The new Global Strategy for the EU's Foreign and Security Policy at a time of human rights crises

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Author	Veronika Haász,Chiara Altafin,Karolina Podstawa
Published date	01 June 2017
Date	01 June 2017
DOI	http://doi.org/10.1177/0924051917708379
Subject Matter	Articles

Article

The new Global Strategy

for the EU’s Foreign and

Security Policy at a time

of human rights crises

Chiara Altafin

European Inter-University Centre for Human Rights and Democratisation (EIUC), Venice, Italy

Veronika Haa

´sz

European Inter-University Centre for Human Rights and Democratisation (EIUC), Venice, Italy

Karolina Podstawa

European Inter-University Centre for Human Rights and Democratisation (EIUC), Venice, Italy

Abstract

This article explores whether the Global Strategy for the EU’s Foreign and Security Policy adds

new significance to the human rights commitment spelled out in EU Treaties and elaborated in

other sectoral, strategic documents. In particular, it investigates whether the Strategy’s take on

human rights continues or complements the Union’s earlier approach in the field or prioritises

them in the Union’s activities. The article commences with an identification of the modalities

through which the new Strategy voices human rights both as values and objectives in EU external

policies. This is done against the background of coherence and resilience as organising concepts of

the Union’s external action and the Global Strategy itself. It goes on to draw from our research

findings of three case studies as focused on the EU human rights and rule of law failure at home

(Poland and Hungary), at its borders (in relation to migration), and in its closest vicinity (Ukraine).

These serve as the background for the analysis of how the pursuit of human rights objectives is

continued, complemented or prioritised against the background of and with the use of the two

foundational concepts. It is contended that coherence and resilience advance (if at times modestly)

the existing EU human rights agenda, continuing earlier approaches (for example, ensuring a

comprehensive human rights approach to conflict and crisis) or complementing them (for example,

using and investing in all instruments aimed at conflict prevention, management, resolution and

stabilisation; connecting the internal and external spheres and policies). The migration policy

Corresponding author:

Chiara Altafin, PhD, European Inter-University Centre for Human Rights and Democratisation (EIUC), Venice, I-30126,

Italy.

E-mail: chiara.altafin@eiuc.org

Netherlands Quarterly of Human Rights

2017, Vol. 35(2) 122–143

ªThe Author(s) 2017

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remains a problematic one, as the implementation of the rhetorical commitment to the prior-

itisation of human rights does not stand trial with the general atmosphere in European and world

politics.

Keywords

global strategy, coherence, resilience, human rights, crises, European Union

Introduction

The long awaited document ‘Shared Vision, Common Action: Stronger Europe – A GlobalStrategy

for theEuropean Union’s Foreignand Security Policy’(EUGS), elaboratedin collaborationwith a vast

range of stakeholders, was presented to the broad public in June 2016. Overshadowed by the Brexit

referendum of 23 June 2016, it evoked at first modest reactions.

Conceived of as the descendent of

the EU 2003 Solana’s Security Strategy,

the EUGS has been repeatedly analysed from the

perspective of its projection of the EU’s role in the future of world relations.

Its position vis-a

vis the human rights commitment (as well as competences) of the EU has not been so far analysed.

The EU has developed, indeed, a unique commitment to human rights, culminating with the

Lisbon Treaty, which conferred legally binding force on the Charter of Fundamental Rights and

which listed human rights among the Union’s foundational values.

In the same Treaty, human

rights framed the Union’s external action as a founding value to be upheld and promoted, as a

guiding principle, and as an objective to be consolidated and supported when defining and imple-

menting its external policies and actions.

After great effort on the part of the High Representative

of the Union for Foreign Affairs and Security Policy (HR) and the European External Action

Service (EEAS) to present the comprehensive framework for the EU’s external human rights

policy in 2012,

one would imagine that the new Global Strategy would provide the answer as

to the position of human rights both as values and objectives of EU external action vis-a

`-vis other

interests.

This paper explores whether the EUGS adds new significance to the human rights commitment

spelled out in the EU Treaties and elaborated in other sectoral, strategic documents. In particular, it

investigates whether the pursuit of human rights objectives (implicitly or explicitly) in the new

Strategy continues or complements the Union’s earlier approach in the field or prioritises them in

1. It was discussed in the European Council meeting on 28 and 29 June 2016.

2. Council of the European Union, ‘A Secure Europe in a Better World: European Security Strategy’ (12 December 2003).

3. For the result of the EUGS Consultation process, see EUISS volume at

analysis?type¼comment> accessed 12 April 2017. See also the reactions published in the 2016 December issue of

Contemporary Security Policy.

4. The human rights commitment of the EU is undertaken in policy and legal documents, whereas the human rights

competences of the EU are those emerging when the EU takes action in the policy areas concerned. Moreover, in various

policy fields, human rights are legally enforceable before the Court of Justice of the European Union. For the purpose of

this paper ‘EU human rights’ encompasses the external and internal dimensions of the policy.

5. Article 2 TEU, Article 6 TEU.

6. Article 3 (5) TEU, Article 21 (1) TEU, Article 21 (2)(b) TEU.

7. EEAS, ‘EU Strategic Framework and Action Plan on Human Rights and Democracy’ (25 June 2012) 11855/12; Council

of the European Union, ‘Council Conclusions on the Action Plan on Human Rights and Democracy 2015 – 2019’ (20

July 2015) 10897/15.

Altafin et al. 123

the Union’s activities. Accordingly, practical implications for EU human rights related policies in

the next decade are also explored. It will be up to the EUGS Action Plans (by now awaited) to

determine the specific measures through which the EU will engage with such commitment, making

use of its competences in the area of human rights.

One should consider that both the entire EUGS as well as its human rights dimension have been

corroborated in the specific context of the EU being challenged on multiple fronts. Both from

within (for example, the Hungarian and Polish constitution al crises and the Brexit campaign,

which ended with a negative result hard to anticipate at the time of the publication of the EUGS)

and from without (for example, the migration crisis, the conflict between Ukraine and Russia, the

rise of ISIS, and the failure of the Arab Spring). The ensuing crises can be branded, inter alia,as

human rights ones, since they challenge the human rights core of the EU as a construct and its

policies. The mentioned crises constitute a centrepiece of the new Strategy; in fact, one could argue

that the EUGS, instead of projecting the EU’s role in the future, portrays more accurately the

present moment. The authors have voiced their response in the identification of two concepts that

echo throughout the document: coherence and resilience, which are to underlie the EU foreign

policy. They will be screened from the point of view of their utility for the human rights cause.

The analysis will progress in two steps. First, the modalities through which the EUGS voices

human rightsboth as values and objectives in EU externalpolicies are identified. Thisis done against

the background of c oherence and resilience as organ ising concepts of the Union’s exter nal action and

the Global Strategyitself. The second part of the paperdraws from our research findings of threecase

studies as focusedon the EU human rights and rule of law failure at home (Poland andHungary), at

its borders (in relation to asylum policy),and in its closest vicinity (Ukraine).

These will serve as the

background for the analysis of how the pursuit of human rights objectives is continued, comple-

mented or prioritised against the background of and with the use of the two underlying concepts.

Is the EUGS also a human rights strategy?

A single all-encompassing research question guides the considerations of this section of the

research paper: Is the 2016 Global Strategy for the EU’s Foreign and Security Policy also a human

rights strategy? In other words, is the EU offering a path (in Mogherini’s words: ‘to think strate-

gically, share a vision and act together’)

that inter alia focuses on human rights and follows up the

route traced by programmatic documents specifically elaborated in the field? Do human rights take

a priority vis-a

`-vis other policy concerns? Or are the ‘old days’ when human rights instruments

were seen as a final ‘cherry on the top of the cake’ type of consideration coming back yet again?

The EUGS results from a long reflection encouraged by the European Council Conclusions of

December 2013 and coordinated by the EU’s diplomatic units, namely the Cabinet of the HR and

the EEAS. It is the EU’s first strategy of the type in over a decade. In presenting the vision on the

global context in which the EU will operate in the years ahead, this Strategy refers to a contested,

8. Our previous research was conducted for the FRAME FP7 project, within which more than sixty reports dedicated to the

EU external and internal human rights policies were produced and are available at .

In particular, see our report: Chiara Altafin, Veronika Haa´sz and Karolina Podstawa, ‘Assessing the strategic use of the

EU fundamental and human rights toolbox’ (1 July 2016) FRAME Work Package No 14 - Deliverable No 2. See also

Veronika Haa´sz, Karolina Podstawa and Viorica Vita, ‘Analysing the findings of the research of the other work packages

on policy tools’ (31 January 2016) FRAME Work Package No 14 - Deliverable No 1.

