EU political pressure alone cannot save the rule of law
On Wednesday (27 July), the European Commission issued the Polish government with recommendations on how to restore the rule of law. The government now has three months to comply, failing which the commission could activate the Article 7 procedure, which can lead to sanctions such as a loss of voting rights.
This is an unprecedented display of support by the EU for its fundamental values. But international pressure alone is not enough to save the rule of law, democracy and human rights in Europe. If the Union wants to preserve progressive ideals forged in the aftermath of World War II, it needs to convince the general public they’re worth holding on to.
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Attacks on the fundamentals of the democratic state – independent courts, parliamentary scrutiny, a depoliticised civil service and a neutral public broadcaster – are not confined to Poland.
Orban has already turned Hungary into the EU’s first "illiberal" democracy, and Croatia and Slovakia show signs of following suit. Other EU governments have attacked particular rights guarantees: Spain’s previous government effectively outlawed spontaneous public protest and severely curtailed access to the courts; the British government has been touting abolition of its Human Rights Act.
Two other trends are common to most EU countries: governments engaging in large-scale invasions of privacy through mass surveillance and weakening media freedom and independence.
Rollback of European values
The EU’s institutions have come under pressure to monitor EU countries and punish governments flouting European standards. The commission created, and is now using, its rule of law framework.
Some capitals have called for governments to assess each other in the EU’s Council through annual dialogues’ on the rule of law, but these so far have been weak. The European Parliament wants more, but the commission - which has the power to propose new legislation - is likely to refuse parliamentarians’ calls for a new mechanism that assesses all governments regularly.
Giving the Union more powers to pressure backsliding governments will help to protect the Union’s values. But it is only part of the answer.
Even if there is enough political will to create and use new powers, international pressure by itself is insufficient to make governments reverse their retrogressive reforms.
The rollback of European values is being carried out not by dictatorships, but by democratically elected governments that enjoy broad public support. In the face of large-scale approval from their electorates, governments are unlikely to bow to international pressure. This much is clear from the intransigence of the Hungarian and Polish governments, despite widespread condemnation.
Feed efforts of existing movements
Democracy, the rule of law and human rights do not speak for themselves. The fact that these values are designed to protect the general public from abuses of power has not been enough to convince many people that they are worth defending. If the Union wants to safeguard its fundamental values, it must create support for them among Europeans.
Pressure from the EU will only be effective if it feeds efforts of an existing national movement.
The EU has a well-established practice of promoting its values in countries outside the Union. The European Instrument for Democracy and Human Rights and the Instrument for Pre-Accession Assistance have been used to support civic education, civil society organisations and media freedom, globally.
However, inside the Union funding to promote human rights and the rule of law tends to be focused on narrow goals like training judges, lawyers and civil servants on EU law.
The EU should identify successful examples of when and where it has sown grassroots support for its fundamental values outside Europe and replicate these inside Europe.
Public support is needed
If the Union is to reach the general public, then it will need to support civic education – arguably the values taught through the education system are one reason why the German population has been relatively generous towards asylum seekers. The EU should also support media independence, so that Europeans are less easily manipulated by biased reporting. And finally, the EU should support civil society organisations to learn new ways of working.
Rights NGOs have traditionally concentrated on litigation and lobbying politicians. But this has left them out of touch with the general public. The Union could fund rights NGOs to develop new tools, so that they can convince the public to protect human rights in the same way that Greenpeace has convinced the public to protect the environment.
Legally, this would just require the EU to tweak programmes it already has in place that support the rule of law and human rights the inside the EU. The Union could also make the most of its efforts by coordinating with other governments (like Iceland and Norway) and private donors that already fund this kind of work inside Europe.
As the EU institutions wrangle over whether to create and use new powers, the rule of law, democracy and human rights are running out of time. The Union has no reason to delay in deploying funding – a less politically controversial tool – to create public support for European values.
Dr. Israel Butler is advocacy consultant to the European Liberties Platform, a network of European human rights watchdog non–governmental organisations (NGOs).