The EU should become stronger and more outspoken well before the Albanian elections taking place on 23 June 2013. This requires it to keep its distance from all parties, while strongly defending core principles, including the rules that govern the core bodies involved in election administration.
The EU goal is to contribute to the respect of rules that will allow free and fair elections. Following legitimate elections a legitimate winner would form the next government, and a gracious loser would concede and form a credible opposition. This would open the door for cooperation between all serious Albanian parties to take their country and the whole Balkans further on the road to European integration.
A dream? Or a realistic goal that deserves timely European support?
Presentation on Albania in spring 2013 in Edirne
Interview with Gerald Knaus published in Osservatorio Balcani e Caucaso
Albania: crucial elections for Europe
The EU should be unambiguous about the forthcoming parliamentary elections in Albania, taking a joint position spelling out concretely what are the red lines that must not be crossed. An inteview with ESI chairman Gerald Knaus
What can the EU do to prevent polarization in Albania surrounding the upcoming elections?
Two things are important. The first is not to have any illusions. Most previous Albanian polls have been marked by controversy, with irregularities and election results challenged. This was also the case in 2009. After the elections politics was paralyzed, the parliament was boycotted, some in the opposition went on a hunger strike.
One can hope for a positive surprise and an uncontested election in June 2013, of course, but sound EU policy should be based on the opposite assumption: that these election will be close and contested and that all parties will try to put pressure on the election administration. In the end, whoever is declared to have lost will challenge the legitimacy of the whole process and protest. And the big loser in such a scenario will be Albania as a whole.
Therefore, since this is a possible, even, likely outcome it becomes all the more important that the EU has a united, clear and principled position already before the elections. The European Union has stated that it expects these elections to meet “European and international standards.” It now needs to spell out more concretely what this means, what the red lines are that must not be crossed. This does not reduce its flexibility. On the contrary: it is a precondition for it to have any real influence. If red lines are crossed and important rules are broken, as we saw recently in the unlawful dismissal of a member of the Central Election Committee, the EU must speak out more forcefully than it has done so far.
Above all the EU needs to try to stay united. The European Commission, all the big political groups in the European Parliament, from the Center right to the Liberals to the Center left, all key member states, like Italy and Germany, should tell the parties in Tirana the same thing: here are our common red lines. Do not be tempted to cross them. And then, whoever wins, the loser also has to accept the result as legitimate.
What does this mean concretely? Recently the Albanian parliament has dismissed one of the seven members of the Central Election Committee (CEC)? Should the EU declare in advance that this was unlawful, and that therefore the coming elections will not meet its standards? Does this not reduce EU leverage?
Elections in Albania will not be perfect. They cannot be, and there are even problems in established democracies. But some problems are much more serious than others. This is why we argue for a need to focus on what is essential, not on what is merely desirable.
For this reason we have proposed a few specific red lines, concerning the core issues always disputed in Albania: the election administration supervising voting and counting, and the process of adjudication of complaints and appeals. Complaints in particular must be resolved through strict observation of Election Code procedures. If there are problems this can be resolved through a credible adjudication mechanism. But in this process the role of the Central Election Commission is vital.
Albania has a good Election Code today. In this Code some rules are crystal clear: members of the election administration cannot be removed for reasons unspecified in the Election Code. Central Election Commission members are political appointees and voted in by parliament, but then they become something else, like US Supreme Court judges chosen by the president and the Senate: they become guardians of rules. There is a reason why they are appointed for six years and are not to be dismissed unless they commit a crime. They must act on the basis of the Election Code and defend it, not engage in party politics. Will they want “their” party to win? Perhaps, but this should be irrelevant to how they do their job.
Now, to accept from the very outset that, in any case, the CEC will and can never be apolitical in Albania, is to give up on basic standards even before a single vote has been cast! This sends a terrible message.
Some might say: it is unrealistic to expect the recent dismissal of a CEC member to be reversed. And perhaps everything will go well in any case from now on: voting, counting, there will be few disputes, these will be resolved peacefully, there will be a clear result. Would anybody then remember this current debate?
But everything will not go well. Not if the past is any guide at all to the present. And the CEC is not a marginal actor in elections. It must be seen as legitimate and based on the law. If things go wrong I fear that later people will look back and point to the dismissal of the CEC member, the collapse of the CEC, and the weak international reaction as a crucial bad turning point.