9. EUGS 3.

124 Netherlands Quarterly of Human Rights 35(2)

composite and connected world. The shared vital interests to be promoted are identified as peace

and security, prosperity, democracy and a rule-based global order. Importantly, human rights are

never deemed as an organising category, but rather as objectives to be pursued in the context of

other areas. The EUGS recalls the relevance of the Union’s foundational values on several occa-

sions, also stating that a stronger Union is ‘[g]rounded in the values enshrined in the Treaties’.

However, it does not reiterate explicitly Article 2 TEU (which sets out ‘human dignity, freedom,

democracy, equality, the rule of law and the respect for human rights, including the rights of

persons belonging to minorities’).

At the same time, ‘principled pragmatism’ is advocated as the polar star guiding the EU external

action, according to a cautious and modest approach that avoids unachievable expectations, bal-

ancing idealism with Realpolitik. This appr oach is indeed anchored in four principles: unity,

engagement, responsibility and partnership.

Besides reflecting the potential tensions between

values and interests, this realist approach reflects the EU’s power relations in the world and the

difficulty in choosing between policy interests and priorities.

Furthermore, the new Strategy

bases its foundations on the two concepts of coherence and resilience.

The underlying concepts of coherence and resilience in service of the EU human rights

In the EUGS the concepts of coherence and resilience act as connectors between both the content

and modalities of EU action. The efforts to establish coherence in the Union have been a long-

standing one. The appearance of the term in the EUGS echoes not only academic debates,

but

also the legal obligation stemming from Article 11(3) and Article 13(1), as well as Article 21(3)

TEU. Resilience, however, is a relatively new notion in EU policy documents.

It brings some

10. EUGS 13.

11. The EUGS does not reiterate explicitly the principles set forth in Article 21(1) TEU to guide the Union’s action on the

international scene, namely ‘democracy, the rule of law, the universality and indivisibility of human rights and fun-

damental freedoms, respect for human dignity, any of the principles of equality and solidarity, and respect for the

principles of the United Nations Charter of 1945 and international law’.

12. For some of the discussions created by this approach, see Sven Biscop, ‘The EU Global Strategy: realpolitik with

European characteristics’ (June 2016) EGMONT Security Policy Brief No 75; Giovanni Grevi, ‘A Global Strategy for

a soul-searching European Union’ (July 2016) EPC Discussion Paper; Stefan Lehne, ‘The EU Global Strategy, a

triumph of hope over experience’ (July 2016) Carnegie Europe.

13. Just to name a few contributions: Marika Lerch and Guido Schwellnus, ‘Normative by Nature? The Role of Coherence

in Justifying the EU’s External Human Rights Policy’ (2006) 13 Journal of European Public Policy 304; Organisation

for Economic Co-operation and Development, Policy Coherence for Development: Promoting Institutional Good

Practice (OECD 2005); Sacha Prechal and G van Roermund, The Coherence of EU Law: The Search for Unity in

Divergent Concepts (OUP 2008); Christophe Hillion, ‘Tous Pour Un, Un Pour Tous!Coherence in the External

Relations of the European Union’ in Marise Cremona (ed), Developments in EU External Relations Law (OUP 2008);

Marise Cremona, ‘Coherence in Foreign Policy – the Legal Dimension’ in Panos Koutrakos (ed), European Foreign

Policy: Legal and Political Perspectives (Edward Elgar 2011). See also Tamara Lewis, with contributions from

Wolfgang Benedek and Anna Mu

¨ller-Funk, ‘Coherence of human rights policymaking in EU institutions and other EU

agencies and bodies’ (29 September 2014) FRAME Work Package No 8 - Deliverable No 1.

14. This concept emerged in the environmental studies literature and referred to the sustainability of recovery from the

environmental crisis. See Tracy-Lynn Humby, ‘Law and Resilience: Mapping the Literature’ (2014) 4 Seattle Journal

of Environmental Law 85. In the EU context it appeared in several policy documents, such as the 2012 Commission

Communication on the EU approach to resilience-learning from food crises; the 2013 Council Conclusions on the EU

approach to resilience; the 2013 European Parliament resolution on the EU approach to resilience and disaster risk

reduction in developing countries: learning from food security crises; the 2013 Commission Staff working document

Altafin et al. 125

fresh air to a dated discussion of the EU presence on international stage or, similarly, of the types of

power at its disposal,

possibly indicating a positive change in the execution of its internal

obligations and undertaking where ‘principled pragmatism’ can actually be realised.

‘Resilience’ is defined as ‘the ability of States and societies to reform, thus withstanding and

recovering from internal and external crisis’

and features in the document more than 40 times.

The EUGS also specifies that ‘a resilient society featuring democracy, trust in institutions and

sustainable development lies at the heart of a resilient State’.

On the one hand, this broad

concept is applied to the Member States (‘[t]he EU will foster the resilience of its democra-

cies’

) and to third States. On the other hand, societal resilience is nurtured by deepening the

EU’s relations with civil society and intensifying the ‘work on education, culture and youth to

foster pluralism, coexistence and respect’.

Building and enhancing resilience at home and

abroad is meant to include improving good governance and accountability, as well as creating

a better space for civil society to act.

Critically, the dynamic conception of resilience would require some refinement and elucida-

tion in the implementation of the EUGS in general and in its implications for EU human rights

related policies in particular. A resilience agenda would imply to articulate how reinforcing the

capacities of governments and societies to deal with rights-sensitive challenges that are already

tangible (such as weaknesses in the checks and balances of constitutional systems, threats to the

independence of the judiciary, growth of inequalities, poverty, social exclusion, human vulner-

ability, lack of job opportunities, refugees’ influx, xenophobia, radicalisation processes). Yet,

this aspect might be connected with the origins of the concept itself and the fact that it has been

used in humanitarian protection context. Just as the rights-based approach to development

apparently required translation into the development jargon and processes, if it is to add value,

resilience will need to be accommodated by the European human rights policy makers, espe-

cially with due regard given to the social and economic rights shattered as the result of the post-

2008 austerity measures.

Attaining coherence, on the other hand, is a clearly determined objective in the EU’s foreign

and security policy (in line with Article 21(3) TEU) and the insurance of the consistency (the

Treaty uses the term consistency and coherence indeterminately) of the Union’s external action lies

with the High Representative. The EUGS takes the commitment to ensure coherence seriously and

on an Action Plan for Resilience in Crisis Prone Countries; the 2014 Communication on the short term resilience of the

European gas system; the 2015 Joint Communication on A Framework Strategy for a Resilient Energy Union with a

Forward-Looking Climate Change Policy; the 2015 Review of the European Neighbourhood Policy; the 2016 Com-

munication on a Joint Framework on countering hybrid threats a European Union response; the 2016 Communication

on ‘lives in dignity: from aid-dependence to self-reliance - forced displacement and development’. Resilience also

became one of the key concepts in the European Civil Protection and Humanitarian Aid Operations (in particular see

ECHO, ‘Resilience Marker: General Guidance’ and ‘EU Resilience Compendium’, 2014)

what/humanitarian-aid/resilience_en > accessed 25 October 2016.

15. See, for example, Ian Manners, ‘Normative Power Europe: A Contradiction in Terms?’ (2002) 40 Journal of Common

Market Studies 235. For an examination of the rise of resilience discourses in EU foreign policy, see Ana E Juncos,

‘Resilience as the new EU foreign policy paradigm: a pragmatist turn?’ (2017) 26 European Security 1.

16. EUGS 23.

17. ibid 24.

18. ibid 8.

19. ibid 26.

126 Netherlands Quarterly of Human Rights 35(2)

focuses both on the horizontal coherence across EU foreign policies (also between the internal and

external ones) and on the vertical coherence between the EU and the Member States.

The concept of coherence runs through the five priorities of the Global Strategy. All of them are

supposed to be pursued ‘in a coherent and coordinated way’ by mobilising EU’s networks, its

economic weight and all the tools at its disposal.

To this end, a collective investment in its

credibility and responsiveness along with a ‘more joined-up’ external action are expressly required.

The EUGS provides further consideration of these three ambitious aspects, recommending certain

directions for the evolution of existing policies as well as demanding new strands along the lines of

the five priorities. In doing so, the text makes (direct or indirect) references to human rights too.

In particular, a ‘credible Union’ hinges on its own unity, achievements, enduring power of

attraction, the effectiveness and consistency of its policies, and adherence to its values. However,

investing in the EU’s credibility is calle d for by emphasising increased security and defence

capabilities.

In this sense, unfortunately the EUGS does not put the EU’s credibility in close

connection with possible advancements of its human rights related policies.

Conversely, a ‘more responsive Union’ entails a change in diplomacy (via more reactive

diplomatic tools), a more rapid and effective Common Security and Defence Policy (CSDP), a

more flexible development policy (also aligned to the aforementioned strategic priorities), and a

strong knowledge base underpinning the external action.

