EDRI Response to the Consultation on the creation of a Human Rights Agency of the European Union
EDRI welcomes the creation of a Human Rights Agency within the European Union, adopted by the Council of the European Union on December 12th 2003.
In his opening address to the UN general assembly on 21 September 2004, UN General Secretary Kofi Annan stated that not since the adoption of the Universal Declaration of Human Rights in 1948 has the protection of human dignity, liberty and equity been under such pressure. As the use of Information and communication technologies increases in all fields and sectors, and as the “information society” evolves and develops, human rights are being particularly challenged by more invasive technology, greater control and surveillance, and more visible inequality. Moreover, recently adopted national and European regulation includes procedural measures which tend to affect crosscutting substantive issues as well as the rule of law, as for example the “notice and take down” provisions of the E-commerce Directive, which affect not only freedom of expression and freedom of information, but also constitutive elements of the rule of law, like the presumption of innocence and the right to a fair trial. It is therefore crucial that the European Union strengthen its obligation to respect, protect and promote human rights and the principle of the rule of law, with particular attention paid to the profound and transverse impact of information technologies developments and uses in all activities and sectors.
With the following comments, EDRI wishes to emphasize some areas of concern in response to the current draft proposal on the creation of a Human Rights Agency of the European Union, and express its interest to contribute to the work of the Agency.
!!Mandate and role of the Agency
The establishment of a Human Rights Agency is essential in order to create an effective instrument for human rights protection and monitoring within the European Union. EDRI expects that the Agency’s domains of actions and interventions will protect and promote all human rights, civil and political as well as economic, social and cultural rights, within the EU member states as well as within the EU institutions themselves. This includes an obligation to uphold the respect of the principles of democracy and the rule of law.
The creation of the Agency is especially relevant at a time when, one the hand, many new EU countries are joining through the expansion of member states from 15 to 25 countries and, on the other hand, the European legislation is extending its scope to new fields and sectors, especially those relevant to the third pillar. The Human Rights Agency should reaffirm the central role of the Charter of Fundamental Rights, as well as other general or specific international instruments like the European Convention of Human Rights and Fundamental Freedoms, the two international Covenants on Civil and Political Rights (ICCPR) and on Economic Social and Cultural Rights (ICESCR), the 1993 Vienna Declaration and Programme of Action, and the thematic and specialized International Conventions and Treaties.
To this end, it is crucial that the Human Rights Agency is anchored both at the national level and within the various EU working areas. Human rights issues cross-cut all policy areas of the European Union and the creation of one central human rights Agency must be complemented with more effective human rights mainstreaming in all EU policy areas and activities. In addition, procedural guarantees are crucial for the respect of the principle of the rule of law. In accordance with the 1993 Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights, the Human Rights Agency should reaffirm that human rights are universal, indivisible, interrelated and interdependent and that their protection is the first responsibility of governments. This universality should especially prevail on any “national reality” or “national judicial traditions” that could be invoked by member states. Furthermore, the decision to convert the European Monitoring Center on Racism and Xenophobia (EUMC) into a Human Rights Agency must not remove focus or resources from the important task of fighting discrimination at European level.
In a field with many actors at many levels, and limited resources, it is crucial that the agency not duplicate efforts already taken at national, regional or international level, but focuses on concrete measures to improve the protection of human rights at EU and EU member state level. It should be kept in mind that the main beneficiaries of the Agency’s activities are defined as the EU institutions, the Member States and civil society in general. Hence the range of activities chosen should be measured against the degree to which these three groups benefit. EDRI suggests that the Agency focuses on:
#Strengthening and promoting the protection of human rights, democracy and the rule of law within the member states, and in the EU institutions and work areas.
#Assessing human rights compliance of new EU directives and policies, including the human rights compliance of their transposition in the member states.
#Utilizing and strengthening existing networks of national monitoring and reporting with regard to human rights problems in EU member states, not least concerning diverging implementation of EU directives.
#Developing tools to assess human rights compliance and impact.
One organizational exemplar for the Agency would be the UN Paris Principles of National Human Rights Institutions, which set standards for independence, transparency, inclusiveness and governing structures.
!!Link between national, regional and international level
It is crucial that the Agency establishes effective cooperation with the many other actors in the human rights field such as the EU network of independent experts connected to the EU Annual Report on Human Rights, the European Ombudsman, the European Data-protection Supervisor, the Council of Europe (i.e. the office of the Commissioner for Human Rights and the Venice Commission “Democracy through Law”), the office of the UN High commissioner for Human Rights, including the many thematic mechanisms within this office, the European Network of National Human Rights Institutions plus International and European networks of NGOs.
In order to provide an overview and target the effort of the Human Rights Agency most effectively, we suggest that the Commission map existing national, regional and international mechanisms for human rights protection and outline means and modalities in which the Agency can add value to the work of these institutions and networks, rather than duplicate efforts.
Furthermore, it must be ensured that the national human rights institutions and NGOs engaged in protecting and promoting human rights standards at national level are actively included in the work of the Agency. This can be done by effectively engaging civil society networks of expertise as partners with whom the Agency shares information and concerns on a regular basis, e.g. by the exchange of thematic briefings and analyses, and by inviting civil society to give input to the annual strategy of the Agency.
!!Indicators and impact assessment
An important role of the Agency could be to contribute to harmonising and improving the national assessment of human rights protection by defining human rights indicators and conducting impact studies, in cooperation with existing networks and NGOs.
Not least in the context of the information society, where new communicative means essentially change the way we live, work, and develop, there is an urgent need to translate established human rights standards, and to ensure that these standards are met in a digital environment. This would require analysis of how human rights are affected by the use of technology, how the core of a given right is potentially threatened and/or strengthened, whether the societal changes call for a more dynamic interpretation of some right, and not least to what extent the existing system of protection is adequate and effective given the new developments.
EDRI will be happy to contribute to the work of the Human Rights Agency, and has considerable national and regional expertise as the most comprehensive European network of civil liberty organisations within the area of digital rights.
__About EDRI.__ European Digital Rights was founded in June 2002, and currently has as members 17 privacy and civil rights organisations from 11 different countries in Europe. Members of European Digital Rights have joined forces to defend civil rights in the information society. To date, EDRi has worked on policy areas including data retention, spam, telecommunications interception, copyright and fair use restrictions, the cyber-crime treaty, rating, filtering and blocking of internet content and notice-and-takedown procedures of websites. European Digital Rights has an active interest in developments regarding these subjects in the EU as well as EU accession countries.