Cazenave, P. S.: The EU, Human Rights and a Neighbour called Moldova, 2009

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In many regards, the European Union (EU) is founded today on common values shared and/or accepted by its Member States. The ideological foundation on which this supra-national entity is based is not only a source of pride but also a duty that its citizens are deeply concerned about preserving.

Overview of EU and Fundamental Rights

The creation of the European Communities was not intended to ensure an efficient system of protection of Human Rights to the nationals of its Members States, but to ensure a viable market economy, based on liberalism, with a view to create solidarities between European economies. It is without saying that the matter at that time was not to focus on Human Rights protection, especially when the European Communities had neither a political dimension nor prospects.

The first steps of Human Rights protection at EU level occurred twelve years after the signature of the Rome Treaties and were taken by the European Court of Justice through the concept of General Principles of Community Law.

The General Principles of Law are the result of the judicial activism of the European Court of Justice (ECJ) despite the initial liberal economic vocation of the European Communities. They started to be created by the ECJ in 1969 in the Stauder case, drawing on constitutional traditions common to the Member States and from the diverse international instruments governing Human Rights to which Member States have acceded.

The Treaty on the European Union, born in 1992 and as amended by the successive reforms leading up to Nice, decided to integrate the case law of the Court into the Treaty in its Article 6: “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States”.

Its second paragraph adds:  “The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law”.

This integration, which can be considered as the recognition of the case law acquis, is not fortuitous. The creation of the European Union, based on three pillars (among which are the Foreign and Common Security Policy and the Justice and Home Affairs) gives a political dimension to the EU and necessarily entailed the inclusion of democratic principles and Human Rights provisions in the body of the Treaty, which build the basic constitutional Charter of the recently born Union.

Although the fundamental human rights already benefited from an adequate protection, the exclusion of such provisions would have been a great gap, especially when we know that the Second pillar on Foreign and Common Security Policy excludes the competence of the ECJ to control acts voted by the institutions.

The recognition of Human Rights within the EU was also boosted after the Council of Cologne in June 1999 were the Head of States called for a convention (composed of Representatives from the Head of States or governments, the European and national Parliaments and the Commission), to “codify” the principles recognized within the EU legal Order, and to expand the scope of protection to other rights. The results of the convention led to the European Charter on Fundamental Rights that was proclaimed in September 2000, at the Nice Council.

The Charter was drafted as a response to the opinion 2/94 of the ECJ on the accession of the EU to the European Convention on Human Rights that refused accession on the ground that no legal basis allowed the EU to accede. Although the Charter was denied a legally binding status that would have made it a direct source of Law, the Court progressively tended to refer to the Charter in its decisions.

To this regard, the Treaty on the European Union as amended by the Treaty of Lisbonif ratified by all Member States, in its article 6 § 1 there is a direct reference to the Charter making it a legally binding instrument. Although not incorporating the Charter in the body of the Treaty as its predecessor did, the Treaty of Lisbon paves the way for a reinforcement of the protection of Human Rights in the EU.

Hence, the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law annexed by the Treaty of Amsterdam and the consolidation of the Human Rights references in the Treaty drawing on ECJ’s case law provides the EU with a satisfying corpus of norms designed to protect its values and to protect the fundamental individual rights of its citizens.

However, the EU is not only a regional actor whose rules are intended to reach its Member States and their nationals, but it also displays a willingness to play a role in the international scene as expressed in the European Security Strategy.

Through different external policies, EU legislation and action can have an impact on its partner countries and their nationals, on the international organizations to which the European Community is a party, and, more effectively, on its neighbours. This impact can be envisaged as positive when the EU is trying to promote and project the values it adheres to beyond its borders.

The EU external activity

These values are reflected by the various external instruments that the EU has created so far to enhance its relations with third countries or international organisations.

The EU cultivates external trade relations with numerous countries and the European Community is a party to the World Trade Union as the External Commercial Policy belongs to its general competence under the article 133 of the Treaty establishing the European Community. Under this article also fall bi-lateral or multi-lateral agreements ranging from commercial or free trade agreements to food aid.

The article 300 of the Treaty establishing the European Community is also providing a legal basis upon which the European Communities are developing external relations.