Concerning the latter, ‘deeper situa-

tional awareness’ is called for devising targeted approaches to resilience, conflict prevention and

resolution. On the one hand, the prescribed investment in the EEAS entails providing EU delega-

tions with due expertise, investing in the EU Conflict Early Warning System, rendering all EU

external engagement conflict- and rights-sensitive. On the other hand, the prescribed investment in

better coordination across institutions and Member States entails ‘greater information sharing and

joint reporting, analysis and response planning’ between embassies, delegations Commission

services, EU Special Representatives and CSDP missions, as well as ‘cross-fertilisation’ with

international and regional organisations, civil society, the private sector, academia and think tanks.

Finally, a ‘more joined-up’ external action is seen as lying at the heart of a coherent role of the

EU. This entails enhancing earlier efforts, namely institutional innovations (for example, the HR

and the EEAS) as well as policy innovations (for example, the ‘comprehensive approach to

conflicts and crises’ and ‘joint programming in development’). Econ omic diplomacy, cultural

diplomacy and energy diplomacy represent new fields identified in this context. Significantly, the

EUGS advocates the joined-up approach to the internal and external dimensions of EU policies.

This is seen as required by the migration phenomenon.

It is similarly called in the EU security

and development policies,

thus attempting to ease tensions between them. The strengthening of

the internal/external nexus is also addressed for issues such as counter-terrorism, counter-violent

extremism, and cyber security.

20. For a discussion of the forms of incoherence and their impact on human rights policies, see Tamara Lewis and others (n

10); Nicolas Hachez, ‘The outcome of the research realised in the FRAME Project’ (31 October 2015) Work Package

No 15 – Deliverable No 1.

21. EUGS 44.

22. ibid 44-46.

23. ibid 47-48. The EUGS does not explain the use of the term ‘knowledge base’.

24. ibid 50.

25. ibid 50-51.

26. ibid 21, 22.

Altafin et al. 127

Further references to coherence and resilience are made in the EUGS and the subsequent parts

of this article will refer to them. The purpose of this section was simply to pinpoint the two

underlying concepts so as to observe subsequently whether and how they affect the fulfilment

of human rights objectives in the EU external policies.

The human rights dimension of the EUGS

The EUGSclearly is not a human rights strategyper se. Indeed, preciselybecause it is a global strategy

for the EU’sforeign and security policyit frames principles, interestsand priorities of theEU through

global lenses addressing manifold concerns in an ever more demanding (geo)political context.

However, a certain consciousness about the needto advance the EU human rights related policies is

preserved by thenew document with a general reference to the championingof the indivisibility and

universality of human rights in the context of the principle of responsibility guiding the Union’s

externalaction.

The identifiedfive priorities also deserveattention in this regard. Now eachof them

will be analysedin the light of the human rightsobjectives implicitlyor explicitly proclaimedby them.

The first strategic priority of the EUGS is strengthening the Union’s own security by focusing

on five lines of action, namely security and defence policies, counter-terrorism, cyber security,

energy security, and strategic communications across different fields. In order to guarantee the

security of European people and territory, promote prosperity and safeguard their democracies, the

EU’s intention to enhance itself on security and defence ‘in full compliance with human rights and

the rule of law’ is expressed.

In this regard, Europe’s collective security is linked not only to the EU’s ability to protect its

own territory, respond to external crises, and assist in developing its partners’ security and defence

capacities (management and capacity-building), but also to the EU’s ability to assist in protecting

Member States upon their request, and its institutions.

This is meant to live up to the EU’s

commitments to mutual assistance and solidarity, also reflecting an external and internal dimen-

sion of the challenges.

External border management is explicitly mentioned too. Significantly, the EUGS foresees the

possibility that the CSDP missions and operations work together with the European Border and

Coast Guard and EU specialised agencies ‘to enhance border protection and maritime security in

order to save more lives, fight cross-border crime and disrupt smuggling networks’.

Concerning the challenge of terrorism, the EUGS emphasizes the importance of deepening

work on education, communication, culture, youth and sport to counter violent extremism. This is

also the only instance where human rights appear in the security discourse, highlighting the crucial

antidote for the EU to ‘live up to its values internally and externally’.

Developing human rights-

compliant anti-terrorism cooperation with Turkey, the Western Balkans, the Middle East, and

27. For the discussions of an importance of strategies as documents, see Susi Dennison, Richard Gowan and Hans

Kundnani, ‘Why Europe Needs a New Global Strategy’ (October 2013) Policy Brief, ECFR/90; Pascal Vennesson,

‘Competing Visions for the European Union Grand Strategy’ (2010) 15 European Foreign Affairs Review 57; Rainer

Eising, Daniel Rasch and Patrycja Rozbicka, ‘Institutions, Policies, and Arguments: Context and Strategy in EU Policy

Framing’ (2015) 22 Journal of European Public Policy 516.

28. EUGS 17.

29. ibid 18-23, particularly 19.

30. ibid 19.

31. ibid 20.

32. ibid 21.

128 Netherlands Quarterly of Human Rights 35(2)

North Africa is expressly mentioned, alongside sharing best practices and developing joint pro-

grammes on countering radicalisation and violent extremism.

The second strategic priority of the EUGS concerns investing in the resilience of States and

societies acrossthe EU’s East and South. This encompasses the EU enlargement policy, its neigh-

bourhoodpolicy and its surroundingregions, with a specialfocus on a more effectivemigration policy

towards origin a nd transit countries.

Accordingly, the EU envisions supporting ‘different paths to

resilience, targeting the most acute cases of governmental, economic, societal and climate/energy

fragility’.Here, the basic need of States andsocieties’ willingness toreform is indirectly highlighted.

Apparently the EU’s transformative power or decisive influence is not overrated (anymore). The

emphasis is put on a resilience agenda in the relationship with its Eastern Partnership (EaP) and

Southern Mediterranean countries as well as on tailor-made approaches to specific States.

Regarding the enlargement policy, a fair and strict conditionality is considered ‘an irreplaceable

tool’ to improve resilience within the States concerned, guaranteeing that democratisation and

modernisation advance along the lines of the accession criteria.

On the one side, the EU policy

towards the candidate countries is aimed at focusing on basic requirements for membership,

scrutiny of reforms, and feedback from the European Commission, Member States and also local

civil societies. On the other side, ‘concrete benefits’ delivered from the EU assistance should

include ‘cooperation on counter-terrorism, security sector reform, migration, infrastructure, energy

and climate’ so as to improve citizens’ wellbeing. However, in the case of Turkey and the Western

Balkans resilience is not taken for granted: it remains challenging for the EU to promote therein

rule of law, political reform, economic convergence and sectoral cooperation.

In relation to EU neighbours, the pursuit of resilience is deemed to ‘spur transformation’ in

countries such as Tunisia and Georgia, whose prosperity and democracy would resonate across

their own regions. As for the EaP, resilience is seen to pass through the EU’s support in imple-

menting association agreements as well as deepening tailor-made partnerships, but also through the

EU’s enhancement of ‘societal links’ via mobility, educational and cultural exchanges, research

cooperation and civil society platforms.

In advocating ‘a multifaceted approach to resilience’ in EU surrounding regions, the EUGS

elaborates more explicitly on its basic connection with the promotion and protection of human

rights. This is done with the use of tools focused on ‘dialogue’ and ‘support’ as well as ‘long-term-

engagement’. Significantly, the choice of ‘locally owned rights-based approaches to the reform of

the justice, security and defence sectors’ is undertaken. The support to fragile States in building

capacities, possibly via tailor-made policies boosting inclusive and accountable governments, is

referred to as well. In particular, development, diplomacy and CSDP are considered three func-

tional areas through which to guarantee that security sector reform efforts will allow and strengthen

the EU’s partners’ capacities to provide ‘security within the rule of law’.

Focusing on the migration phenomenon, in relation to the EU’s work on resilience the EUGS

addresses its intention to take a special focus on ori gin and transit countries of migrants and

refugees.

This is articulated by identifying the following: (1) stepping up the EU’s humanitarian

33. ibid 23-28.

34. ibid 24.

35. ibid 25.

36. ibid 26.

37. ibid 27-28.

Altafin et al. 129

efforts therein and focusing on education, women and children; (2) developing common and tailor-

made approaches to migration featuring development, diplomacy, mobility, legal migration, bor-

der management, readmission and return; (3) working with countries of origin to address and

prevent the root causes of displacement, manage migration, and fight trans-border crime;

(4) supporting transit countries by improving reception and asylum capacities, and by working

on migrants’ education, vocational training and livelihood opportunities; and (5) stemming irre-

gular flows by making returns more effective and by ensuring regular channels for human mobility.

