Fundamental Rights in External EU Law
Abstract: Fundamental rights as part of the general principles of Community law have come to play an increasing role in building the contemporary EU as being the core of postmodern constitutionalism. Internally the fundamental rights are important in order to justify a growing co-operation and to find and develop the common values of the region. The internal area has, however, a large, less famous twin in the sphere of external fundamental rights. This external twin has in this thesis three main faces and the aim is to describe and analyse them. The EU external human rights policy provides the Union with a legal framework in order to make fundamental rights concerns in the external relations. It clarifies the division of competence between the Member States and the EU. Opinion 2/94 recognised a functional EC competence to enact provisions on human rights protection, as the EU Institutions are committed to respect fundamental rights. Additionally, the Portugal v. Council case established that human rights provisions as an essential element of the external agreements are acceptable. The external human rights policy is an important factor in exercising the CFSP. The EU Agency for Fundamental Rights is established to provide with data and analysis aiming to improve the use of fundamental rights in the Union. Furthermore, the case law of the ECJ and the ECtHR set up rules and principles to be followed. The autonomous trade measures are another way of protecting the fundamental rights through the external relations. The human rights clauses are enshrined in every external agreement concluded since 1995. The most visible objective of the clauses is to create an emergency exit, a way to suspend the agreements if serious consequences of violations against the human rights and the principle of democracy appear. The clauses contain, however, potential to be more than a reactive provision. It is, on the other hand, not fully used in the contemporary EU. Fundamental rights in the external EU law include also a reversed perspective. The external law may affect the internal EU law that in the next step affects citizens of the Member States. This is largely the case regarding the economic sanctions where the fundamental rights often are subject to restrictions justified by objectives of general interest (frequently fundamental rights concerns) pursued by the Community. In several cases the ECJ and CFI have given implemented resolutions from the UN Security Council an increasing importance, an approach that have been heavily criticised. In these cases, the Courts have a tendency to prioritise the rights close connected to the aims of the Union/Community on the costs of the protection of the individual's rights. This thesis reach that the fundamental rights protection in external EU law are facing serious challenges. Firstly, the external human rights policy is still too political and vague. It needs to take further steps from being solely rhetoric to become practice. In addition, the human rights clauses can be more effective and walk from their reactive nature of today towards a more preventive application. Lastly, the practical protection in the fields like the economic sanctions needs to be applied in a way taking the individuals rights seriously.
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