On the other hand, imagine that the EU takes a strong joint position NOW. This would send a clear signal: some institutions must not be touched. Some rules must not be broken. What really matters is not who wins but that Albanian voters have the chance to participate in a free and fair contest.
How can the international community avoid being seen to take sides?
This is a crucial challenge. It is one the European Union in particular failed in the past. Everybody knows that different political parties in the EU have political friends in Albania. This is normal and legitimate. And therefore different Europeans parties will usually back the arguments of different players in Albania.
This starts becoming a serious problem, however, once it leads politicians in Albania to expect thatwhatever they do and argue, they will receive some backing from their friends outside. The primary role of the European Union should be to insist that all parties play to win in a fair manner. And to lose in a fair manner: there can be no mass protests after fair elections.
This should not be so hard. Take Croatia in the past decade. The European People’s Party has supported and been close to the HDZ in Croatia. Social Democrats in the EU have rooted for their political family members in Zagreb. But everybody has above all hoped that Croatian elections are free and fair, that there is an alternation in power when voters decide on it, and that Croatia will join the EU soon as a consolidated democracy. And Croatia has had an internal consensus that some issues are beyond party politics.
What would be the regional consequences if Albania has bad elections and remains stuck on its EU path?
In 2009 Albania submitted its application for EU accession. In 2010 the European Commission rejected taking this further, and denied Albania official candidate status. Until today Albania has not been recognized as an official EU candidate, unlike Montenegro, Serbia and Macedonia. Kosovo of course cannot even apply to the EU as long as all EU members have not recognized it as a state. And Macedonia is stuck until the name issue is resolved. This could be in one month, but it could also be in one decade, or never. Thus we risk seeing the Balkans divide again. One group makes progress (Croatia, Montenegro, Serbia) while the others stay behind, at a time of already severe social and economic stress. This is not a good development for anyone, not for the region’s Albanians nor for their neighbours.
What is the role of international election monitors in such a polarised environment?
Did elections in 2009 meet “international and European standards”? It is surprisingly hard to answer this question. Will it be easier in 2013? This is the key question for observers, and this is what decides whether monitors succeed or fail in their job in Albania in June.
International election monitors are aware that their assessments have consequences. If they disapprove of elections they can trigger massive protests (Ukraine 2004). If they approve of elections they reduce the political ammunition for any challenge (Ukraine 2010). There is an understandable incentive to take refuge in ambiguous language. But this can also be dangerous, as we saw in Albania in 2009.
Of course assessing elections is difficult. Albanian institutions are weak, and elections close. Even small irregularities might have a major impact. In 2009 the Office for Democratic Institutions and Human Rights (ODIHR), the most professional institution in the field of election monitoring in the world today, summed its findings up as follows: “…while meeting most OSCE commitments, these elections did not fully realize Albania’s potential to adhere to the highest standards for democratic elections.”
What does this mean? Did any country in the Balkans, or indeed elsewhere in Europe, ever fully adhere to these “highest standards”? Is meeting “most” OSCE standards really good enough for Albanian voters? I think there is a challenge for monitors also to be clearer and less ambiguous. Let us hope we will not hear later this summer that Albanian elections have met most OSCE commitments, but did not fully realize Albania’s potential to adhere to the highest standards for democratic elections. It would certainly be true. It would also be irrelevant.
What can member states like Italy do?
We argue that the EU should pay close attention to these crucial elections. Here member states matter hugely. Clearly Italy is close to Albania, has interests and expertise. But above all Italy is led by a coalition government today. This government can talk to all sides in Tirana.
Imagine if the big Italian parties adapt a joint position now, and push the EU to do this as well: to insist that the Central Election Committee is reconstituted before the official election campaign starts on 23 May 2013 in line with the Election Code, and to warn that unless this happens the EU will not consider these elections conducted in line with European standards. On the other hand, Italy could also warn all parties in Albania that this time there must be no post-election boycotts. Disputes have to resolved within the responsible institutions, not on the street. And that Italy would strongly push for accession talks to start with Albania as soon as possible after free and fair elections.
This would send a strong positive message. What happens in Albania today matters to all of Europe. Italians know this better than most Europeans.
One decade has been lost. What about the next one?