In this regard, a two-fold intention is expressed: first, ‘enhancing and implementing existing legal

and circular channels for migration’; and second, ‘working on a more effective common European

asylum system which upholds the right to seek asylum by ensuring the safe, regulated and legal

arrival of refugees seeking international protection in the EU’. Concurrently, the objective to work

with EU’s international partners ‘to ensure shared global responsibilities and solidarity’ is con-

sidered, particularly establishing effective partnerships on migration management with UN agen-

cies, regional organisations, emerging players, civil society and local communities.

It is noteworthy that in discussing resilience human rights concerns give way tothe focus on rule

of law and democracy. For instance, in relation to the enlargement policy the identified challenge

focuses on promoting the politicalreform and rule of law. Instead,in the surrounding regions,human

rights are to be protectedas a tool for eliminating repressionthat ‘suffocates outlets of discontent and

marginalises communities’.

When discussing the migration policy, however, the EUGS does not

pay particular attention to human rights compliant management of migration flows; instead, it

focuses on the access to asylum conceived of as the right that puts a spotlight on the actions of the

border regions.In this context the EUGS’s rigidityin applying resilience across internal and external

policies falters. There is no mention of the internal grievances on the application of the Dublin

Regulation, related human rights violations, and the internal political deadlock concerning the re-

settlement of refugees within the EU

(not to mention the failure on the EU side to implement the

EU-Turkey deal

The third strategic priority of the EUGS concerns developing an ‘integrated approach to

conflicts and crises’ grounded on ‘pre-emptive peace’, ‘security and stabilization’, ‘conflict

settlement’, and a ‘political economy of peace’. More specifically, this approach is deemed

multi-dimensional (that is using all available instruments and policies aimed at prevention, man-

agement and resolution), multi-phased (that is acting at all stages of the conflict cycle), multi-level

(that is covering local, national regional and global levels), and multi-lateral (engaging all the

players involved in the conflict).

The four proposed grounds of this priority show a certain

potential for advancing the human rights discourse.

First, ‘pre-emptive peace-building’ and ‘diplomacy’ are considered good tools to monitor root

causes of conflicts, such as human rights violations, inequality and resource stress. Significantly,

the link between ‘early warning’ and ‘early action’ is acknowledged by formulating basic impli-

cations: (1) regular reporting and proposals to the European Council; (2) engagement in preventive

38. ibid 26.

39. For the most complete critical coverage of the migration crisis of the past years, see UNHCR, ‘Operational Portal:

Refugees Situations’ accessed 16 March 2017; Migration Policy

Centre, ‘Migrant crisis’ accessed 16 March 2017.

40. See, in particular, Me´decins Sans Frontie`res, ‘One Year on From the EU-Turkey Deal: Challenging the EU’s Alter-

native Facts’ (14 March 2017).

41. EUGS 28-29.

130 Netherlands Quarterly of Human Rights 35(2)

diplomacy and mediation through EU Delegations and Special Representatives; and (3) deepening

partnerships with civil society. Indeed, the advocated ‘political culture of acting sooner in response

to the risk of violent conflict’

has represented a critical missing aspect in several cases in which

the EU has been involved and human rights implications have been serious.

Second, the security dimension of conflicts is directly emphasised. The aim is to make

European security and defence well set to protect human lives (especially civilians) and to

build peace. Accordingly, rapid and decisive responses to crises are due. Security is to be

provided in contexts of transitional governments, but also supporting local ceasefires and

paving way for capacity building. Concurrently, ‘a coherent use of internal and external

policies’ is deemed the key tool to counter insecurity stemming from such conflicts. Con-

cerning the stabilisation dimension, the prompt delivery of basic servicesandsecuritytolocal

populations is properly stressed, also expressing the EU’s intention to ‘bridge gaps’ in its

response ‘between an end of violence and long-term recovery’ and to develop the dual

(security and development) nature of its engagement.

Implicitly, this is likely to support

also human rights friendly initiatives.

Third, the EU’s support to ‘conflict settlement’ passes through fostering ‘inclusive govern-

ance at all levels’ via dedicated financial instruments, CSPD, and development, combining

top-down and bottom-up efforts nurturing ‘sustainable statehood rooted in local agency’.

Importantly, working with local municipalities and civil society also contributes to channel

the EU’s support to those championing human security and reconciliation. Mediation, facil-

itation as well as cultural, scientific and economic diplomacy are identified as the best tools in

the conflict setting.

Further potential to advance human rights in such contexts derives from the EU’s intention to

foster the ‘political economy of peace’, with more synergies between humanitarian and develop-

ment assistance, and with more support to provide basic goods, health, education, and legitimate

employment. Trade and development are deemed to underpin long-term peace-building.

Besides

diplomacy, restrictive measures are also considered as key tools for deterrence, conflict prevention

and resolution, although ‘smart sanctions’ are required to be ‘calibrated and monitored to support

the legitimate economy and avoid harming local societies’.

The further call for modernising the

EU policy on export control for dual-use goods and for fighting the illegal trafficking of natural

resources and cultural goods is also very adequate in this context.

The fourth strategic priority of the EUGS concerns promoting and supporting ‘cooperative

regional orders’ according to specific goals and selective engagements in different world regions,

in line with the EU long-standing commitment to partnerships with organised blocs of States rather

than singular ones.

In particular, European security will be pursued, inter alia, by upholding

42. ibid 30.

43. An emblematic case regards Ukraine as discussed in paragraph 3.3.

44. EUGS 30.

45. ibid 31.

46. ibid.

47. ibid 32.

48. For a discussion on the EU’s idea as to what effective multilateralism means, see Johannes Klabbers, ‘Europe’s

Counter-terrorism Laws: Outlines of a Critical Approach’ in Malcolm D Evans and Panos Koutrakos (eds), Beyond the

Established Legal Orders: Policy Interconnections between the EU and the Rest of the World (Hart Publishing 2011)

205-224.

Altafin et al. 131

international law, democracy, human rights, cooperation and each country’s right to choose its

future freely, as well as by fostering cooperation with the Council of Europe (CoE) and the

OSCE.

A peaceful and prosperous Mediterranean, Middle East and Africa will be ensured

through ‘five lines of action’ (that is, functional multilateral cooperation in the Maghreb and the

Middle East; sectoral cooperation with Turkey; balanced engagement in the Gulf; cooperation

support between North and sub-Sahara Africa and between the Horn of Africa and the Middle East;

and investment in African peace and development).

In all the geographic contexts respect for human rights is highlighted as one value or objective

against many interests enumerated in one breath. Here the EU relationship with Asia is emble-

matic.

The EUGS calls to make a better use of existing regional platforms investing in coopera-

tive relationships ‘to spur global responsibilities’. Promotion or dialogue are implied, but this

fourth strategic priority would require some clarification in its implications for the EU’s role in

gathering support for human rights in different policy areas as opposed to other legitimate interests.

The fifth strategic priority of the EUGS consists in reinforcing a global governance grounded

on the international rules-based order, including the principles of the UN Ch arter and the Uni-

versal Declaration of Human Rights, andthe Helsinki Final Act. This is deemed toguarantee peace,

human rights, sustainable development and lasting access to the global commons.

Importantly, the

EU commits to multilateral institution sfrom a reform perspective (of theUN and the Bretton Woods

institutions), standing up for the principles of accountability, representativeness, responsibility,

effectiveness,and transparency. Moreover, the EU’s formatto deliver effective governanceis guided

by explicit objectives. ‘Investing’in the UN means: ‘implementing’ the EU commitments to sustain-

able developmentand climate change; ‘deepening’ therules on global trade and investment; ‘widen-

ing’ the reach of international norms, regimes and institutions; ‘developing’ rules to ensure security

and sustainableaccess to the global commons;and ‘partnering’ withStates, organisations,the private

sector and civil society. All these objectives are key issues for regional and international stability.

In translating its vision into action, the EUGS puts a final emphasis on human rights

mainstreaming:

we will systematically mainstream human rights and gender issues across policy sectors and institu-

tions, as well as foster closer coordination regarding digital matters. Greater awareness and expertise

on such issues is needed within the EEAS and the Commission. Better coordination between institu-

tions would also add consistency and spread best practices, helping us build a stronger Union and a

more resilient, peaceful and sustainable world.

The way ahead to implement the EUGS is to involve a multi-phased process. First, well-defined

procedures and timeframes should be agreed by all relevant players in order either to revise current

sectoral strategies or to devise new thematic or geographic plans according to the strategic political

priorities. Second, periodic reviewing of the same Strategy is required in consultation with the

European Council, the European Commission and the European Parliament. Third, the possibility

49. EUGS 33.

50. ibid 34-36. See also Eduard Soler i Lecha and Nathalie Tocci, ‘Implications of the EU Global Strategy for the Middle

East and North Africa’ (July 2016) Menara Papers, Future Notes 1, Istituto Affari Internazionali.

51. EUGS 37.

52. ibid 39.

