Building a resilient human rights system

Michael O’Flaherty
Parradee © adobestock.com, 2023
FRA Director Michael O’Flaherty opens the high-level conference on Protection of Fundamental Rights in times of Crises in Lund on 20 April 2023. His keynote speech explores the various facets of today's human rights system and suggests ways forward to further uphold human rights across Europe.

Dear Minister Brandberg, State Secretary Andreasson, Vice-President Barley, Special Rapporteur Khan, Ms Justice Donnelly, Heads of National Institutions and Equality Bodies, and dear colleagues,

For a number of years, I served as Chief Commissioner of the Northern Ireland Human Rights Commission. That is why I have been closely following the events this week, marking the twenty-fifth anniversary of the adoption of the Belfast/Good Friday Peace Agreement.

The Agreement has been hailed as one of the world’s most successful peace settlements of recent years. What is less well known is that much of the success can be attributed to its human rights provisions. Human rights have been described as its golden thread – including guarantees of respect for human rights by the governance and parliamentary bodies, a human rights-based review of policing, a requirement for equivalent levels of respect for human rights in both Northern Ireland and the Republic of Ireland, and the incorporation of the European Convention on Human Rights, as well as the establishment of human rights and equality bodies in both jurisdictions. There is no doubt that these provisions, and the subsequent work of the human rights and equality institutions, have contributed significantly to making both Northern Ireland and the Republic of Ireland societies that are fairer, more equal, and more respectful of human dignity than would otherwise have been the case.

The Belfast/Good Friday Agreement, in other words, is a demonstration of the human rights system playing its core role – that envisaged for it in the United Nations Charter - of being foundational to peace and wellbeing.

By the way, for convenience I will use the term ‘human rights system’ throughout, as a kind of shorthand, while I acknowledge that it embraces many diverse elements at all levels, many of which are not formally related to each other.

Today’s human rights system has been in development for the past seventy-five years, since the moment of the adoption of the Universal Declaration of Human Rights. In the intervening years, a very wide-ranging body of norms has been articulated, with many of these now embedded in national constitutions. They are overseen by national and regional courts and other monitoring bodies. At all levels – national, regional, and international – what can be termed a ‘human rights architecture’ has emerged.

The developments in the European Union itself are particularly notable, and globally unique. The EU has become a source of fundamental rights law with direct effect, hierarchically superior to national norms and, in certain circumstances, with horizontal application. The EU has established fundamental rights actors, including the European Ombudsman, Data Protection Supervisor and, of course, the Fundamental Rights Agency. It has put in place specialist formations within its institutions – such as the Council’s FREMP Working Party, and, externally, a Human Rights Special Representative.

Hard law and institutions are accompanied by numerous human rights-related policy initiatives, never more obviously than in the lifetime of the current Commission, which has ten sectoral strategies in key areas of human rights vulnerability. The EU continues to strengthen its non-judicial policy enforcement capacity, with tools ranging from the European Semester to the imposition of fundamental rights compliance conditionality for the disbursement of funds. And it is important to recall the powerful global role played by human rights conditionalities in the EU’s external humanitarian and development programming.

This EU system continues to evolve. We see a growth in the fundamental rights jurisprudence of the Court of Justice, both in terms of quantity and quality. Remarkably, the EU is willing to embrace international human rights standards through accession to human rights treaties and their external control systems.

For all this achievement though, it is sometimes suggested that the EU has reached a Janus moment where, on the one hand, its human rights system is highly developed, while, on the other, it faces unprecedented challenges to upholding those rights.

That thought allows me to return to the broader question as to whether the entire human rights system as we know it at all levels is fit for purpose. Does it need strengthening if it is to be up to the task of ensuring and supporting respect for human rights in the context of the great challenges of our day – this moment of poli-crisis in terms of respect for the human rights of our populations.

The challenges are well-known, and I do not need to dwell on them. Suffice to list a few:

  • The climate crisis.
  • The Russian aggression against Ukraine.
  • The pandemic and its aftermath.
  • The scale of disinformation infesting our societies.
  • Democratic and rule of law backsliding in some countries.
  • Sharp falls in levels of trust in our governments on the part of citizens.

And, we must recall the rapid development of artificial intelligence technologies. These have the potential to change lives for the better but require close monitoring to avoid harm.

