:2454.
5. Thomas Stiegler, ‘Reaching for a Calculator or a Mirror? Why the EU Joins International Human Rights Treaties’ (Department of EU International Relations and Diplomacy Studies 2013).

Books

Baarsma NA, The Europeanisation of international family law (The Hague: TMC Asser Press 2011).

Madsen MR, ‘International human rights and the transformation of European society: from ‘Free Europe’ to the Europe of human rights’ in M.R. Madsen and C. Thornhill (eds), Law and the Formation of Modern Europe: Perspectives from the Historical Sociology of Law (Cambridge: Cambridge University Press 2014).

Stiegler T, ‘Reaching for a Calculator or a Mirror? Why the EU Joins International Human Rights Treaties’ (Department of EU International Relations and Diplomacy Studies 2013).

van Selm J, ‘The Europeanization of Refugee Policy’ in Susan Kneebone and Felicity Rawlings-Sanaei (eds), New Regionalism and Asylum Seekers: Challenges Ahead (Berghahn Books 2007).

Wouters J, Nollkaemper A, and De Wet E, The europeanisation of International law: the status of international law in the EU and its member states (ACIL 2008).

Journals

Çalı B, ‘Comparing the support of the EU and the US for international human rights law qua international human rights law: Worlds too far apart?’ (2015) 13(4) International Journal of Constitutional Law 901.

De Burca G, ‘The road not taken: the European Union as a global human rights actor’ (2011) 105(4) American Journal of international law 649.

Defeis E, ‘Human Rights and the European Court of Justice’ (2007) 31 FORDHAM J. INT’L L . 1104.

de Búrca G, ‘The Road Not Taken: The European Union as a Global Human Rights Actor’ (2011) 105 A M . J. I NT ’ L . L. 649.

Leczykiewicz D, ‘Effective Judicial Protection of Human Rights after Lisbon’ Dorota Leczykiewicz, Effective Judicial Protection of Human Rights after Lisbon 35 EUR.L.REV. 326 (2010) 35 Eur. L. Rev. 326.

Smith KE, ‘Speaking with One Voice? European Union Co‐ordination on Human Rights Issues at the United Nations’ (2006) 44(1) JCMS: Journal of common market studies 113.

Research Papers

Ziegler KS, ‘The Relationship between EU Law and International Law’ in University of Leicester School of Law Research Paper No. 15-04 (2015).

Websites

Varju M, ‘European Union Human Rights Law: A Very Particular Internationalisation of Constitutional Rights’ (2018) accessed

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