53. ibid 51.

132 Netherlands Quarterly of Human Rights 35(2)

to launch ‘a new process of strategic reflection’ to enable the EU and its Member States to pass

effectively through challenging times is foreseen.

Assessing the human rights dimension of the EUGS – continuation,

complementarity or prioritisation?

So far the EUGS has been reviewed from the point of view of the extent to which it addresses

human rights concerns. It would be unjust to state that the grand Stra tegy does not take into

consideration the EU’s commitment to values. Yet, one cannot help but notice the largely dec-

orative function such invocations fulfil. Despite addressing the most pressing issues such as

migration or the conflict in Ukraine and the relationship with Russia, the EUGS is very superficial

on what it means for the EU to truly engage with human rights. At the same time, it is the most

important Strategy for the EU external relations dealing with the vast number of issues. It cannot be

expected to tackle them all in great detail. Yet, values in general, and human rights in particular,

are different. It may be worth recalling that, with reference to human rights, Mogherini stated

convincingly and strongly:

‘Human rights will be one of my overarching priorities and I intend to use them as a compass in

all my relations within EU Institutions, as well as with third countries, international organizations

and civil society.’

This statement, coupled with the EU’s general commitment to mainstreaming human rights, as

well as the (r)evolutionary changes brought about by the rights-based approach to development and

human rights conscious impact assessments of trade policy,

would imply that the position of

human rights is different than that of other interests and objectives undertaken by the Union. They

imply that also the EU action must be checked against the fulfilment of the commitment to human

rights (and to the rule of law and democracy). If human rights are to offer the peculiar substantive

form of ‘checks and balances’ of both the form and content of other policy fields, their point of

view should be adopted when defining other priorities. This is not what the EUGS does – at least

not in an open manner. Here and there one can observe the change (especially in connection to the

discussion on resilience). Yet, at other times attention granted to human rights seems what it had

been at the times of the Solana’s security strategy, despite a series of human rights crises which (as

one would hope) have taught the EU about the importance of the conscientious policy making and

implementation.

In view of the above, the third part of the paper engages with this aspect of the human rights

dimension of the EUGS. In particular, against the background of the most pressing human rights

challenges within and without the EU borders, th e relationship between the EUGS and other

54. European Parliament, ‘Answers to the European Parliament Questionnaire to the Commissioner-Designate Federica

Mogherini - High Representative of the Union for Foreign Affairs and Security Policy - Vice-President of the Com-

mission‘ (6 October 2014) 8-9.

55. See, in particular, the EU executive instruments adopted in recent years and geared towards incorporating human rights

in the core of the EU policies internally and externally: Communication from the Commission, ‘Strategy for the

Effective Implementation of the Charter of Fundamental Rights by the European Union’ (19 October 2010)

COM(2010) 573 final; Communication from the Commission ‘Compliance with the Charter of Fundamental Rights in

Commission legislative proposals - Methodology for systematic and rigorous monitoring’ (27 April 2005) COM(2005)

172 final; Commission Staff Working Paper, ‘Operational Guidance on taking account of Fundamental Rights in

Commission Impact Assessments’ (6 May 2011) SEC(2011) 567 final; Communication from the Commission on

Impact Assessment (5 June 2002) COM(2002) 276.

Altafin et al. 133

strategic documents is analysed to determine whether its take on human rights continues or

complements the earlier approach of the EU in the field, or actually prioritises them in the activities

of the EU. In doing so, it will be also anticipated whether the EU should adapt the existing strategic

documents

to the new vision. Here, as it seems, the focus on the two ground concepts of the

EUGS (coherence and resilience) constitute the largest change of a paradigm and thus will be

adopted as an organising feature for the remainder of our analysis. It must be emphasised that this

approach leaves out another aspect of the framing of the EU human rights policy against other

policy fields: the capacity to respond to the imminent problems posed by the broadly understood

crisis situations. The below paragraphs contain, therefore, a reflection on the extent to which the

EUGS foresees short-term response to human rights violations resulting from a type of crisis. It is

argued that the answer to this problem lies again in the concepts of coherence and resilience.

Sampling internal resilience and internal-external coherence: The Hungarian

and the Polish crises

Possibly, the most striking aspect of the EUGS is the attention to the internal affairs along with the

importance of joining up internal and external policies. Definitely, the link between internal and

external policies is a natural and understandable phenomenon, since the EU’s internal position is

the context from which its external strategy must emerge.

The Union’s shared values may be considered as connecting links between the internal and

externalspheres. Several examplesreflect their cohesion. Humanrights clauses in agreements‘create

obligations bothfor third countries and for the EU and its Member States’.

The Working Party on

Fundamental Rights, Citizens Rights and Free Movement of Persons (FREMP) and the Working

Party on Human Rights (COHOM) of the Council of the EU have beenincreasing their cooperation

regarding enhancing coherenceand consistency between the EU’sexternal strategies and its internal

reality.

And yet, the link between internal and external policies is often questioned, and the two areas

remain considered as largely separated both by the policy makers (to a certain extent for obvious

institutional reasons). The EUGS , which can be considered a traditional external policy tool,

breaks with this approach and offers intervention in the internal sphere as complementing the

existing EU legal and policy toolbox. In particular, it is noteworthy that the objective interdepen-

dency of internal and external policies, in the context of the human rights policy, takes on a new

significance in the EUGS, which states strongly that: ‘[o]ur interests and values go hand in hand.

We have an interest in promoting our values in the world. At the same time, our fundamental

56. For instance, the 2012 EU Strategic Framework and the 2015-2019 Action Plan (n 5).

57. Council of the European Union, ‘Coherence and consistency between internal and external EU human rights policy –

Presidency discussion paper’ (24 February 2016) 6256/16.

58. See Annex - Outcome of the FREMP-COHOM Cooperation, ibid, including the regular exchanges since 2013 between

them on the coherence of the EU’s internal and external human rights policies in general and on specific thematic

topics: for instance, FREMP Agenda Point ‘Coherence between the internal and external dimension of human rights

policy’ (21 November 2013) CM 5209/13; FREMP Agenda Point ‘Exchange of views with Mr Lambrinidis, EU

Special Representative for Human Rights’ (15 January 2014) 5886/14; FREMP Agenda Point ‘Coherence between the

internal and external dimension of human rights policy - Presentation of the Presidency discussion paper and exchange

of views’ (9 April 2014) CM2286/14; Joint COHOM - FREMP meeting on internal-external coherence (7 October

2014) CM 4339/14.

134 Netherlands Quarterly of Human Rights 35(2)

values are embedded in our interests.’

And so: ‘To safeguard the quality of our democracies, we

will respect domestic, European and intern ational law across all spheres, from migration and

asylum to energy, counter-terrorism and trade. Remaining true to our values is a matter of law

as well as of ethics and identity.

All these statements can be found in the introductory part, where the ‘vital interests’ are

discussed. The focus is on the internal situation of the EU in the absence of decisive steps from

the EU leadership to force the ‘black sheep’ among the Member States to reflect on their actions

and deliver on human rights. The EUGS, in fact, echoes that the Union is based on values shared by

all Member States. Their importance is recalled on several occasions in the Strategy, which sees a

stronger EU as ‘[g]rounded in the values enshrined in the, Treaties’

and highlights they ‘have

inspired its creation and development’.

Importantly, it also emphasises that ‘[t]he politics of fear

challenges European values and the European way of life’

and that living up to these values

internally and externally ‘is the strongest antidote we have against violent extremism’.

Certainly,

nowadays across Member States political changes capable of endangering such European values

are spreading. From the EUGS’s wording, however, it is clear that the EU’s credibility in evoking

the foundational values is measured also on its ability to respond to constitutional crisis situations

that jeopardise democracy, human rights, and the rule of law.

These three values play an important role in the EU enlargement policy. The EUGS repeats the main

rule, namely that ‘[a]ny European State which respects and promotes the values enshrined in our Treaties

may apply to become a Member of the Union’.

This clearly echoes Article 49 TEU, any country

wishing to join the EU must sign up to the values referred to in Article 2. Hence, ‘human dignity,

freedom, democracy, equality, the rule of law, and the respect for fundamental and human rights’ are EU

constitutional standards and their respect and promotion are a precondition for membership in the Union.

The stability of institutions guaranteeing such standards is not only one of the so called Copenha-

gen criteria, but also a pre-accession conditionality, since satisfying this criterion is a requirement for

launching the EU accession negotiations. At the moment, the EU foundational values (in particular

fundamental rights) are the cornerstone of the integration process. What happens, however, when the

accession is complete? No similar method exists to measure adherence to these constitutional

standards after accession. Recent developments in Hungary and Poland showed that the ‘Copenha-

gen dilemma’ is not a theoretical one.

