The role of human rights in the EU’s external action in the Western Balkans and Turkey

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Fraczek, Susanne
Huszka, Beáta
Körtvélyesi, Zsolt
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This report discusses the role of human rights in the EU’s enlargement policy to the Western Balkans and Turkey. It builds on the first report of FRAME Work Package 6 – Deliverable 6.1 – which gave an overview of the types of instruments used in human rights promotion in the EU’s external action as well as, in more detail, the instruments of enlargement, and presented the various inconsistencies of the EU’s human rights promotion in its external action. The objective of this report is to demonstrate, on the basis of three country case studies, how the EU’s tools and instruments operate in the enlargement context, what human rights priorities these instruments reveal, how these priorities have changed over time and how consistent they have been, and what they reveal about the weight and place of human rights within the EU’s general conditionality policy. The report will analyse which human rights issues and vulnerable groups have been prioritised in the context of conditionality requirements in EU documents or promoted by political statements or financial instruments and which have not been. The overview will also assess whether there was coherence in monitoring across instruments as well as over time. The report consists in the study of the EU’s engagement in Bosnia and Herzegovina from 2000 to 2015, in Serbia from 2009 to 2015 and in Turkey from 1999 to 2015. Considering that all the three countries examined in this report are on the enlargement track, we analyse the EU’s external policies and human rights conditionality in this context. The ultimate question of human rights conditionality is whether the EU consistently follows up on its own criteria, i.e. whether the incentives set for meeting the conditions are then actually handed out as rewards and in turn whether the failure to meet the requirements results in suspension or deferral of the integration process or the cutting of assistance funds. We are looking extensively at enlargement instruments and add, in all three cases, the visa liberalisation process because that played/plays an important role in the EU’s human rights conditionality, despite not being an instrument specific to enlargement. In the introduction (Chapter I) we will review the various explanations of the challenges for the EU’s human rights conditionality in the Western Balkans and Turkey as presented in the literature. Several authors propose historical arguments, most importantly referring to the recent Balkan conflicts; to the weakness of state structures in certain contexts; to national identities conflicting with goals pursued during enlargement; and to the various sources of inconsistencies on the side of the EU in the enlargement context. Inconsistency arguments are central to criticism surrounding the EU’s external human rights policies, a general overview and categorization of which was already presented in Deliverable 6.1. We will revisit these arguments in the concluding chapter in light of the country case studies. Chapter II discusses the EU’s human rights policy towards Bosnia and Herzegovina. The period before the Treaty of Lisbon and tools employed under the Stabilisation and Association Process (SAP) before candidacy will be analysed primarily through studying the EU’s policy towards Bosnia and Herzegovina (BiH), which until today has not been able to move beyond the stage of association. BiH signed the SAA with the EU in 2008 but it was implemented only in June 2015. Given that BiH had mostly been stuck in its relations with the EU in the post-Lisbon period, it would be difficult to understand the present situation without investigating pre-Lisbon developments. Therefore, the analysis of the EU’s instruments will go back to the year of 2000, the beginning of the SAP and will end in November 2015 when the last progress eport was published. Given the complexity of the Bosnian institutional context, the chapter devotes a separate part to explaining the current constitutional setup, and the general context the EU was operating in Bosnia in the 2000s. This is completed by an overview on the main human rights challenges, providing a background to the EU’s human rights conditionality: the problem of refugees, minorities, ethnic segregation in schools affecting children’s rights, the need for and failed attempts of constitutional reform, the prosecution of war crimes, and the problems of media freedom. This is followed by the assessment of the applied EU instruments. The first period to be analysed spans from the beginning of the SAP in 2000 up until the signing of the Stabilisation and Association Agreement (SAA) in 2008. During this time frame the relevant instruments included the EU Road Map in 2000, the Feasibility Study in 2003, the 2004, 2006 and 2008 European Partnerships, Community Assistance for Reconstruction, Development and Stabilization (CARDS) and Instrument for Pre-Accession Assistance (IPA) documents, the SAA signed in 2008, progress reports, and EP resolutions. We review these instruments in order to establish the EU’s human rights priorities and to check how consistent these priorities were across instruments and over time. During this period the EU focused on a few human rights topics such as minority rights and the rights of the Roma, refugee return, broadcasting reform which relates to media freedom, the consolidation of human rights institutions and cooperation with the International