14th Warsaw Human Rights Seminar

Michael O’Flaherty
FRA Director, Michael O’Flaherty, delivers a keynote speech during the 14th Warsaw Human Rights Seminar on 24 October.

Thank you to the government of Poland and to the Council of Europe for the invitation to speak.

My first international human rights job was in a context of great crisis: the war in former Yugoslavia, in particular, Bosnia and Herzegovina, where I supported the mandate of Tadeusz Mazowiecki, the great former Prime Minister of this country. I recall how much we learned about ‘doing’ human rights in times of crisis, from that experience.

We learned about the importance of monitoring and reporting. We learned about the need for patience and long-term perspective; we only saw criminal justice take place years after we did that monitoring and reporting. And if I may, I also learned a personal quality from Mr Mazowiecki; that of the need for absolute integrity in our work.

I moved on from Bosnia and Herzegovina and I continued to learn in different conflict settings around the world, including in West Africa, across Asia-Pacific and then in Northern Ireland, where I served as the head of a post-conflict national human rights institution.

I outline all of this to show what good preparation it was for a job in today’s Europe, the Europe of poly-crisis. Allow me to give an EU dimension to this poly-crisis.

  • There is the Russian aggression, which is of existential significance; if Russia succeeds, the modern, values-driven Europe collapses.
  • In the EU context, and for my agency, it is about welcoming four million Ukrainians into our societies and treating them with respect. I want to honour and acknowledge the extraordinary generosity of Poland in receiving so many from Ukraine.
  • The poly-crisis involves learning from Covid and the aftermath, and the extent to which Covid remains a burning human rights issue today. I think of all of those children who have been impacted in terms of the loss of crucial development years.
  • We have the crisis of disinformation, taking many different forms. Right now, we see the extraordinary degree of disinformation regarding the crisis in the Middle East.
  • There is the climate crisis. It has become real for many Europeans, in a way that we have not seen before, with the cruel temperatures and raging fires throughout the recent summer months.
  • Allow me to say a word on the particular crisis of racism in our societies, because there is a danger that we will downplay it or diminish its importance. My agency will soon publish a new report, showing that we have a shockingly serious problem with endemic racism across the EU. The crisis of the failure to engage meaningfully with the plight of the Roma community, and the crisis of racialising migration.

So then, what is the EU doing in respect of all of this, how it is engaging the crises? Let me give you examples of some achievements that have gone under-acknowledged in recent years- I will focus on the EU internally, given my agency’s mandate. I do this with a high degree of awareness that the EU is not infallible; it does get things wrong. Nevertheless, we should acknowledge where there has been growth in capacity to deal with tough times.

First of all, the Charter of Fundamental Rights has gained deeper and deeper traction every year in recent times. We see it increasingly being used in courts; we do not see it used enough in parliaments. That should be the next goal.

We see fundamental rights increasingly visible in the secondary legislation of the EU, increasingly in the context of engaging the great issues of the moment. For example, the fundamental rights requirement built into the legislation regarding the Frontex agency, which has, over the last number of years, triggered profound difference in how that agency works.

We have the accession of the EU to human rights treaties, for example, just recently, the Istanbul Convention, and hopefully very soon, the European Convention on Human Rights.

And then we have specific pieces of legislation designed for crises that have operated rather better than we had expected. The best example is, of course, the Temporary Protection Directive.

The European Court of Justice has increasingly become, what I would describe as, a human rights court, with a sturdy approach to issues of human and fundamental rights. A number of EU institutions have either become stronger in their capacity with regard to human rights or have self-defined as ‘human rights actors’, which, again, strengthens our armoury.  

The Ombudsman of the European Union is now willing to go far beyond the dry administrative function you might have imagined, to become a champion of issues related to human rights.

Not many people know this, but my own agency, during Covid, was given a new mandate, which allows us to be more flexible, more capable of engaging with the issues of the moment. On this basis, we were able to contribute in the context of Covid, and now, in our chronicling of the situation of four million Ukrainians in the EU.

Moving from institutions to policies; again, it is under-acknowledged, the extent to which the EU has embedded its ‘values strategies’ in its policy approach. There are 11 of these strategies, from Roma to combating racism to disability to LGBTIQ communities. The list goes on. All these strategies are, by the way, data driven. They are based on data generated by the Fundamental Rights Agency. They are a valuable innovation in the current European Commission context.

We also see human and fundamental rights increasingly visible in the conclusions of the Council of the European Union, for example, around the struggle against antisemitism.

Beyond policy, we have strengthened monitoring and enforcement tools in the area human rights. They are new and tentative, but they comprise a very strong basis on which to build.

We have the annual rule of law reports, which are then debated within EU institutions. They are increasingly accompanied by national rule of law dialogues. We have a rule of law peer review mechanism in the Council of the European Union; albeit, there is a long way to go but it is an important beginning.

Finally, we have what will be eventually a groundbreaking initiative, which is the fundamental rights conditionality of EU funds. In the years to come, we will see the full force of this development.

All of the elements I have mentioned until now should be taken into account in any assessment of the EU’s capacity to engage crisis. What I would like to do now is to turn to the epicentre for the protection of human rights: the national level.

It is important to acknowledge the extent to which, in coping with all these crises of the recent and current times, we have learned so much about the role of the national level actors. To put it another way, the role of national actors has been reconfirmed, re-validated, in the recent past.