If the Member States and the EU itself still agree that these

values are still shared and that the constitutional traditions are still common, as Article 6(3) TEU

declares, there is not only a need to establish instruments and procedures ensuring that all actions of

Member States and policies of EU institutions are in line with such values, but also a duty to do so.

59. EUGS 14.

60. ibid 15.

61. ibid 13.

62. ibid 15.

63. ibid 19.

64. ibid 21.

65. ibid 24.

66. Petra Ba´ rd, Sergio Carrera, Elspeth Guild, Dimitry Kochenov and Wim Marneffe, ‘An EU mechanism on Democracy,

the Rule of Law and Fundamental Rights’ (April 2016) CEPS Paper No 91.

67. EuropeanParliament,Committee on Civil Liberties,Justice and Home Affairs,‘Working Documenton Using Article 2 and

the Charter as a Basis fo r Infringement Procedures’ (26 J anuary 2016) PE575.320v01-00, L IBE_DT(2016)575320, 4.

Altafin et al. 135

According to the EUGS, democracy is one of the EU citizens’ vital interests underpinning the

EU external action. It emphasises that ‘[l]iving up consistently to our values internally will

determine our external credibility and influence’.

This expressed connection between the internal

and external spheres is important. Fostering democracies in the Member States and promoting the

EU values in the world are interdependent and interrelated. The EU has crucial interests in

maintaining well-functioning democracies in its Member States. Not only for its better internal

functioning – that is partly based on the members’ mutual trust in each other’s institutions – but for

being a credible human rights actor towards third countries.

In other words, upholding democ-

racy in the Member States is a prerequisite for credible external actions. And so, how does the

EUGS address the upholding of shared values in the Member States vis-a

`-vis other documents that

deal with this matter?

Our findings on the constitutional crises in Hungary and Poland and the EU’s responses thereto

showed that the Treaty-based legal instruments, with the exception of the infringement procedure

(whose applicability is specific and limited), have not been activated (this observation applies

especially to Article 7 TEU).

Apparently, policy instruments could ensure neither swift, nor

effective intervention. This is due to a number of factors: (i) the peculiar position of fundamental

rights in relation to the conferred powers of the EU not permitting the latter to act solely on the

basis of the fundamental rights provisions enshrined in the Charter of Fundamental Rights; (ii) the

fear of the Member States to be next in the row; and finally (iii) the assumption that the values had

been shared among them indeed prior to the accession. Importantly, these three factors are

reflected in the fact that the EU does not possess an internal fundamental rights strategy (and so

the external one points to the most contagious problems in the EU internal relations).

However,

the lack of strategy does not necessarily mean that the EU has not been undertaking strategic

reflection on the basis of the values internally.

At the moment,Article 7 TEU provides the legalbasis for an EU action against a MemberState in

breach of Article 2 TEU. In case of an emerging systematic threat to the rule of law, as a half-way

solution,the European Commission adoptedthe new Rule of Law Framework(RoL Framework) that

establishes themodalities of how it shall react in sucha situation.

An important featureof the RoL

Framework (as well as of the recent ‘EU mechanism on democracy, rule of law and fundamental

rights’

) is the preventive character owing to the monitoring nature by regular assessment of the

compliance of Member States with EU common values and respect for fundamental rights.

68. EUGS 15.

69. Altafin, Haa´ sz and Podstawa (n 6) 46-48. See also Dimitry Kochenov and Laurent Pech, ‘Monitoring and Enforcement

of the Rule of Law in the EU: Rhetoric and Reality’ (2015) 11 European Constitutional Law Review 512; Dimitry

Kochenov, Amichai Magen, and Laurent Pech, ‘Introduction: The Great Rule of Law Debate in the EU’ (2016) 54

Journal of Common Market Studies 1045.

70. Altafin, Haa´ sz and Podstawa (n 6) 75.

71. See the call for the introduction of the EU fundamental rights strategy made, inter alia, by Amnesty International: ‘The

Future of EU Policies in the Area of Freedom, Security and Justice: A Human Rights Perspective - Amnesty Inter-

national’s Contribution to the European Commission’s Public Consultation on ‘‘Shaping Justice Policies in Europe for

the Years to Come’’’ (December 2013).

72. European Commission, ‘Communication from the Commission to the European Parliament and the Council - A new

Framework to strengthen the Rule of Law’ (19 March 2014) COM(2014) 158 final/2.

73. European Parliament, ‘European Parliament resolution of 25 October 2016 with recommendations to the Commission

on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights 2015/2254(INL)’

P8_TA(2016)0409.

136 Netherlands Quarterly of Human Rights 35(2)

Nevertheless, these tools are deemed too weak due to their soft law and dialogue based character.

According to the E UGS, the EU may consider t hat soft power is not enough.

The Council of the EU

has also adopted its own rule of law initiative in the form of an annual political dialogue among all

Member States within the Council ‘topromote and safeguard the rule of lawin the framework of the

Treaties’.

Apparently, the challenging events in the Member States have made the EU aware of the

need of an enhanced role and action in the promotion and protection of fundamental and

human rights. Nevertheless, the history shows the EU responsive manner of giving short-term

crisis responses and then adopting long-term strategies.

Undoubtedly, it is difficult to fore-

see crisis situations. However, the EU’s reactive attitude is witnessed even when it has

already experienced similar crises, see for example the Hungarian an d the Polish constitu-

tional crises. This brings us back to the requirement of consistency in the EUGS’ wording

regarding actions.

In this regard, the aforementioned intention of the EU to live up consistently to its values

internally deserves more attention. Acting consistently means to act ‘in every case or on every

occasion; invariably’.

The constitutional crisis situations in Hungary and Poland and the EU’s

reaction thereto have shown that the EU’s short-term crisis response may vary from case to case.

Several fundamental and human rights tools are at its disposal and, based on different considera-

tions, it chooses to use one or the other – even in the case of such crises that are very similar to each

other. One may say that this is the right way to respond to crisis situations. At the same time, this

attitude makes the EU less predictable and clear on whether it has a long-term strategy and

strategic progress. According to the EUGS, ‘[a] resilient society featuring democracy, [ ...] lies

at the heart of a resilient State’

and one of the conditions of a resilient State is that society feels

that it is ‘becoming better off’ and has ‘hope in the future’.

The EUGS also promises that ‘[t]he

EU will support different paths to resilience, targeting the most acute case s of governmental,

economic, societal [ ...] fragility’.

In other words, the EUGS takes a step further and intends

to not only deal with crisis situations but also prepare society to cope with them, and perhaps even

to avoid them.

Concluding from this example, it is noteworthy that the EUGS has take n on the role of a

complementary instrument to the internal ones, emphasising the missing element in the EU

internal policies and its importance for the EU as an actor.

Coherent but still the odd one out: the failed attempt to prioritise human rights

in the EUGS approach to migration policy

The migration policy, for obvious reasons, has accumulated broad attention in the EUGS, yet

it is difficult to classify the corresponding position of human rights. Whilst it could be

74. EUGS 44.

75. Council of the European Union, ‘Conclusions of the Council of the European Union and the member states meeting

within the Council on ensuring respect for the rule of law’ (16 December 2014).

76. Altafin, Haa´ sz and Podstawa (n 6) 48-49.

77. Oxford Dictionary, definition of ‘consistently’ in English.

78. EUGS 24.

79. ibid 26.

80. ibid 9.

Altafin et al. 137

claimed that in general terms the migration policy (perceived necessarily as the general body

of policies focused on management of migration as its vastness and nuances are be yond the

scope of this paper) has been moving towards prioritisation or mainstreaming of human

rights,

this trend is difficult to observe in the EUGS. Instead, as it seems, other concerns

have preoccupied the policy makers.

First of all, yet again the coherence, resilience, and the overall effectiveness of this policy field

hinge on the connection between internal and external realms. In particular, the lack of the

consensus as to the internal policy measures

pushed the Union to search for the external policy

ones

and the strong declaration in the EUGS that:

(w)e must become more joined-up across internal and external policies. The migration phenomenon,

for example, requires a balanced and human rights-compliant policy mix addressing the management

of the flows and the structural causes. This means overcoming the fragmentation of external policies

relevant to migration. In particular, we will develop stronger links between humanitarian and devel-

opment efforts through joint risk analysis, and multiannual programming and financing. We will also

make different external policies and instruments migration-sensitive – from diplomacy and CSDP to

development and climate – and ensure their coherence with internal ones regarding border manage-

ment, homeland security, asylum, employment, culture and education.

Yet, secondly, even though the humanitarian efforts and broad cooperation give a very admirable

image of the EU migration policy in its external facet, they do not indicate that the activities

undertaken have a human rights base. In this context, the only right mentioned explicitly is that to

asylum. The human rights language a nd references in general terms are kept to a minimum,

similarly to the earlier strategic documents focusing on migration. At the same time, the EUGS

recognises the need to focus on vulnerable groups such as women and children.