Op-ed by Gerald Knaus (for Koha Ditore)
In Athens, spring 2003
One decade ago, in spring 2003, the New York Times published an appeal by four Balkan leaders, the presidents of Croatia and Macedonia and the prime ministers of Albania and Serbia. Its title: “The EU and South-East Europe need each other.” The occasion was a special Balkan meeting of the World Economic Forum in Athens where all these leaders also came together.
I was there too at the time, and I remember both the appeal and the atmosphere in Athens well. In fact, together with my friend Misha Glenny, I drafted it. There was a sense of urgency in the air, and of anticipation. Zoran Djindic, the prime minister of Serbia who had delivered Slobodan Milosevic to the Hague tribunal, had been assassinated by ultra-nationalist members of the Serbian security forces. Croatia had handed in its application to join the EU, the first Western Balkan state to do so. The host of the meeting, Greece, then the EU’s rotating president, pushed hard to get a European commitment to continued Balkan enlargement.
Shortly before the Athens gathering Boris Trajkovski, the president of Macedonia, invited me to draft an appeal that he planned to ask other leaders to co-sign. He knew that the region would receive a better hearing if it spoke with one voice. He was concerned. His own country had recently been on the verge of civil war. Serbia was on the edge, its ultranationalists growing in confidence. The future of Montenegro and Kosovo was not yet settled. Would the EU, following its 2004 enlargement to Central Europe – then just about to happen – get tired of further expansion? The Balkan leaders’ appeal warned: “Until the whole Southeastern Europe is safely integrated into the European Union, the job will not be complete. And until it is, Europe cannot feel secure about itself.”
One decade later, where do we stand? Today, when EU leaders talk about crises in South-East Europe they think of Athens not Skopje, of Nikosia, not Belgrade. Europe does not feel “secure about itself” but it is not the Western Balkans or the threat of renewed conflict that keeps EU leaders awake, literally, at one crisis summit after another.
Montenegro and Kosovo are independent states; the fear of armed conflict in the region has never appeared more distant. And yet, despite these important breakthroughs, it is hard not to regard the years since 2003 as a lost decade for the Balkans. Boris Trajkovski tragically died in an airplane crash in the Bosnian mountains, on his way to submit Macedonia’s own application for EU membership. His country has been stalled for years now by a Greek veto (a threat which did not appear real in 2003 in Athens). Serbia, ten years after the death of Djindic, has still not even opened EU accession talks. Albania is not an EU candidate yet. The Greek foreign minister in spring 2003, George Papandreou, became prime minister, only to be swept away by the Greek economic melt-down. 2003 was perhaps the last success of Greek diplomacy. At the European Union summit on the Balkans in Thessaloniki in summer EU leaders stated their “unequivocal support to the European perspective of the Western Balkan countries. The future of the Balkans is within the European Union.” Croatia used the past decade, opened accession talks, closed them, and is today on the verge of accession. And yet, it is likely that ten years from now in 2023 Croatia will still be the only Balkan country inside the EU.
Rereading the Trajkovski appeal today highlights a further disappointment. It contained a specific proposal: to make EU regional and cohesion funding available to the region, so as to help it catch up economically, rather than fall further behind. The appeal warned that “the long-term stability of Southeastern Europe depends on the region’s economic health, but this does not mean the usual plea for more money … We are committed to opening our markets to our neighbors and to the EU. We have made huge progress in curbing inflation. And we are now greatly encouraged by the proposal by Greece … that the Thessaloniki summit meeting focus on the possibility of applying cohesion and development policies in our region.”
This was a hope that has not come true. The Western Balkans remains one of the poorest regions of Europe. In Serbia today less than half of the working-age population is actually employed. Unemployment levels in Macedonia and Bosnia are disastrously high. Foreign direct investment in the region, which had transformed the economic structures of Central European countries, has fallen to very low levels. And yet, if a focus on underdevelopment in the Balkans has never been more urgent, the EU’s confidence in its ability to bring about convergence and growth in its own periphery has rarely been lower. The 2003 Trajkovski appeal stated that “The EU has a remarkable record of triggering economic success by helping poorer regions — Ireland, Greece, Spain and Portugal have experienced veritable revolutions in social and economic development in the last 20 years.” It is hard to imagine anybody writing like this today, in the wake of bail-outs, bank failures and rapidly rising unemployment in Spain or Greece.
EU leaders no longer worry about war in the Balkans. They are no longer confident in their ability to bring about economic convergence. They fear the weakness of democratic institutions in Romania or Greece. They worry about inadequate regulation in Cyprus or Spain. Given this state of affairs: what arguments can sway them to open their institutions to accept even poorer states, with even weaker institutions, and even worse images among the public and political elites in Berlin, Paris or The Hague?
