In a speech Monday at the Italian Parliament, RWI’s director, Morten Kjaerum, said the values laid out in article two of the Treaty of the European Union are under challenge on many fronts.
“These values are being challenged by the attacks that we witnessed in Paris and Copenhagen this year, by the fact that Europe is the region in the world which has the most death at its borders, and by the increased racism, islamophobia, and anti-Semitism that we are confronted with,” Kjaerum said, at a conference of the Speakers of the European Union Parliaments.
Kjaerum was a keynote speaker for a session on fundamental rights in Europe.
He said despite numerous challenges, there are a number of instruments put in place in the EU and its member states in the last decade that have created a renewed momentum in bringing fundamental rights to all people in Europe.
Kjaerum said that the Charter of Fundamental Rights, which became legally binding in 2009, “has led to a stronger mainstreaming of fundamental rights into all aspects of EU legislation, policies, and strategies.”
Just days after hundreds of migrants died in Mediterranean waters after a boat capsized near Malta, Kjaerum called the asylum seeker situation urgent. “The borders of Europe are today the borders in the world with the highest number of casualties,” he said. “So Europe is still in a situation of finding solutions to the most basic element in refugee protection – namely saving lives.”
He called for European countries to establish a higher level of solidarity, create more legal avenues for people to enter Europe, and to set up common asylum reception centres across Europe.
Below you’ll find Morten Kjaerum’s entire speech
CONFERENCE OF THE SPEAKERS OF THE EUROPEAN UNION PARLIAMENTS
ROME 20-21 APRIL 2015-04-16
ADJ. PROF. MORTEN KJAERUM
DIRECTOR OF THE RAOUL WALLENBERG INSTITUTE OF HUMAN RIGHTS AND
HUMANITARIAN LAW, FORMER DIRECTOR OF THE EU FUNDAMENTAL RIGHTS AGENCY
SESSION II. THE CONTINENT OF FUNDAMENTAL RIGHTS
Chairperson, distinguished speakers, ladies and gentlemen:
Thank you very much for the invitation to address you here today on issues which are key to the further development of a Europe that fully adhere to the basic values that are so well established in article two of the Treaty of the European Union.
The values are being challenged by the attacks that we witnessed in Paris and Copenhagen in the beginning of this year, by the fact that Europe is the region of the world which has most deaths at its borders, and by the increased racism, islamophobia and anti-Semitism that we are confronted with. The values are also challenged by the disrespect in certain member states for basic rule of law principles.
The challenges are there but so are a number of instruments that have been developed in the last decade which have created a certain robustness in the EU and its Member States.
The fact that the Charter of Fundamental Rights became legally binding in 2009 created a renewed momentum. In has led to a stronger mainstreaming of fundamental rights into all aspects of EU legislation, policies and strategies. It has given the Commission the possibility of opening infringement procedures addressing fundamental rights violations. In this regard, it is worth mentioning that since 2010 the ECJ and national courts are increasingly applying the charter provisions in their decisions.
A lot more can be said on what has been achieved but let me just mention the establishment of the EU Fundamental Rights Agency. The Agency has contributed greatly to deepen the insight into some of the challenges that I highlighted and has by doing so given you and other decision makers greater possibilities to target the policies and actions.
So, the challenges are there and a number of instruments are in place. But the question still remains over how the issues can be addressed with better results. Here I would like to point to different steps, which I perceive as pertinent in order to more firmly deal with some of the issues just mentioned.
First, in all aspects of law making, fundamental rights is a horizontal obligation. Fundamental rights influence all policy agendas, from migration to internal security, from child rights to Roma issues. In this way they are an integral part of what the EU and national legislature are doing.
The concept of “fundamental rights by design” has developed slowly but surely since the Charter of Fundamental Rights became legally binding in 2009 not only in the area of security, but in more and more policy fields.
In relation to the Internal Security Strategy, which is currently being developed, an indicator of where the EU is heading is found in the JHA Council Conclusions from December 2014. It underscores that respecting fundamental rights in planning and implementing internal security policies and action has to be seen as a means of ensuring proportionality, and as a tool for gaining citizens’ trust and participation.
Furthermore, the Conclusions encourage EU Institutions and Member States…. to work together with the assistance of the European Union Fundamental Rights Agency (FRA), within its mandate, to continue to ensure that fundamental rights safeguards are integrated into the Union’s legislation and operational work on internal security.
A concrete example that illustrates the importance of fundamental rights by design in relation to the internal security is the gathering and exchange of Passenger Name Record (PNR) data. It has been a contentious area for fundamental rights since bilateral negotiations began with the USA in 2003. Fundamental rights concerns are inherent to any PNR system. Use of PNR data by law enforcement authorities to assess the risk posed by individual passengers amounts to profiling. But as FRA states in its Guide to understanding and preventing discriminatory ethnic profiling, there are legitimate and illegitimate uses of profiling.
Risks of discriminatory profiling and ‘false positive’ matches can be mitigated by introducing clear and strict limitations on purpose, protection of personal data, increased transparency of the system towards passengers and other safeguards. In this context, FRA set out a list of twelve dos and don’ts that would alleviate some of the system’s weaknesses without compromising its primary function, and which would serve to enhance fundamental rights compliance.