The capacity of the system of human rights norms and mechanisms to engage the great challenges of today has preoccupied my Agency in recent years. It was the subject of an expert meeting we convened last year. We have observed how the moment of crisis coincides with a time when the system, notwithstanding achievements, is under-performing and, at least with regard to certain issues, is marginalised or overlooked.

Today I will focus on some specific actors within the system, and solely in the context of the EU and its Member States.

We should start with the State, the primary human rights duty-bearer. 

Much has been achieved in embedding human rights awareness within governance structures but there remains a long way to go. It is commonplace to observe a lack of evidence-based, well-coordinated human rights policies and strategies. This was demonstrated in responses to COVID-19. Government-appointed COVID expert advisory panels rarely included human rights experts. Looking back, we see that many decisions would have profited from a human rights ex-ante assessment, including an appropriate human rights proportionality test. We also see an imbalance in attention to different categories of rights, with much more attention, at least explicitly, to civil and political as opposed to economic and social rights.

One important way to support a more visible and engaged commitment to human rights across government would be the adoption of national human rights action plans. Thirty years ago, these were called for at the Vienna World Conference on Human Rights. The take-up has been disappointing. In 2019, just ten EU Member States had a plan in place. This 30th anniversary year of the Vienna Conference it is timely to renew the call.

Beyond planning, many States could strengthen their governance and law-making human rights mechanisms. For instance, there are still some parliaments within the EU that lack human or fundamental rights oversight committees, and even where they do exist, scrutiny is often limited – for instance it typically fails to address the application of the EU Charter of Fundamental Rights.

One further governance issue has to do with the role of local authorities. It is now well recognised that this level of the State is a critical human rights player. But this has still to be adequately acknowledged and addressed. This is why my Agency supports the Human Rights Cities initiative. Of course, here in Lund, I appreciate that I am in a city that shows strong human rights leadership. I also acknowledge the important work on the topic by the Raoul Wallenberg Institute. And I recognise the many cities that, if not de jure, are at least de facto, human rights cities – something I said recently to the mayors of the Polish cities of Lublin and Warsaw, regarding their inspiring work with Ukrainians displaced by the Russian aggression.

Let me turn now to the judiciary. It, for obvious reasons, is a central actor in any national human rights architecture. However, its role is only fulfilled where the judiciary is independent, impartial, and efficient. This is sometimes not the case. Side by side with the well-known situations in a small number of Member States, statistical studies by my Agency have revealed that just over one in four EU citizens think that judges in their country are subject to government influence, with the figure rising to one in two people in some countries. Concrete measures are necessary to tackle the causes of such perceptions and to improve public trust. Take the central issue of the appointment and conditions for judges. Everywhere we need to stay attentive to methods of appointment, security of tenure, conditions of service, disciplinary procedures, term limits and pensions.

There are three other national-level actors that need to be addressed: national human rights institutions, equality bodies and civil society.

As I already mentioned in the context of the Belfast/ Good Friday Agreement, national human rights institutions are essential to the protection of human rights. They play a unique independent role between government and society, with human rights promotional, preventive, protective and remedial roles. Their establishment was strongly encouraged at the Vienna World Conference on Human Rights. Their importance was acknowledged when the UN identified the existence of a national institution as an indicator of respect for Sustainable Development Goal 16 on peace, justice, and strong institutions. These institutions are the nearest homologues that the Fundamental Rights Agency has at the national level. They are important to our work.

Sweden is to be congratulated for having recently established a new fully-mandated national human rights institution, with its headquarters here in Lund. I commend the initiative, while acknowledging with respect the prior work that was undertaken. I wish the national institution every best wish in pursuit of the ‘A Status’ classification. I assure it of the friendship and cooperation of the Fundamental Rights Agency.

This Swedish initiative, of course, throws a light on the absence of accredited bodies in four other EU States: Malta, Czechia, Italy and Romania.  I urge those States to address this gap in their human rights architecture.

Turning to Equality Bodies, we have all seen how they drive positive change in our societies, successfully promoting equality, fairness, and non-discrimination. But they too face challenges in terms of mandate, independence, and resources.  We at FRA welcome the European Commission’s 2022 proposal to create legal binding standards for Equality Bodies. We hope that the EU co-legislators will soon reach the necessary agreement for the guidelines to come into force.