For example, as the EU and most notably some of its Member States wanted to preserve or establish strong ties with former colonies, they concluded several agreements to this regard, one of the most relevant being the Cotonou agreements signed the 23rd of June, 2000 and replacing the first cooperation convention (Yaoundé Convention) concluded in 1964 that was prolonged by the four Lomé Conventions, the last one expiring on the 29th of February, 2000.

The pre-accession partnerships also concluded between the EU and Central and Eastern European States fall under the scope of article 310. This particular method was reproduced for the Western Balkans through a different programme: the Stabilization and Association Process (SAP). This needs some clarification as it will provide a good basis for future developments.

After the accession of ten new EU countries in May 2004, followed by Bulgaria and Romania in January 2007, the EU pre-accession policy was considered to be the best and most effective external policy instrument in promoting reforms beyond EU borders. Based on the success of this policy, EU leaders decided to reproduce the experience with its Balkans counterparts and established a similar framework to promote peace and stability at its borders. Financed through the CARDS program, the policy towards Western Balkans is largely inspired by the pre-accession policy developed towards the former ten Central and Eastern European candidates that became members, the same being true for Cyprus and Malta.

Drawing on this success story, this policy has been promoted towards the Western Balkans as they have been recognised as candidates countries (for Croatia in June 2004 and FYROM in 2005) or have a prospect to become EU Member States according to Article 49 of the Treaty on the European Union and as mentioned during the European Council of Feira in June 2000.

One of the reasons why this policy has been so successful resides in the prospect of enlargement. It is recognised as a highly motivating factor to prospective Member States in achieving compliance with EU requirements. However, the situation in the Western Balkans is different than that of the ten other countries that joined the EU in 2004, and the accession perspective in this area is facing other problems, following a war situation with initial conditions that were not facilitating the transitional process. The EU policy was thus designed to tackle the problems of the Western Balkans with a specific process: the Stabilization and Association Process (SAP). It is a tailor-made, progressive approach that takes into account the individual situation of each country with stronger incentives for the region, but also more demanding conditions regarding political and economic development and regional co-operation. Among the SAP, the respect of the Copenhagen criteria is a priority.

Here one has to note the importance of the compliance of each country’s policy with the European standards, in the SAP framework, due to the conditionality as set out in the Copenhagen criteria: a non compliance would likely call off the negotiations.

The differentiation principle also has to be highlighted, which implies that all countries will have to take an autonomous action plan and will be assessed separately, according to the pace of their respective reforms and the progress they will have accomplished.

The diversity of the external action of the EU is characterized by the multiple instruments it has designed to defend its international interests, or, to some extent, to provide help to third countries in need.

Beyond the SAP and other foreign policies, the attitude of the EU towards its neighbours is of particular importance. Its Eastern and South Mediterranean partners are neighbours, meaning that they share a land or a maritime border. It is in the EU’s interests to have at its borders stable states where trans-national organized crime is not flourishing, with democratic institutions and respect for the Rule of Law. A conflict at the doorstep of the EU could potentially have negative impact on the EU itself.

However, the different waves of accession pushed the borders of the EU to the East, and reached particularly vulnerable countries subjected to de-stabilising factors such as organized crime or separatist movements. The concern of the EU is thus legitimate and the need for a new policy to ensure stability at its border and at the same time reach the objectives set out in the European Security strategy (closely interlinked to this new policy) arose.

Can the EU Neighbourhood Policy (ENP) foster democratization, and enforcement of Human Rights principles outside its borders?

Is the method, capitalizing on the pre-accession experience, adapted to the context of the countries the ENP is targeting, especially when there is no prospects of accession?

The purpose of the present paper is to give a brief overview of the ENP by addressing some of the issues it tackles when they relate to Human Rights, and to shed the light on the situation of Moldova.

A closer look to the recently published country reports in March 2008 can help us in determining whether the ENP has proved so far to be a powerful engine of reforms, or, if almost 6 years after its act of birth, the pace of reform remains unsatisfactory. The first part will provide an overview of the method of projection of the norm in the ENP framework, and the second part will focus on the Moldavian case.

