Upholding fundamental rights in times of crisis

Michael O’Flaherty
FRA Director delivered a speech on upholding fundamental rights in times of crisis to EU Justice ministers at the EU Justice and Home Affairs Council on 13 October 2022.

Presidency, Ministers, thank you very much for the invitation to join you today.

We can acknowledge that the regional and international human rights systems -  laws and institutions - constitute an astonishing achievement of which we should be very proud.

Especially here in Europe, we have the most sophisticated human rights protection system in the world with the European Court of Human Rights at its heart.

It is also notable that these systems continue to evolve. Take, for example, the adoption as a legal instrument of the Charter of Fundamental Rights and the growth in the fundamental rights jurisprudence of the Court of Justice of the European Union.

Today, however, the human and fundamental rights system is being tested as never before. Its purpose is to ensure respect for everyone's dignity. But it must deliver that goal in the context of multiple crises.

There is the war in Ukraine with its devastating impact for people in that country, but also right across Europe. There is COVID, and our responses to COVID; the climate emergency and its impact for human well-being; growing socioeconomic inequality; the erosion of the rule of law in some States; rampant disinformation… And all of this in the context of the social revolution that is the digitalization of our lives.

In this complex reality, the question is, can we still hold authorities to account on the basis of the treaty and legal obligations? Can human and fundamental rights be enforced?

I very much look forward to your deliberation on these key questions, drawing from your national experience.

To assist you, I would like to put before you four propositions.

The first is that the issue is existential. If we wish to continue to demand value-based societies, we must insist on respect for human and fundamental rights. The rights and the Treaties and the Charter constitute the only universally accepted roadmap to honour human dignity. As a former U.N. High Commissioner for Human Rights put it, there is no Plan B.

Second, we need to strengthen the regional protection systems.

For the Council of Europe this is a very delicate moment following the expulsion of Russia. We need to have high expectations in terms of the proposed 2023 Council of Europe Summit of Heads of State and Government.

For the EU, while observing the real progress in terms of insisting on respect for rights, we can acknowledge that there remains much that can be achieved.

My third proposition is with regard to the need to strengthen our national human rights infrastructures. Allow me to refer briefly to five elements.

  • The first concerns human rights in law making and governance. In the COVID context, we saw notable restriction of rights. This was often legitimate and justified, but it is not always evident that the restrictions were tested against the treaty requirements of respect for the principles of legality, necessity and proportionality (I think, for instance, of such issues as the need for sunset clauses in emergency legislation). The issue is again pertinent today with emergency responses to the Russian aggression. We would recommend that states make use of their national human rights institutions at these moments to assist them be compliant with the human and fundamental rights standards (we found from our own observations during the COVID period that national institutions were under-used by many states).

We also recall that a small number of rights may never be restricted, including the right to seek asylum from persecution.

Allow me to add a word on the matter of derogation from human rights treaties. It is notable that although we saw some COVID-related derogations, they were rarely invoked. This suggests that it may not be necessary to derogate in times of crisis and that it may be sufficient to rely on the limitation clauses in the treaties. And of course, we have to keep in mind that the Charter itself may never be derogated from.

  • Moving to the second element of the national infrastructure, our courts, COVID was a stress test. Much court work held up admirably, but weaknesses also became apparent. Take the issue of digitalization. In many cases, it was successful, but many challenges presented themselves, such as ensuring equality of arms, doing justice in public, regarding the existence, or not, of protocols to guide judges and court officials in novel ways of working.

Also, the rapid and encroachment of artificial intelligence applications in judicial contexts requires careful attention from a fundamental rights perspective. For instance, concerning risks inherent in machine learning and with regard to feedback loops.

  • The next element of the infrastructure that I have in mind is that of the national human rights and equality bodies. They play a vital role. They are even identified as indicators of respect for rule of law in the Sustainable Development Goals.

However, they report to us widespread under-resourcing and that this is compounded by the way States give them multiple new tasks and mandates. And you will recall my earlier point that they consider themselves underused in times of emergency.

And it is disturbing to note that there are still three EU member states without a national human rights institution.

  • If I may turn now to civil society, its role is never more evident than in times of crisis. Just look at the part NGOs play in receiving and caring for displaced people from Ukraine. For years now civil society tells us of severe pressures ranging from excessive regulation to harassment and even violence. They need our protection. I welcome the focus on their situation in this year's Commission report on implementation of the Charter.
  • Time does not permit me to address a fifth element of the infrastructure, a thriving and free media. Suffice to look at Russia to see where its absence leads.

My last proposition concerns the need to support victims of human rights abuse and violations. This has never been more relevant than now as we receive countless thousands from Ukraine, including victims of sexual violence. The EU can be proud of its attention to victims’ rights, but this moment requires an intensification of attention at the national level.

To conclude, I appreciate that standing up for human rights is an ‘all of government’ issue. Nevertheless, you may agree that Justice Ministers play a distinct role as guardians of the standards. You are, if I may if I may put it like this, the human and fundamental rights champions within governments.

We rely on you to play this essential role. And of course, you can always rely on the Fundamental Rights Agency to support you, with our expertise, our data, and our analysis.

Thank you.

See also