I would like to focus on three clusters of national actors who play such an important role, and that is national human rights institutions, civil society, and cities.

First, national human rights institutions. I knew, personally, that they can play a really important role in stabilising complex and fragile national situations; I knew this from my time at the Northern Ireland Human Rights Commission, which built bridges across several divided communities.

I was and continue to be struck by the role they play right across Europe in the context of some of our great crises. Look at the role they played with regard to Covid. Who were the voices of necessity and proportionality at the national level when limits on our rights were imposed? It was national human rights institutions. Who is it today that is putting in independent monitoring at our European borders? Again, it is national human rights institutions.

It is no wonder that the UN has identified the presence of an NHRI as a critical indicator regarding the delivery of the Sustainable Development Goals. They are crucially important, and we must invest in them.

In the EU context, we have to address some gaps. For instance, there are still four EU Member States that do not yet have an NHRI in place- that is unfortunate. We have seen some backtracking: in one EU Member States, the NHRI was re-categorised by the UN as ‘B status’ rather than ‘A status’, which is, again, to be regretted.

We have a lack of resources for NHRIS everywhere, and finally, we do not use them enough. I mentioned their role during Covid; but they had to take the initiative, they had to knock on the government’s door. I would like to see a future where, in a crisis like that, the NHRI is automatically on that committee advising the government on the protection of human rights.

Turning to civil society. I can think of not a single human rights innovation in history that did not somehow have its origin in civil society. In the context of crisis, civil society has always played such a crucial role.

It does not matter how devasted a country is – and I have been to enough devastated countries – but everywhere, civil society stayed alive. It may have gone quiet, it may have had to act under the radar, but it never disappeared. Again, that is the case in the context of our current great crises in Europe.

Where would we be in combating racism without civil society? Where would we be in combating the climate crisis? However, in the EU, civil society is facing great pressures. My agency reports on it every year. We see inappropriate regulatory pressures, financial pressures, the lack of access needed to influence decision-makers. And, of course, we see threats of violence and harassment against people and property.

These pressures take different forms in different places, but it is an issue we have to contend with. To do so, we must re-invest in recognising the critical role of civil society in all its breadth.

The time has come to re-engage, in a meaningful way, faith communities. We have allowed that relationship to slip away; there may be legitimate differences, but our potential to work together on common goals is enormous and under-developed.

The third and final of the national actors is cities. Eleanor Roosevelt, in a famous speech, put forth the idea that if you do not go local with your human rights, you miss the whole point. And so, we have always acknowledged, in some way, the role of the ‘local’, the role of the borough, the role of the city.

However, it has been tepid. We have had the Human Rights Cities movement for years, which has done very important work. But it has taken some recent situations, at least here in Europe, to wake us up to the primary role of the city as a driver of human rights protection.

Take, for example, the reception of Ukrainians. Who was in the lead, from the very first days? When we went to the borders of Poland and elsewhere, seeing how Ukrainians were being received, it was not the central government that was in the lead, it was cities, towns and villages that were taking the initiative.

I had the privilege, recently, of meeting with the mayors of Lublin and Warsaw, and they explained to me the role they took. Without them and without the initiatives of cities, we could not have survived.

That is the basis on which my agency is increasing its commitment to cities. We have developed, with cities, a framework on what it means to be a human rights city, and we will shortly publish a report on how cities have received Ukrainians. We will stay invested.

Allow me to come back to the European level in order to make four final, brief considerations.

First, we will not ultimately resolve the great issues that we confront, at least in the EU, if we do not get more serious about the principle of EU solidarity. We do not have sufficient demonstrations of solidarity across our Member States. It is unreasonable that countries such as Greece and Italy are somehow left to sort out the migration situation themselves. We must have a far greater sharing of responsibility under the EU principle of solidarity.

Secondly, we still need to strengthen our institutional architecture for the protection of human rights inside the EU. We need, frankly, a national human rights institution. Why do we insist on an NHRI at the national level, and then when we look at the supranational level, in a context of much shared sovereignty, we do not seem to put the same demand on it. I would very much hope to see, some time in the near future, a reigniting of that debate in the EU. My agency, the Fundamental Rights Agency, is not a national human rights institution. It would need a bigger, broader mandate and more resources, if it were to take on that role.

Thirdly, one of the great values of this meeting, and one of the reasons I was so keen to come, is the extent to which it allows the voices of the different parts of the human rights system to speak with and to each other. We had already this morning the UN voice, the OSCE voice, all in a Council of Europe space, and now I am speaking for the EU. But we do not do this often enough. We need to be speaking to and working with each other to stand up for human rights in our territories.

There is an initiative of my agency, the Fundamental Rights Forum, which takes place every three years and is set to take place again in March of next year, which is of a similar spirit. But we need far more of this type of engagement if we are to fix our shared problems.

My final point is that it is easy to despair, especially now. It can be very tempting to say, “It is all falling apart, we are not succeeding, all our initiatives are not going to stem the negative tide.” I would like to say that it is so important that we remain hopeful. I have many reasons for hope. Let me give you one. We are in Poland right now, in the country that produced some of the great leaders of the modern human rights movement. We are in the country of Lemkin, of Wojtyła, of Mazowiecki.

When we recall these extraordinary people, we can stand on their shoulders, and on their shoulders, we can look in a solid, meaningful way at a future where human rights is actually respected.

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