Another example is the issue of confiscation of passports. Such a step needs to be well considered not targeting entire groups defined by religion, nationality or ethnicity but rather concrete suspecion. Policies should be based on the rich jurisprudence from the European Court of Human Rights.
The second point relates to the urgent situation in this region of Europe in relation to the thousands of asylum seekers crossing the Mediterranean Ocean. The borders of Europe are today the borders in the world with the highest number of casualties. So Europe is still in a situation of finding solutions to the most basic element in refugee protection – namely saving lives.
First and foremost, European countries need to establish a higher level of solidarity. When countries are confronted with major refugee or migration flows a system should be in place different from the current Dublin system, which has proven inadequate in such situations. If all 28 Member States collaborated fully, the pressures currently felt by a few countries – whether they are the point of entry or their final destination, often further north – would be eased.
Second, more legal avenues for people to enter Europe could be created in order to save life but also to reduce the demand for human smuggling and the risk of persons becoming victims of human trafficking. The increased number of resettlement places that recently have been agreed is an important step in this direction. Other avenues such as student visas, family reunification, private sponsor arrangements and other traditional, legal avenues could more frequently be directed towards refugees from Syria and elsewhere. In this way Europe would contribute more to meeting the global needs for refugees.
Thirdly, reception centres could be established across the EU. Common asylum determination procedures and common return programs for those who do not qualify for protection could be jointly operated. Finally, a system of settlement within the EU should be established. Member States have spent lots of time discussing mathematical formulae to determine the exact number of refugees allocated to each state and according to which criteria. It has to be accepted that no model is perfect but that a common structure, even if it is a compromise, may help Europe more than the current national approaches.
One lesson learned from previous refugee crises in other regions of the world is that international or regional solidarity is an integral part of ensuring refugee protection. A European Refugee Protection System would therefore help to save lives. It would also contribute to defusing the drama and strengthen popular support. It would help to convey a message to the European population that we stand together to address the challenges we face. In the end, these challenges should be manageable in an area with a population of 500 million.
My next and third point relates to the question of racism and discrimination addressed in the background note to the conference.
Article 21 of the Charter on non-discrimination and the racial equality directives constitute a strong framework for combating racism, xenophobia, islamophobia, anti-Semitism, and anti-gypsism. The framework is there but needs to be implemented with greater commitment and rigour.
Our European society is diverse and multicultural: around 20 million people living in the EU are nationals of non-EU Member States, which is 4% of the total EU population. Europe has long established minority groups such as the 10-12 million Roma. Religious minorities such as Jews and Muslims constitute a still larger segment of the European population. The fabric of our society is woven from diverse cloth. Co-existence is not a choice, it is an immutable fact.
In numerous surveys FRA has documented that minorities in Europe are confronted with discrimination in many aspects of life ranging from education and health services, to being confronted with hate crime. FRA has contributed to de-masking the extent and the depth of the problems minorities are confronted with. Prior to FRA surveys, policies and actions where based on official figures from police, equality bodies, ombuds institutions and the like. However, in all the surveys conducted by FRA an overwhelming majority of the respondents – up to 80-90% – tell that they do not turn to the police if confronted with hate-crime and they do not know about the legislation and institutions that are established to protect and assist them in cases of discrimination. Consequently, data from these institutions only offers a very rudimentary if not misleading picture of the situation.
This lack of evidence has led to a relatively low level of action from authorities in most member states. Why take action in relation to a non-existing problem has often been the reaction. Following the findings from FRA on the level of hate crime across different minority groups including sexual minorities, the issue has now attracted more attention both a the EU level as well as in Member States.
That is timely and important since research by FRA has shown that daily experiences of discrimination and exclusion increase the likelihood that victims will engage in violence. Irresepctive of the persons’ religious or ethnic background. The same research also showed that a strong sense of alienation can result in greater support for violent means of solving global problems.
There is an urgency, and in member states all institutions should ask themselves how they can perfom better, and how they can contribute to a fundamental rights based inclusion policy as underscored in the Ministerial Vienna Declaration – Tackling Violent Extremism and Terrorism from just a few weeks ago. The UN Secretary-General Ban Ki-Moon expressed it clearly in his recent speech to the Security Council: “Over the long term, the biggest threat to terrorists is not the power of missiles – it is the politics of inclusion”.
In conclusion, I would like to shortly address the question of a fundamental rights policy circle in the EU. In order to strengthen the overall fundamental rights protection in the EU there is a need for a more coherent multi-level cooperation between the EU, national, regional and local levels.
Given the complexity of the challenges we face and the diversity between Member States, fundamental rights actors at different levels need to work together and develop joint efforts within their respective competencies. The European Commission’s Annual Colloquium on fundamental rights is a step in this direction as well as the Council of the EU’s announcement of an annual “dialogue among Member States to promote and safeguard the rule of law.” The FRA has established a much appreciated liaison network with all the parliaments in Member States.
These initiatives have the potential to advance the debate on how best to safeguard the values that are shared between the Union and its States. All with the aim of ensuring a high level of trust between member states, between people living in Europe and between people and democratic institutions. These levels of trust are what encapsulate a coherent and democratic Europe.