I come to civil society as the final of the national actors but certainly not the least. Civil society is the beating heart in any human rights system in terms of norm development, and every aspect of human rights promotion and protection. But this heart, also, is under pressure. For a number of years now, my Agency has been reporting on the threats faced by civil society bodies and individual human rights defenders, including journalists, across the EU. We see four broad categories of inappropriate pressure: excessive regulation, impediment to accessing funding and burdensome taxation, lack of access to decision makers and, lastly, threats to life and property and associated hate speech. Obviously, the pressures vary enormously in form and scale across countries, but they exist in some form in most EU Member States.

It is encouraging that the EU has moved to address the shrinking civil society space. The Swedish Presidency put the topic, for the first time, on the agenda of the Council of the European Union. The European Commission recently issued a report on civic space. Both initiatives deserve great credit. And we will all have to remain vigilant to ensure that the wellbeing of civil society remains high on our agendas. We also need to do so in a joined-up way, recognising that existing challenges cannot be addressed solely at Member State level. This is the context for the suggestion that consideration be given to the establishment of an EU civil society protection observatory or some other form of common incident reporting platform.

I turn now and briefly to the regional level. Obviously, there is a great deal more that the EU could do to uphold fundamental rights. Very importantly, it should speedily conclude negotiations for accession to the European Convention on Human Rights. Beyond that, this afternoon I offer just two suggestions.

The first is that the EU develop its own comprehensive fundamental rights action plan. The extent of strategizing on specific issues is commendable but perhaps the moment has come for an integrated plan of the type envisaged at the Vienna World Conference. Indeed, such an idea would not even be novel to the EU since it already does have such a roadmap for its external human rights work in the form of the EU Action Plan on Human Rights and Democracy.

My second suggestion is that the time has come to reopen debate on the establishment of an equivalent of a National Human Rights Institution for the EU. The case for this grows ever more compelling as the reach of European supranational governance expands. We expect States to submit themselves to the scrutiny and the support of national institutions; why not the EU itself?

In response, it might be said that the Fundamental Rights Agency, perhaps considered together with the Ombudsman, already perform the functions of a national institution. But this is only partly the case. For instance, FRA lacks the mandate to scrutinise draft legislation, either by being embedded in the institutional legislative procedures or on its own initiative.

A renewed debate on this topic would be timely, not least considering that the EU will soon report at the United Nations on its own implementation of the SDGs, including Goal 16.

Staying at the regional level, while it is beyond my scope to speak about the Council of Europe, I must recall how essential a thriving Council of Europe is for all our efforts in support of human rights on this continent. We all need a successful outcome of the Council’s upcoming Summit of Heads of State and Government in Reykjavik.

Allow me one word on the necessary interplay of the work of the various intergovernmental regional bodies and the United Nations. There remains considerable scope to enhance our cooperation and be less self-referential. We will better serve right-holders by working together. I see that the goodwill for this is there, but it requires daily attention at all levels of our organisations. In that spirit, my Agency, among other initiatives, will continue to invest in its online interoperability tool regarding the findings of the various court and monitoring bodies of the EU, the Council of Europe and the United Nations – the so-called ‘EU Fundamental Rights Information System’ or ‘EFRIS’.   

Dear colleagues,

The title of this presentation- and the topic of many discussions that will take place over the next two days- speaks to the need for a resilient human rights system. For many, ‘resilience’ is equated to strength. However, I associate it with adaptability, with the capacity of the system to not only withstand challenges, but to use adversity to evolve and improve, and to create new iterations that reflect the realities of our world.

I began my remarks with reference to the role of the human rights system in a society emerging from decades of horrifying conflict. Allow me to conclude by recalling the extent to which great human rights advances have been born of dark moments of history - the creation of the League of Nations, the Council of Europe and the UN, the adoption of the Universal Declaration and the European Convention. The crises we face today must be confronted by a resilient human rights system that never ceases to learn, grow and adapt.

2023, the year of anniversaries – of the UDHR and the Vienna World Conference - is the year to engage the great challenges. It offers our leaders and ourselves the opportunity to revivify commitment to the system, to demonstrate its high value and to ensure that it is fully at the service of rights-holders.

See also