Perhaps Greece will prepare for its EU presidency in 2014 by changing its policies on Skopje and Pristina. Perhaps Serbia and Kosovo will soon reach an agreement that allows both countries to move beyond their confrontation. Perhaps Albania will manage to hold free and fair elections this summer. Perhaps Bosnia’s leaders will soon be able to put together a credible application for EU accession. Perhaps Macedonia’s leaders will be capable of renewing the national consensus to focus on EU integration that existed in 2003. Perhaps politicians throughout the region will wake up late at night worrying about youth unemployment and the inadequacy of vocational training, about export opportunities and the best way to use scarce public resources for growth, rather than about building statutes or wasting public money on prestige infrastructure of little proven economic benefit. And then, perhaps, a successor of Boris Trajkovski will invite all his regional counterparts to an informal meeting to seriously discuss what they might do together to correct the image of their region, driven by the recognition that the whole region has dropped out of the focus of the rest of Europe.
If Boris Trajkovski would be around today, and would propose drafting a new appeal for Balkan leaders to sign and publish, what could it say? Appeals are expected to end with proposals, a sense of hope, recommendations. But sometimes it is better to resist this temptation. To acknowledge just how steep the wall is that one has to climb. To recognise that before any new appeals to the EU a whole series of steps have to be taken by the region itself. To recognise that time matters; and that April 2013 is another crucial moment which Balkan leaders miss at their peril. I believe Trajkovski would have realised this. Will his successors?
Perhaps this is not a time for appeals at all, but for a blunt and honest recognition: a decade has been lost. The next might be as well. And it is not by formulating words on paper that this can be prevented.
In the Conservative Party manifesto at the last general election the following commitment was made: “To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.”
A private members bill proposing this was presented and debate in Parliament on 1 March 2013. The debate culminated in a gripping exchange of views between two young Conservative members: Rory Stewart, defending the European Court of Human Rights and the Convention, and Jacob Rees Mogg, proposing for the UK to stop deferring to the Court.
(Rory is a good friend for a very long time, and also co-author of Can Intervention Work; Jacob Rees Mogg I remember well from more than twenty years ago. He was then active in the politics of the Oxford Union Debating Society as a student, while I was a member of the Oxford Union debating team. I disagreed with his views on European institutions then, and do so now, but cannot help but respect his lucidity, honesty and clarity of argument. I just very much hope his views on the ECHR do not prevail in the Conservative Party) .
Excerpts from this debate
Charlie Elphicke (Con)
The February 2011 YouGov poll also found that 55% thought that Britain should leave the ECHR altogether, and that we should have our own Bill of Rights instead, with the British Supreme Court as the final court of appeal. Just 24% thought that we should remain part of the ECHR.
Mr David Nuttall (Con)
Does my hon. Friend agree with that opinion poll finding? If so, why does the Bill not reflect the opinion that we should withdraw from the European convention on human rights?
Britain is in the rather unfortunate situation of embarrassment. We were proud of this Court, and if we wished to tease ourselves a little bit, we could point out the fact that for 40 years we rather enjoyed the fact that the Court told other countries how to behave. We felt—probably intuitively—that the point about the Court was that it would hopefully drag others up to what we rather pompously felt was “our level”.
We became anxious about the Court only once it turned round and started telling us, as opposed to foreigners, what to do—a
difficult and embarrassing situation. We liked the Court when it did a good job of insisting that countries in southern Europe should have habeas corpus and no detention without trial. We became anxious only when the countries that we had cheerfully made accord with British legal norms for 40 years, turned round and tried to demand that we accord with their legal norms on prisoners voting. There is a good reason to feel politically and institutionally, in terms of public opinion, that we do not like that idea and would allow subsidiarity
simply to avoid political embarrassment. However, as I have argued, that is not a moral or legal position; it is purely a question of expediency and convenience, and no moral principle can be based on expediency.
That is, of course, a position that I reject. I cannot accept it because rights are absolute, universal and inviolable. It cannot be the case that one’s possession of rights is relative to the circumstances of a particular culture. It cannot be the case that the mere fact that somebody lives in Saudi Arabia means that they have fewer rights as a woman. It cannot be the case that the mere fact that somebody lives in Taliban
Afghanistan means that they do not have freedom of the press. Those rights, if they are rights at all, rest on one fact and one fact only: the fact of one’s humanity, not the fact of one’s nationality.