The focus of

activities in terms of substance is the ensuring of regular channels for mobility as well as making

returns more effective. Transit countries are to be aided in improving their reception capacities

whilst the countries of origin must be treated to prevent the causes for migration.

The EU will

build a coalition for addressing migration causes together with closer and farther States including

the Mediterranean, Middle East and parts of sub-Saharan Africa, the Gulf countries, African,

81. Altafin, Haa´ sz and Podstawa (n 6) 93-135.

82. The rigid implementation of the Dublin Regulation and manifest lack of solidarity between the Member States lead to

an open conflict between the countries of arrival (predominantly Italy and Greece) and the remaining MSs (initially

Poland and Hungary, but with time even the German government was forced to reduce the incoming migrants. The

reform package foreseeing forced relocation based on quotas, rather than voluntary acceptance of migrants, encoun-

tered lukewarm reception and remains contagious. For the complete reform package presented originally in May 2016

and updated since, see European Commission, ‘European Agenda on Migration – Legislative Documents’

ec.europa.eu/home-affairs/what-we-do/policies/european-agenda-migration/proposal-implementation-package_en>

accessed 16 March 2017.

83. In particular, the very much criticized 2016 EU-Turkey deal (see European Council, ‘EU-Turkey statement’ (18 March

2016)), but also the largely neglected EU Regional Protection Models as adopted in relation to Eastern Europe, Great

Lakes Region (Tanzania), Eastern North Africa (Egypt, Libya and Tunisia), Middle East. See European Commission,

‘The European Union’s Cooperation with Africa on Migration’ (9 November 2015) Fact Sheet.

84. EUGS 50.

85. ibid 27-28.

86. ibid.

138 Netherlands Quarterly of Human Rights 35(2)

Asian, and American.

In all these cases the migration policy measures co-exist with border

migration, conflict prevention, combating terrorism and organised crime.

Even though the EUGS devotes ample space to addressing the mobility problems, in fact it does

not present many more developments when compared to the 2015-2019 Action Plan and the 2015

European Agenda for Migration.

The former provides for enhanced cooperation using cooperation frameworks with third coun-

tries and mobility dialogues.

Aside from ensuring that the human smuggling and trafficking is

combated, the EU is to work towards ‘im proved access to justice and health for migrants in

countries of origin and transit; promote improved conditions of detention for detained migrants

and alternatives to the use of detention for irregular migrant in third countries; pay particular

attention in this regard to vulnerable migrants including unaccompanied minors’.

In the 2015 European Agenda for Migration

and the more recent 2016 Council Conclusions

on External Aspects of Migration,

the rights-based approach to migration is reduced to th e

statement that ‘[t]he EU will continue to advocate strongly for the respect of international law,

including international humanitarian law, refugee law, notably the principle of non-refoulement,

and international human rights law.’

The above description of the visibility of the human rights commitment of the EU in its

migration policy amounts to a picture, which, at least, can be described as disappointing. In fact,

the rights-based approaches to migration, they would be difficult to find. None of the statements,

be it in the EUGS or other strategic documents, echo such a shift. In fact, from this point of view

the discourse of resilience is exceptionally weak if compared to the one identified as a core in other

areas. If this is the case, one must conclude that the EUGS adds yet another layer to the EU’s

rhetoric on migration and human rights nexus failing to actually address the actual problem –

neither prioritising on the basis of the earlier experiences, nor complementing the earlier existing

policy measures. At the same time, this policy area in particular illustrates the earlier observation

according to which the EU strategies rather than projecting the future picture the present. Each of

the described present concerns, however, has a strong human rights component. Yet, making sure

that the consistent human rights guara ntees are provided to the thousands arriving in Europe

constitutes a vividly contagious political issue. It is clear that in these turbulent times the European

Union cannot risk forcing the governments of its Member States to comply with commitments that

may further destabilise the region. Or can it?

Sampling external resilience and horizontal coherence: The Ukrainian case

Among the EUGS priorities, ‘State and societal resilience’ as well as ‘an integrated approach to

conflicts and crises’ clearly have potential to advance the existing framework for the EU’s external

87. ibid 34-39.

88. ‘Council Conclusions on the Action Plan on Human Rights and Democracy 2015 – 2019’ (n 5) 21-22. See also Altafin,

Haa´ sz and Podstawa (n 6) 110-111.

89. ibid (n 5) 22.

90. European Commission, ‘Communication from the Commission to the European Parliament, the Council, the European

Economic and Social Committee and the Committee of the Regions - A European Agenda on Migration’ (13 May

2015) COM(2015) 240 final. See also Altafin, Haa´sz and Podstawa (n 6) 111-113.

91. Council of the European Union, ‘External Aspects of Migration - Council Conclusions’ (23 May 2016) 9111/16,

para 14.

Altafin et al. 139

human rights policy.

The former priority, however, raises the basic question as to how the EU’s

various (political, diplomatic, operational, financial, judicial and development aid related, and oth-

ers) tools, which have been developed for human rights promotion or have contributed to it, can be

better activated to increase resilience in States and societies. The latter priority echoes certain

objectives and actions already defined in the 2012 EU Strategic Framework on Human Rights and

Democracy along with the 2015-2019 Action Plan as well as in background policy documents.

In particular, the EUGS four grounds of the integrated approach to conflicts and crises (analysed

above) partly reflect the third general objective of the 2015-2019 Action Plan (‘ensuring a com-

prehensive human rights approach to conflicts and crises’), especially in view of its sub-objectives

19-23

). At the same time, the cited four grounds partly complement the existing framework for

the EU’s external human rights policy in such contexts. This is especially shown by the advocated

essential use of and investment in all available instruments aimed at conflict prevention, manage-

ment, resolution and stabilisation, as well as by the advocated engagement with all players nec-

essary for conflict resolution. Such approach, indeed, offers further chances to promote human

rights, monitor their violations, engage in peace-building, foster human security, nurture inclusive

governance, and create synergies between humanitarian and development assistance.

The proposed ‘integrated approach’ is then conducive to enhance resilience within the EU

neighbourhood and beyond. Resilient States and societies are seen as the safest long-term invest-

ment in the EU’s security and prosperity. Such investment is way more profitable than dealing with

erupted crises. Viewed this way, the EUGS presents a break from the past, or proves that certain

lessons have been learnt.

Our previous research on crisis situations within and outside of the EU also established the need

for more prevention and prompt action. Our case studies hardly demonstrated any examples of the

strategic use of fundamental and human rights tools for preventive purposes. They show that EU

tools deal with the consequences (rather than the causes) of fundamental and human rights viola-

tions.

Emblematically, the Ukrainian case study confirmed that the EU’s approach to the crisis

and its human rights implications was too focused on the response rather than prevention.

In this

regard, the insufficiency of EU diplomatic measures (which are effective only if followed by a

strong operational action) was also highlighted. The EU has been, to a certain extent, an inapt actor

due to its slow decision-making and long reaction time. Indeed, the application of EU tools within

months rather than weeks constitutes a weak way to react to a serious crisis.

Therefore, the EUGS

pushes to the right direction when it acknowledges the ‘undisputable link’ between early warning

and early action and accordingly articulates some prescriptions.

92. For a review of EU policy documents that have contributed to determine broad-long term objectives and short-term

actions, foreseeing the complementary use of various tools at its disposal, to advance the EU external action on human

rights and democracy, see Altafin, Haa´ sz and Podstawa (n 6) 148-161.

93. See, for instance, European Commission, ‘Joint Communication to the European Parliament and the Council - The

EU’s comprehensive approach to external conflicts and crisis’ (11 December 2013) JOIN(2013) 30 final.

94. ‘Council Conclusions on the Action Plan on Human Rights and Democracy 2015 – 2019’ (n 5) 17-21.

95. EUGS 9, 28-32.

96. Altafin, Haa´ sz and Podstawa (n 6) 222.

97. ibid 136-203.

98. For instance, the Support Group for Ukraine was early announced in 2014 by the European Commission, but became

operational too late. See Altafin, Haa´sz and Podstawa (n 6) 186, 203.

140 Netherlands Quarterly of Human Rights 35(2)

Limitedor no direct access to the conflict-tornterritory has been (and is likelyto remain in the long

run) anotherbasic issue in the Ukrainiancontext. Enabling systematicmonitoring of the humanrights

situation as wellas providing victims of humanrights violations with legal andfurther assistance are

basicpriorities. This hasarisen the need for the EU(particularly the EuropeanParliament togetherwith

the EuropeanCouncil and the EuropeanCommission/EEAS) to strengthen the cooperationwith those

‘interlocutors’ who are capableto conduct efficiently on-sitehuman rights monitoringand assistance

either via fact-finding missions (for example, the CoE mission that gained access to Crimea) or via

continuous presence (for example, Ukrainian NGOs in Crimea).