Tribunal for the Former Yugoslavia (ICTY). Among these only two became essential conditions that were only indirectly related to human rights: ICTY cooperation and the broadcasting reform. By the end of this period, there was significant progress in the creation and consolidation of human rights institutions, in the area of war crimes prosecution and refugee return. EU influence played a partial role in achieving these results. The High Representative’s engagement was at least as important, and the Office of the High Representative (OHR) and the EU coordinated their actions between themselves in several issue areas, while many reforms were outcomes of the OHR’s interventions. Although the focus of our analysis is human rights, it is important to bear in mind that the EU had a much wider agenda for BiH centring on post-conflict reconstruction and state building. The chapter concludes that on the whole, human rights conditions seemed to have remained of secondary importance in the EU’ conditionality policy towards Bosnia. The primary focus was the stabilisation of the country and making it more functional, somewhat in contrast to the EU’s rhetoric on human rights as expressed in the progress reports. The next section of Chapter II discusses the period after 2008 when the EU’s leverage over Bosnia significantly weakened. During this time, the visa liberalisation process provided a crucial window of opportunity for the EU to exert some influence. This proved to be the most effective tool among all the applied instruments in terms of human rights promotion. Therefore, we give a detailed account of the visa liberalisation process with a focus on its human rights related conditions. We also look at the more traditional tools such as the yearly progress reports, enlargement strategies, IPA documents and Council conclusions, while also analyse the special instruments that the EU employed in Bosnia in order to keep the country on the integration path, such as the Structured Dialogue on Justice, the High Level Dialogue on the Accession Process and the Compact for Growth. After the assessment of the instruments, we examine a few selected topics in terms of achieved progress. This allows us to assess the impact of the EU’s human rights conditionality through the examples of anti-discrimination, children’s rights, Roma rights and media freedom. These areas have received a lot of attention from the EU since the early phase of the SAP, thus a close investigation into these areas should demonstrate the impact of EU instruments on domestic policy fields. However, we found that since the signing of the SAA in 2008, Bosnian political leaders have been reluctant to comply with EU conditions and, as a result, the EU enjoyed a relatively low degree of leverage over the country. Conditionality thus remained limited in terms of its effect on human rights performance. Chapter III presents the case study of the EU’s human rights policy towards Serbia, which allows for analysing the tools applied to accession candidates. Comparing the cases of BiH and Serbia can also reveal whether the different degrees of EU leverage lead to differences in human rights performance. Since 2011 – marking the extradition of the last remaining high profile fugitives to The Hague – Serbia has shown a strong commitment to EU integration and willingness to comply with EU conditions, primarily demonstrated by its approach to Kosovo. As a result, Serbia was awarded EU candidacy in 2012 and could open accession negotiations in 2014. Since the EU has regarded Serbia as sufficiently meeting the Copenhagen criteria, including the respect of human and minority rights, as opposed to Bosnia, a higher level of protection of human rights could be expected. To test this, we look at human rights performance on the ground as well as the reaction of the EU, through assessing the use of the various instruments. After providing a brief general background of the relations between the EU and Serbia since the fall of the Milošević regime with a view on the changing context of rule of law and democratisation, the EU’s tools and instruments will be presented in a systematic way for the period of 2009-2015 with a focus on their human rights dimension: the visa liberalisation process, progress reports and enlargement strategies, the European Commission’s opinions on Serbia’s membership application, the Negotiation Framework, the Screening Report for Chapter 23, IPA documents, Council conclusions, dialogues between Serbia and the EU, and the European Parliament’s resolutions. Given that Serbia’s relations with the EU were upgraded to the highest level before actual membership, we would expect improving trends in human rights. We look in more details into conditionality concerning national minorities, Roma rights and media freedom in order to see what has been the content and the impact of EU conditionality. The analysis reveals a mixed picture about human rights performance in Serbia, with serious relapses in some areas such as freedom of expression and media freedom. Clearly, Serbia progressed on the EU integration path due largely to its efforts to improve relations with Kosovo. Now that accession negotiations have started, hopes, especially in the NGO community, are high that the process will advance reforms already initiated in key areas once Chapter 23 is open. Chapter IV gives an account of human rights promotion through EU enlargement policy in the case of Turkey, another accession candidate country. The analysis will cover the period after Turkey was awarded candidate status in 1999 up to the publication of the 2015 Enlargement Strategy and the