The EU neighbourhood policy: between succession and secession

Towards a progressive "autonomisation" of policy

If the Lisbon Treaty enters into force, the new article 21 § 1 of the TEU will be of particular significance to the new dimension of the EU’s external action. It will provide that “the Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: 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. »

The second paragraph continues by setting some priorities to EU external action such as: “safeguard its values, fundamental interests, security, independence and integrity; consolidate and support democracy, the rule of law, human rights and the principles of international law; preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders” .        

Also, the preamble of the Treaty on the European Union is particularly symptomatic, recalling to us “the historic importance of the ending of the division of the European continent and the need to create firm bases for the construction of the future Europe”.

This apparent will to contribute to the end of the division of the European continent, to contribute to Human Rights protection, democracy and the rule of Law in EU’s external action, coupled with the successive waves of enlargement and the need to re-launch the Euro-Med partnership, led to the formulation of a new external policy by the Commission in March 2003, the European Neighbourhood Policy (ENP). The enlargement of the Schengen space and its consequences is also, to this regard, of particular relevance.

Formerly based on the article 310 of the Treaty on the European Union, the article 8 of the TEU as amended by the Lisbon Treaty will provide a new legal basis for the ENP. The move towards autonomy of this policy reflects not only the importance that EU leaders want to grant to the ENP, but also, from a systematic interpretation, the role that the ENP is to play in the future of the EU’s external relations.

Article 8 provides that: “1. The Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation.

2. For the purposes of paragraph 1, the Union may conclude specific agreements with the countries concerned. These agreements may contain reciprocal rights and obligations as well as the possibility of undertaking activities jointly. Their implementation shall be the subject of periodic consultation”.

The birth of the ENP is to be found in the communication Wider Europe – Neighbourhood: A new framework for relations with our Eastern and Southern Neighbours of 11th March 2003, in which the European Commission highlights the necessity of adoption of a new external policy tool to cope with the new challenges that the enlargement entails beyond the future EU borders.

Many other communications have followed since and it is not necessary to list them all as they have been widely commented. However, some points deserve to be recalled.

Institutional framework

The design of the ENP (European Neigbourhood Policy) was first detailed by the communication of the commission of May 2004, which first set a development strategy. This strategy sets out the basic principles and the direction that the EU is to take in conducting bi-lateral negotiations to draw up Action Plans with partners but also in fostering regional and sub regional integration.

The relations are governed by the same principles that were (or are within the SAP) in use with the former policies: differentiation, conditionality and a benchmarked and progressive approach.

No need to come back on these notions but at a glance one can note that while the EU claims that the ENP cannot be a “one-size-fits-all-policy”, its institutional framework does not show much innovation and flexibility improvements compared to the previous instruments in spite of different situations and different perspectives. Some authors considered it a “moderately innovatory policy”. Moreover, the light is put on a closer economic integration with the EU as the main benefit of the partner country that must comply with the acquis communautaire, the latter offering « a well established model on which to establish functioning markets and common standards » in a broad range of sectors. The content of the policy, requiring enormous effort from the partner countries to “nationalise” the EU rules, is thus the same but differs in the result: there is no prospect of accession. Thus the power of persuasion of the policy resides in one sentence: “In return for concrete progress demonstrating shared values and effective implementation of political, economic and institutional reforms, including in aligning legislation with the acquis, the EU’s neighbourhood should benefit from the prospect of closer economic integration with the EU », meaning that they would be rewarded with the four freedoms. Can this reward be a powerful lever for democratic development and Human rights progresses? One can remain dubious in front of this assertion.

Besides, its institutional framework is closely functioning as the previous instruments, based on pre-existing agreements. For the Mediterranean Partners, the Association agreements (AA) and the regional framework offered by the Euro-Med Partnerships, and for the Eastern EU Neighbours, Partnership and Cooperation agreements (PCA). All ENP partners have concluded Association Agreements or Partnership and Cooperation Agreements, on a bilateral basis.

On this basis, the ENP Action Plans, cornerstones of the relations between the partner and the EU within the ENP framework, are to supplement these already established relations but not to override them. However, if progresses are achieved and the need for enhanced relations arise,  the European neighbourhood agreements can then be concluded and would then supersede the existing framework to further the relations between partners and the EU.