In other words, my hon. Friend would say to the European people, “We created the European Court of Human Rights 60 years ago,
and we—Conservative and Labour Governments—spent a long time saying that it was a great force for civilisation and progress. We sent some of our most distinguished barristers and judges to the Court. We celebrated its judgments. We used it to put pressure on eastern Europe and Russia. But now we have decided that it was all a terrible mistake. We will leave, and we will encourage other countries to leave as well. The whole European Court system can collapse, and the consequences for our commitment to human rights, and our attitudes towards eastern and central Europe and Russia, can take their own course.”
I think we do take the view—the rather foolish view—when we set up these Courts that they will never affect us. Let us take the International Criminal Court. Nobody ever thinks that any senior British politician could be hauled in front of it. If that ever happens, we might suddenly decide that we were not so keen on the ICC. I admire the judgment of the Americans who have not joined the ICC because they recognise that if it is justice for one, it is justice for all.
As a strong independent sovereign nation with a history of behaving well going back way before the Magna Carta, I think that we ought to be able to settle our rules for ourselves and should be cautious of setting up courts that are essentially victors’ justice. In setting up the
European Court of Human Rights, what we were really doing was saying, “We have defeated all these nations of Europe. They have had terrible dictatorships before. They are not like good old Blighty, so let us therefore show them how to behave like gentlemen by giving them this Court and this convention.” Then, when they started saying to us, “Well, you, too, must behave like gentlemen”—and of course like ladies in this modern age—we did not like it because we thought it affected and undermined our sovereignty.
We have created an awful lot of things that we do not necessarily still run. After all, we created Belgium, and we do not claim to run that. I think we can fairly argue that our legal system and tradition are fundamentally different from the continental system, and that over generations the common law has built up protections that differ from those in the universal declaration of human rights. Indeed, it was probably a mistake for us ever to sign that declaration.
Rory Stewart (Penrith and The Border) (Con): I begin by praising my hon. Friend the Member for
Dover (Charlie Elphicke) for introducing the Bill. It raises an extremely
important issue which clearly irritates many people in Britain and is very
dangerous. We have got to a situation where human rights are talked about as
though they were some trivial, unnecessary issue. The phrase is connected in
people’s minds with phrases such as “health and safety”. That is a very sad
The question for us today is how we deal with the
problem. My hon. Friend has eloquently explained that we have a problem and has
eloquently given countless examples of things which intuitively make many
members of the British public extremely anxious and extremely unhappy with the
judicial and the political institutions. We should respect that. It might be
tempting to say, as some lawyers do, that the British public are not focused
enough on the moral details and the legal details of the case, and to
trivialise their objections. This would be unfair, because there is obviously
something important, deep and intuitive going on that makes people anxious
about this kind of activity under the banner of human rights.
What is our solution? How do we look at these issues? We have to begin with a sense of
what human rights are. Let me politely challenge slightly the definition of
human rights put forward by my hon. Friend, without calling into question his
overall point, which is that we are now in a mess. It seems to me that we can
begin with a definition of human rights that would state that to say that
somebody has a human right is to say that anyone, anywhere, treated in this
fashion is wronged, and that their possession of that right is not relative to
the costs or benefits of upholding it in any particular case. That sounds very
technical and it sounds pathetic, but it is an important thing to establish at
the beginning of this debate.
Human rights are based on notions of dignity and of inviolability, and they are in
their nature universal. To say that somebody has a human right is a statement
about their moral status. It is not a statement about their nationality. It is
not a statement about their citizenship. It is to say that anyone, anywhere,
treated in this fashion is wronged, and that although there may be a threshold
above which that right could be suspended, below that threshold their
possession of the right is not relative to the cost or benefits of upholding it
in any particular case.
Jacob Rees-Mogg: But surely once there is a threshold, the right is not absolute.
Rory Stewart: My hon. Friend makes a very important point. Let me give an example. The concept of human
rights is based on a notion of human dignity and on a notion
that humans should be treated as ends in themselves, rather than as a means to
an end. In other words, it is a sort of Kantian world view. It has an absolute
view of the world on how people should be treated, but at a very extreme level
there may be a threshold at which we in the Chamber would intuitively feel that
that right could be suspended.
