The Role of Human Rights in EU-US bilateral Relations
Ziegler, Tamas Dezso
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This report provides an analysis of the major questions relating to the relationship between the European Union and the United States of America in the field of human rights. It is the fifth Deliverable in Work Package 6 of the FRAME project. FRAME is a research project funded under the EU’s Seventh Framework Programme (FP7) focusing on the impact of the EU’s internal and external policies on human rights worldwide. Within FRAME, the focus of Work Package 6 is on Regional Partnerships and Bilateral Cooperation. Consequently, this report is one of the case studies on European Union’s external relations. Other similar case studies deal with countries in the European Neighbourhood Policy, ACP countries and bilateral cooperation with emerging economies. This report aims to analyse the different dimensions and levels of EU-US relations, to survey the instruments the EU uses in this relation and to provide some recommendations for future EU actions. It provides an overview of the main similarities and differences between the EU and the US regarding human rights, and measures the influence of the EU on the state and practice of human rights in the United States. Likewise, this report analyses how the United States may affect human rights in the EU and its Member States, notably in light of US policies that are strongly criticised by the EU from a human rights-based perspective. To conduct this analysis, the authors selected three case-studies: 1) capital punishment 2) data protection and surveillance programmes and 3) the problem of extraordinary rendition. Beyond the public attention they received, the reason behind this choice is the fact that the EU’s position and available space for action is different in all of these fields. Regarding capital punishment, the EU has a firm and standard position, and the report analyses the EU’s one-way impact on US legal evolution. Analysing data protection and surveillance programmes shows a two-way impact, since actions of the US, the EU and EU Member States have had impacts and consequences on the legislative developments on both sides of the Atlantic. Finally, extraordinary rendition shows the US’ direct and strong impact on EU Member States. Thus, in this latter case, the authors had to provide an analysis of the relating case law of the European Court of Human Rights as well. The Introduction of this report (Chapter I) gives a detailed description of the methodology used, which is based on an analysis of adopted legislation and other relevant policy documents. It introduces those general aspects of EU foreign policy that can be important regarding the topics at hand, including relevant policy documents like the Strategic Framework and Action Plan on Human Rights and Democracy and the US-related parts of the EU’s reports on human rights worldwide. It surveys existing US-specific EU actions, dialogues and meetings as well. This part of the report also analyses the US’ participation in international human rights covenants, and tries to make the reader understand US exceptionalism as well as the many factors that influence human rights in the US political system. This chapter shows that there are divergent factors that make US policy making in the field of human rights different in some instances from the European approaches. Chapter II deals with the topic of capital punishment and explains the EU’s position on the death penalty in detail. This chapter consists of a European and a US part. First, it reviews the relevant international agreements, general EU legislation and policy papers like the EU Strategic Framework and Action Plans on Human Rights and Democracy (2012-2014, 2015-2019) or the EU Guidelines on Death Penalty. It also measures the influence and effects of EU actions in the US, which contain targeted actions, public criticism, direct actions and sanctions. Finally, this chapter addresses the US legal background by explaining the most important laws and landmark cases. It also analyses the most important concerns that are regularly raised in EU documents, in the press and in academia regarding the death penalty in the US. The chapter shows that EU actions in this field were only partly successful, and also that we find inconsistencies among these actions. Chapter III summarises the background of personal data protection and EU-US policies on surveillance. This chapter explains the controversies surrounding US surveillance programmes like UPSTREAM or PRISM, and sheds some light on similar programmes or legislation of EU Member States. It explains the relevant rules and policies of the EU in detail, and also the EU’s answers to public criticism. It places special attention to the latest legislative developments, the Schrems judgment of European Court of Justice and the notions behind the EU-US Privacy Shield. Furthermore, it summarises the most important US laws, as well as the problem of applying international agreements regarding surveillance and private data in the US. Finally, it gives a summary of related issues. The chapter raises some concerns about whether cooperation with the US in this field would grant safe protection of EU citizens’ data in the future. Moreover, the report highlights the fact that the record of some Member States also raise serious concerns. Chapter IV deals with the practice of extraordinary rendition and the ‘war on terror’. This chapter focuses more closely on the European human rights effects of the war on terror. This chapter comprises two parts, a general part and specific section on the EU-US extradition treaty. The first explains the general context, including EU Member States’ participation in extraordinary rendition. It also focuses on specific issues such as the participation in rendition, facilitating air travel, interrogation, creation of secret prisons, and the EU’s relevant responses, and on proactive measures to prevent extraordinary rendition. The second part puts the related EU-US relations into a context, and also deals with special topics like irreducible life sentences, detention conditions and non-refoulement guarantees, among others. This chapter concludes that European States were not proactive enough to protect human rights within their jurisdictions in relation to extradition. The last chapter (Chapter V) summarises the key findings of the report and formulates recommendations for future EU actions.