Progress Report in November 2015. First, we will present an overview of Turkey’s accession process and its changeful relation with the EU as an enlargement country which sets the framework for the ensuing analysis. The EU’s efforts to promote human rights are assessed on two levels: (1) on a more general level, we look at the instruments applied and the priorities chosen on the part of the EU and these related to the reforms taken on the Turkish side; (2) at a closer look, two specific areas will show how conditionality relates to domestic implementation. The analysis looks into the use of the following instruments: human rights conditionality based on the Copenhagen criteria as a central instrument, accession negotiations with their human rights relevant formal and methodological elements, the Positive Agenda launched in 2012, the annual progress reports as monitoring tools as well as the accompanying enlargement strategies, financial and technical assistance. The four Accession Partnerships adopted since 2001 as well as relevant Council conclusions and EP resolutions will also be incorporated and discussed in these sub-sections. Similar to the Bosnian and Serbian cases, the visa liberalisation process will deserve special attention, given the entailed human rights requirements and the current efforts to advance the process. The overview will allow us to trace consistencies and inconsistences on this more general level and assess developments over time. At the end of the chapter, the analysis will look into two human rights issue areas in more detail, the promotion of gender equality and the respect of minority rights. These two issue case studies will allow the assessment of the impact conditionality had on the ground, presenting a more in-depth analysis of two areas that both revolve around the concept of equality, a central feature of EU human rights policy. This enables us not only to evaluate the EU’s impact, but also to lay the basis for specific policy recommendations, informing our final conclusions. In terms of our findings about Turkey, we have seen that the incentive of starting accession negotiations triggered considerable human rights reforms in the years 1999-2005. Yet, after the launch of negotiations, reforms slowed down as the credibility of the membership perspective faded, and several chapters were blocked by Member States for unilateral reasons. Although the rapprochement between Turkey and the EU over the refugee situation since autumn 2015 has instilled new dynamics into the accession process, the current situation can be characterised as one where the enlargement-inherent power asymmetry between the EU and Turkey is changing to the benefit of Turkey. Such a shift in power relations makes it more difficult for EU to apply credible and consistent human rights conditionality and to not ‘sell out’ its values. Chapter V presents conclusions by assessing the consistency and coherence of the EU’s human rights policy across the three cases. All the three case studies revealed inconsistencies between the EU’s rhetoric and action. We found that human rights have played an important role in the EU’s conditionality policy in the two Balkan cases, but verbal commitments were often not followed by actions, which undermined the credibility of conditionality policy. In the case of Turkey, we witnessed a tension between the political decision to upgrade the country’s status on the enlargement roadmap and the more consistent assessment, by the Commission, of the country’s actual progress. Real progress in terms of implementation happened in the target countries when the EU was willing to use negative conditionality such as regarding ICTY cooperation or invested financially into a policy field (IDPs, refugees and the Roma). Concerning Bosnia and Serbia, the EU has generally refrained from applying sanctions for the inadequate fulfilment of human rights criteria except for the issue of ICTY cooperation and compliance with the Sejdić-Finci case. By contrast, vis-à-vis Turkey, the EU did apply legitimate sanctions as part of its human rights conditionality before the opening of accession negotiations. However, after launching the talks, the unilateral blockage of chapters, especially Chapter 23, for bilateral reasons, can be seen as the key element of inconsistency in the case of Turkey. It might be surprising that the analysis showed that the most potent tool of human rights conditionality in both Balkan states fell outside of the enlargement framework and of human rights conditionality instruments. This was visa liberalisation, and the two Balkan cases suggest that the EU could similarly use its leverage in the case of Turkey, too. There is room for improvement in the operationalisation of human rights: the priorities set by the EU tended to be vague and blurred, keeping it unclear how progress in their implementation is to be measured. Moreover, human rights conditions are often not linked to the different stages of EU integration and are presented instead as general requirements formulated in broad terms. For a more effective conditionality policy, conditions should not only be credible but also small-scale. The EU should provide feedback in the form of sanctions or rewards on incremental changes along the EU integration path. Finally, the inconsistencies between the EU’s expectations towards candidates and the performance of EU Member States might also weaken the power of conditionality, for instance in the case of the right for asylum, Roma rights and media freedom. Based on the observations made in the studies, the report concludes with a list of policy recommendations.