For example, if a child was in possession of information about a ticking bomb that was going to destroy a million people in
a city, we might feel that in that situation it was justifiable to twist the
child’s thumb to find out where that bomb was. In other words, there might be a
threshold, in situations so extreme as to be almost hypothetical, where our
human intuition would be that the right would be suspended, but, below that
threshold, the possession of the right is not a function of the costs or benefits
of upholding it in any particular case.
example, it would not be justifiable in any situation to kill one individual in
order to harvest their organs to save five other individuals.
Rees-Mogg: May I come
back to my hon. Friend on his previous example? He said that a particular act
would be justifiable to save a million people. What about 500,000? What about
50,000? What about 10,000? What about one?
Stewart: That is a
fantastic argument. The argument that I was trying to make was that in the case
of five, 10, 15 or 20 people, our moral intuition is that a particular act is
unacceptable. At another level, at the level of a million, our moral intuition
is that it might be acceptable. This is a very difficult point. The point that
I am trying to make is that we are in a sense deontologists. We are absolute up
to a certain threshold, but there is a certain threshold at which a utilitarian
or consequentialist calculus comes in.
As I said
earlier, if it were a case of one person being killed to save five—in other
words, that somebody could be killed, their organs would be harvested, and
those organs would be used to keep five people alive, that would not be
justifiable. Their possession of their inviolability—their immunity, their
right to life—is not proportional to the costs or benefits of upholding it in
any particular case. There may be—we almost never get anywhere near this kind
of threshold—as a hypothetical, theoretical point, a threshold at which a right
might be overruled by a consequentialist consideration, the one against a
million. But below that threshold, the possession of the right is not relative
to the costs or benefits of upholding it in any particular case.
Jacob Rees-Mogg: I am grateful to my hon. Friend for giving way once again. I think that he rather sold the
pass once he had the child whose thumb could be twisted to save 1 million
people, because if their thumb could be twisted, could their arm be broken? We
are now getting into an argument about what is relative and find that there is
no absolute in this. The same applies to the example of harvesting a person’s
organs: we might not allow it if it would save five people, but what if it
would save 5 million people? Does it then become justifiable?
Rory Stewart: My hon. Friend asks a very important question of moral philosophy. It is a question of moral
intuitions. We are trying to create in our legal and moral systems something
that reflects our common-sense intuitions as humans. We try to interrogate
them, be logical and go back to first principles, but our common-sense
intuition, I feel, is that humans have a moral status, that they are
inviolable, that they have an intrinsic dignity, and that they should be
treated as ends in themselves, not as means to an end.
However—this relates to the case of one against 1 million—we also have a strong moral
intuition that there might be certain extreme circumstances in which it is
justifiable to overrule an individual’s rights. There are different ways we can
deal with that. In the German legal system, for example, it would be argued
that twisting the child’s thumb, although morally justifiable, is not legally
justifiable. The individual responsible would be prosecuted and convicted, but
they would be congratulated on having made the correct moral decision, even if
it was the wrong legal one. In our normal lives, however, such scenarios are
purely hypothetical; we do not come across ticking bombs or children who could
save 1 million people.
In our everyday lives, human rights are, in themselves, inviolable, which is why, as
we consider the case brought by my hon. Friend the Member for Dover, we must
ask ourselves this: what is wrong with the current system? It seems to me that
there are four possible answers to that question, and he has given four
possible answers. One of them, which my hon. Friend the Member for North East
Somerset (Jacob Rees-Mogg) has raised, relates to the question of sovereignty.
The first possible answer on what is wrong with the current settlement on
rights is that there is a problem of parliamentary sovereignty. The notion,
which we could explore in greater depth, is that Parliament is sovereign and
that the European Court of Human Rights, by overruling the decisions of the
British Parliament, is not acting in accordance with the British constitution.
The second argument that could be made is that a question such as whether prisoners
should have the right to vote—a recent and difficult case—is purely relative;
that it is culturally relative. It could simply be argued that the reason the
European Court should not get involved in prisoner voting is not because of
sovereignty, but because the question is culturally relative—I say “tomato”,
you say “tomayto”. These things are purely subjective and based on a particular
cultural or historical context and the Court should not be fussing about them.
The British think one thing, the Spanish think another. There is no way of
resolving it, because it is purely relative.