A multi-faceted nature

Furthermore, the ENP has a multifaceted nature. It envisages a bi lateral relation between the partner country and the EU and its Member States but is also eager to contribute to the development of a regional cooperation that could lead to sub regional integration. Even though we will not discuss the relations between the EU and its Mediterranean partners, it is worth noting that such a regional cooperation system already existed under the framework of the Barcelona process and the Euro-Med partnership, launched the 28th of November, 1995. At the Eastern border of the EU, no regional framework of cooperation was in place at that time but one has recently been developed covering « only specifically crosscutting, regional issues, challenges and responses » and complementing the national-level programmes pursuing the ENP objectives.

A financial tool has been created to support the implementation of reforms leading to compliance with EU regulations, the European Neighbourhood and Partnership Instrument. As for the previous instruments dedicated to the pre-accession policies or SAP, this new instrument does not show an important level of change. This tool is complemented by the action of the European Bank for Reconstruction and Development as well as the European Investment Bank that can grant facilities for countries in order to support specific initiatives.

In order to monitor the actions undertaken by the partners, the commission, as it was previously the case, assesses the progresses made through progress reports and decides whether the relations can be enhanced or not. In the absence of any progress, especially for Human Rights and Democratic Principles, no opportunities will be offered, as it is recalled in the ENP strategy of 2004: “key benchmarks should include the ratification and implementation of international commitments which demonstrate respect for shared values, in particular the values codified in the UN Human Rights Declaration, the OSCE and Council of Europe standards”

Through an overview of the progress reports and the National Action Plan for Moldova, we can draw conclusions on whether the ENP has been so far a powerful engine for reform with his poorest neighbour.

Moldova within the European Neighbourhood policy

A specific context

Firstly, it seemed unworthy to focus our study on Belarus as the EU “called off” negotiations due to the nature of the regime and the serious Human Rights violation that occur in this country. As long as this regime will stand, the participation of Belarus in the ENP should not be anticipated, first and foremost because it would be paradoxical that an authoritarian ruler would accept to foster democratic principles and transparency that could lead to the collapse of his regime.

Ukraine’s case could also be under review but the particular relation cultivated with the EU and the re-launchment of the partnership to a particularly advanced stage has resulted in our decision not to focus on it.

The case of the three Caucasus countries, which joined the EU neighbourhood policy in 2004 is particularly interesting, first because it has not so far been addressed and second because of the particular transition that those countries are experiencing due to their high vulnerability. However their too recent inclusion in the policy does not lay the foundation for a viable study.

The situation of Moldova, a country belonging with Belarus and Ukraine to the Union’s land borders, and the poorest EU partner in terms of GDP per capita within the neighbourhood policy, and a state particularly vulnerable due to the internal division of its territory, deserves a closer look.

Moldova through the riddle

The contractual relations between the EU and Moldova started in 1994 with the signing of a Partnership and Cooperation Agreement, establishing a joint committee to negotiate and implement the agreement: the EU-Moldova Cooperation Council. The agreement entered into force in 1998. A European Neighbourhood Action Plan was signed in early 2005 setting out the general reforms that were to be conducted by the Moldovan authorities in the short and medium term.

Three years later, a report was issued at the beginning of 2008 to assess the progresses made on the path of reform. According to the report, the EU is globally very satisfied about the pace  and willingness that Moldova is showing in implementing reforms.

As for the Democracy and Rule of Law chapter, the report is positive, as an action plan for combating corruption was adopted and the UN convention against corruption was ratified. Furthermore, a Centre for Combating corruption and economic crimes was created and acts as the “main government agency for fighting corruption”. To this end, the additional protocol to CoE Criminal Law convention was adopted.

Also according to the commission, “local elections in June 2007 were generally well administered and offered voters a genuine choice, although some shortcomings were noted, in particular in respect of equitable access to the media for all candidates”, Moldova “strengthens its democratic institutions. This includes, legislative measures related to parliamentary reform and local self-government”. The EU takes as a support the voter turnout that can be a good indicator of “the level of confidence of the citizens” towards their institutions.

When it comes to Human Rights, Fundamental Freedoms and Democratic principles, the rhetoric is still positive.