In this regard, the EUGS makesa

positive but slightreference in the aforementioned prescriptions concerning‘pre-emptive peace’.

100

Importantly, the EUGS shows the Union’s intention to face the evolving crisis in Ukraine. This is

clearly articulated in relation to the pursuit of the European security order. On the one hand, the non-

acceptance of Russia’s illegal annexation of Crimea and the destabilization of eastern Ukraine is

reiterated, in line with the demand of full respect for international law.

101

Indeed, ‘a consistent and

united approach’ is seen as the cornerstone of EU policy towards Russia. On the other hand, the intention

to enhance the resilience of eastern neighbours and uphold their right to determine freely their approach

towards the EU is underlined.

102

However, the EUGS’s potential contribution to advance EU external

action on human rights deserves further consideration in view of our previous research.

Our findings showed that, during the evolution of the Ukrainian crisis, the EU developed strong

bonds with other actors of the international community (for instance, the CoE and the OSCE),

seeking to exploit their established potential and supporting them through its financial instruments.

As noticed above, the EUGS expresses the aim to foster cooperation with the CoE and the OSCE.

The Union’s intention to reinforce ‘its contribution within and its cooperation with the OSCE as a

pillar of European security’ is significant.

103

However, the role of the EU as a cooperative partner

of OSCE at both levels (operational and financial) in the area of crisis management should be

better defined.

104

The EUGS does not do it neither for the OSCE or the CoE.

In raising a problem of credibility and legitimacy for EU external policies, the Ukrainian crisis

has made it also basically important for the EU to rely on an independ ent evidence base, so

grounding its policies on more information and databases. The EUGS emphasises the need to

enhance ‘strategic communications’ inside and outside the Union,

105

and this could improve the

Ukrainian situation too. Nonetheless, the EU does not have a systematic mode of collecting data,

which would aid it to take decisions in relation to the conflict and its possible resolution. This

would also advance the Union’s action on human rights.

Additionally,it seems that all EU tools used in the case concerned have been guided by different

political motivesand different logics. In the contextat hand (that is, the economic and politicalcrisis,

99. Altafin, Haa´ sz and Podstawa (n 6) 205.

100. EUGS 30.

101. ibid 33.

102. ibid.

103. ibid 34.

104. See Altafin, Haa´ sz and Podstawa (n 6) 205, finding that ‘in the EU-OSCE cooperative relationship, the EU remains

more a political and bureaucratic actor, whereas the OSCE diplomatic track fits more the crisis challenges. [...]

Considering the EU direct/indirect contribution to upholding human rights as channelled via the OSCE field presence

by means of the financial resources devoted to its various missions to Ukraine, basic questions arise as to whether the

former’s engagement should be seen as a model for this kind of situations and what are the limits of such engagement

in crisis management’.

105. EUGS 23.

Altafin et al. 141

the Russian intervention and annexation of Crimea, the armed conflict in the Donbass region), the

EU has struggledto assume a role as a leader.This is in part because these situations coexist andmust

be addressed in a differentiated manner whilst, at the same time, the EU must continue its long-term

support for theUkrainian reforms agenda. In this regard,the EUGS provides two significantinsights.

First, a joined-up approach for the EU’s security and development policies is expressly called:

CSDP capacity buildingmissions must be coordinated with security sector and rule of law work by the

Commission. Capacity Building for Security and Development can play a key role in empowering and

enablingour partners to prevent and respondto crises, and will need to be supported financiallyby the EU.

Our peace policymust also ensure a smoother transitionfrom short-term crisis managementto long-term

peacebuildingto avoid gapsalong the conflict cycle.Long-term work on pre-emptivepeace, resilienceand

humanrights must be tied to crisis responsethrough humanitarian aid, CSDP,sanctions and diplomacy.

106

Second, ‘resilience’ in the EU’s neighbours is advocated by highlighting the needs to support the

implementation of association agreements, deepen tailor-made partnerships and enhance ‘societal

links’.

107

However, this would also entail refining the use or allocation of EU tools that have been

developed for human rights promotion or tools contributing to it. Regrettably, the EUGS does not

indicate this essential need.

Two basic requirements not clearly implemented in the EU’s response to the Ukrainian crisis

and its human rights implications have been the prioritisation of the tools and the sequencing of

crisis response. What should be used first or second to face a crisis? Is there any logic in sequen-

cing? Neither the EU toolbox nor the EUGS help in this regard. This also deserves serious attention

during the future revision of sectoral strategies within the implementation process of the EUGS.

Another shortcoming of the EU’s response to the Ukrainian crisis concerns the inflexibility of

tools, which have rarely allowed for involving civil society – one of its strongest allies in this torn

country. The EUGS positively recognises the relevance of partnering with civil societies and the

private sector as key actors in our networked world, in line with the broader concept of resilience

‘encompassing all individuals and the whole society’. The actual implementation of this aspect

will be functional to successful outcomes of the new vision in the years to come.

Conclusion: A paradigm shift or a cherry on the cake?

This article attempted to evaluate whether the EUGS adds new significance to the EU’s commit-

ment to human rights. Textually, the grand Strategy refers to human rights both as values (without

reiterating explicitly Article 2 TEU though) and objectives (implicitly or explicitly) to be pursued

across policy sectors and institutions. This seems to reflect a transcendental approach to the five

broad priorities, but the promise of the human rights permeating all of EU policies is not marked

strongly. Regrettably, human rights are not included among the four principles identified by the

Strategy to guide the Union’s foreign and security policy (and even Article 21 TEU is not explicitly

reiterated!). Does the EUGS’s take on human rights continue or complement the Union’s earlier

approach in the field or prioritise them in the Union’s activities?

The analysis conducted in reference to the three case studies shows that the two ground concepts

of coherence and resilience advance (if at times modestly) the existing EU human rights agenda,

106. ibid 50-51.

107. ibid 25.

142 Netherlands Quarterly of Human Rights 35(2)

continuing earlier approaches (for example, ensuring a comprehensive human rights approach to

conflict and crisis) or complementing them (for example, using and investing in all instruments

aimed at conflict prevention, management, resolution and stabilisation; strengthening the nexus

between internal and external spheres and policies). Yet, the migration policy remains problematic.

This is where the EU refused to take on board lessons learnt and keeps focusing on the access to

territory and distribution of migrants, rather than expanding on its modest attempt to introduce the

human rights perspective to the policy field in its 2015 Migration Agenda.

108

There is much to say

why this policy area’s development from the human rights perspective appears politically stalled.

Here it suffices to say that the EUGS did not even attempt to enhance the focus on human rights in

the policy field maintaining the 2015 Migration Agenda basic approaches.

The concepts of coherence and resilience may be highly relevant in the determination of the

answer to the basic question raised. However, their significance is still embryonic. Coherence has

played a more and more important role since the Lisbon Treaty granted it legal significance (see, in

particular, Article 21(3) TEU for the external relations, Article 4(3) TEU for the MSs and EU

coherent action). However, the EU’s resilience-strengthening efforts require the better elucidation

of their implications for EU human rights related policies. Disappointingly, the EUGS’s broad

attention to resilience does not make explicit reference to the basic human rights dimension it

entails. The conception and the definition of resilience should be elaborated also in light of the

EU’s human rights commitment and competences. Ho pefully this will be given by the ‘Joint

Communication on Resilience’ that is expected to be released in 2017. Especially in view of the

EU’s intention ‘to support different paths to resilience, targeting the most acute cases of govern-

mental, economic, societal and climate/energy fragility, as well as develop more effective migra-

tion policies for Europe and its partners’.

109

In fact, resilience at home and abroad can be promoted

only by fighting inequalities, poverty, social exclusion, and human vulnerability, all problems that

have been generally aggravated by EU policies in the past ten years.

The EU’s commitment to take on consistently human rights as the Union’s compass for action

(in different policy fi elds) also entails to reflect on the capac ity to respond to the imminent

problems posed by the broadly understood crisis situations. Our analysis shows that the short-

term response to human rights violations resulting from a type of crisis is not clearly foreseen in the

EUGS. Here again, the two underlying concepts of coherence and resilience are highly important,

but require to be better articulated within the implementation process of the Global Stra tegy,

especially in its (by now awaited) Action Plans. Let us remember that human rights are not only

aspirational values, but above all binding standards.

Declaration of Conflicting Interests

The author(s) declared no potential co nflicts of interest with respect to the research, authorship, and/or

publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

108. The ‘urgent need to focus on migration’ was highlighted in the Council Conclusions on the Global Strategy on the

European Union’s Foreign and Security Policy (17 October 2016) 13202/16.

109. EUGS 9.

Altafin et al. 143

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The new Global Strategy for the EU's Foreign and Security Policy at a time of human rights crises

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