Moldova is implementing a National Human Rights Action Plan for the period 2004-2008, through which many different international Human Rights conventions and protocols were ratified.

In addition, the government of Moldova took action with regard to freedom of religion, anti-discrimination as well as the integration of minorities to support the Roma population. Human trafficking has also been an issue of discussion and improvement, as well as a closer cooperation with the Committee for the Prevention of Torture, a body of the Council of Europe which monitors inter alia conditions of detentions.

The report also highlights that the implementation of the judgements made by the European Court of Human Rights are not sufficient, although the government took some steps to improve the situation.

Child care systems and issues related to mentally disabled persons were also positively assessed by the European Commission as well as other Human Rights bodies such as the CoE and the OSCE.

The participation of women in public debates and political life has also been subject to positive comments as well.

Finally, regarding collective action, a law on Trade Unions is under implementation while the Republic of Moldova ratified 38 International Labour Organisation conventions.

The positive image painted by the European commission can however be questioned regarding several cases and reports issued by professional and internationally recognized Human Rights NGOs and bodies.

With regard to the torture issue, Amnesty International pointed out the frightening situation stating that “Moldova is failing to fulfil its obligations under international Human Rights Law to ensure individuals’ right to freedom for torture and other cruel, inhuman and degrading treatment”.

The report highlights that despite the efforts made in the ratification of major international instruments, torture is still widespread and no adequate protection or recourse to justice are in place.

Concerning corruption, the recent polls and reports conducted by Transparency International underline the serious allegations according to which corruption is still very common. The rating of Moldova, although improving with regard to 2007, remains worrying as Moldova is in the 109th position in the world ranking of most corrupt states. An article by Karen Ryan points out the serious situation drawing on a report from Transparency International and demonstrating that “Moldavians are forced to hand over bribes 80,7 % of the times they want visas and in 57,2 % of all customs related matters”.

On a regional scale, Moldovan corruption rating remains in a better place than its eastern neighbours Ukraine and Russia (respectively 134th and 147th), but in a worse position compared to its EU neighbours Romania and Bulgaria (70th and 72nd).

A more general concern on Human Rights is also expressed by the United Nations on Moldova’s record on Human Rights. As Jason Cooper notes in his article, the spotlight is put on Moldova’s Human Rights failings. This differs completely with the general positive image the EU drew in its 2008 Progress Report.

However, global Human Rights NGOs praised the Republic of Moldova for its combat against Human Trafficking, a plague for this region, and notably for its accession to the CoE Convention on Action against Trafficking in Human Beings.

Although the EU is keen to play a crucial role in the democratic development of its neighbours, to pave the way for a successful protection of Human Rights at its door step, to actively contribute to the resolution of the Transdniestrian conflict and to assist with the strengthening of the rule of law and the independence of the judiciary, these achievements cannot be realised in four years. The absence of prospect for enlargement certainly has an impact on the power of persuasion of its norms in achieving compliance, and a “more” tailor-made approach with a flexible institutional framework should be adopted to address the challenges that Moldova is to face in the future. The “succession” of external policy tools with the same structure, content and institutional framework for different political, cultural and economic contexts might hinder its effectiveness.

The picture drawn by the EU in its reports does not always represent an accurate image of what really happens, and between the lines there are always some vague admissions stating that some progress still has to be made.

The economic dimension is however more successful, with free trade areas that are under discussion, in line with WTO rules. The EU knows that development passes by economic development, and the same is true for the democratic principles to progress.

One can then consider that the situation of Moldova is still unsatisfactory, that after four years of existence of the ENP, serious Human Rights violations still are occurring. However, although the formal adoption of a convention through the ratification process is not an insurance against Human Rights and democratic principles violations, it is still a first step and reasonable achievement to convince a government to ratify binding international instruments and to create structures in charge of those fundamental issues.

The effective implementation of these conventions leading to a respectful national human rights protection system is not a short-term job, and we have to keep in mind that in some older democracies, work also needs to be undertaken.

It took more than 50 years to build a successful Human Rights protection system, it might take that time for the EU to project its values beyond its borders and make the protection of Human Rights in the partner country as efficient as it is within its own borders.