The third argument is that we are dealing with subjects that are purely trivial, the
argument being that voting rights for prisoners simply do not matter. There
might theoretically be a moral solution to the question of whether prisoners
should be able to vote, but it is a trivial issue and not something the
European Court should be dealing with. Instead, it should be looking at more
The fourth argument, and the one I am tempted to choose, is that this is not
fundamentally a problem of sovereignty, relativity or triviality; it is the
problem of the European Court using the wrong principles to come to the wrong
Permit me to expand on those four arguments in more detail. The first argument is about
parliamentary sovereignty, which my hon. Friend the Member for North East
Somerset dealt with so eloquently. It is of course true that traditionally
within the British system parliamentary sovereignty was supreme. Although Dicey
talks about parliamentary sovereignty and the rule of law, it is quite clear
that what he means by the rule of law is not what Lord Bingham means by the
rule of law. In other words, in the conventional British interpretation, the
rule of law is not something equivalent to the US constitution. It is not an
independent body of law against which parliamentary statutes can be judged. It
was not the case in Britain that an Act of Parliament could be struck down by a
court on the grounds that it did not accord with the rule of law. That notion,
which is of the 15th and 16th centuries, that there was an independent common
law that trumped the actions of Parliament, was put aside. Essentially, for the
past 300 years we have believed that Parliament is sovereign.
Under that interpretation, the European Court cannot possibly be engaged in trying to
subjugate Parliament. At the very best, all it is engaged in is an
international treaty obligation through which the British Parliament has
voluntarily determined that it wishes to accept the rulings of the Court but
can choose to ignore them if it so wishes, and in doing so it would not be
breaking British law but would simply be in breach of its international treaty
So deep is that belief in the British mind that we are now the only advanced democracy
in the world that makes no explicit distinction between constitutional and
normal law. In other words, we have a situation in which, as my hon. Friend the
Member for Dover has so eloquently explained, our constitution shifts
continually over time and, at its worst, “bends like a reed” in the wind. It is
theoretically possible, in a way that it is not in any other advanced democracy
in the world, for a simple majority in Parliament—a majority of the people
gathered here today, for example—to change the fundamental constitution of the
Every other advanced democracy draws a distinction between constitutional and normal
law so that changing the fundamental constitution requires a special procedure.
In northern European countries there is generally a demand for a two-thirds
majority in Parliament, and in southern European countries there is more of a
focus on a referendum. In some countries, such as Italy, there is interest in
an intermediate vote, so the Parliament must be dissolved and the proposed
constitutional change put to the electorate through a general election. That is
all designed to make it very difficult for a Parliament to change the
constitution. The idea—not a British one—is that a Government or Parliament are
temporary, but the people are public, and the constitution exists to protect
the people from the Parliament.
It would be possible to base the entire opposition to the European convention on human
rights on an argument about parliamentary sovereignty, as my hon. Friend the
Member for North East Somerset has, using British constitutional history. But
that argument rests, fundamentally, on political institutions, not morality. It
is difficult to see an ethical or moral case for the notion of untrammelled
parliamentary sovereignty as an alternative to the protection of the
inviolability of the individual’s rights. Indeed, the modern notion of
democracy, which is shared in every other advanced
democracy in the world, combines representation of the majority with protection
of the individual’s rights.
Jacob Rees-Mogg: I do not think that my hon. Friend has fully established the inviolability of the individual’s rights. He has stated it, but he has not established it.
Rory Stewart: My hon. Friend, with enormous eloquence, raises a fundamental philosophical debate. The answer
to his point is that one cannot establish the existence of inviolable rights
unless one accepts two further principles. The first is the equality of humans;
the notion that I, you, Mr Deputy Speaker, my hon. Friend, and indeed someone
we have never encountered who lives at the other end of the Congo, are in all
important respects equal in dignity and in rights. That is an insight of logic
and of human consciousness and a basic commitment to the notion that, although
we might feel that we are special and the only people who exist, as we become
adults we acknowledge that other people, too, are independent moral actors who
possess exactly the same dignity. The inviolability—the rights of the human
being—which my hon. Friend has raised, is derived from that notion of equality
Jacob Rees-Mogg: For the record, I think that the Deputy Speaker is so many leagues above me that I am
not sure my hon. Friend is right. If one takes my hon. Friend’s point about the
equality of humanity—the equality before God that I believe as a matter of
faith—that does not mean that rights are always applied equally. Even in this
Bill, the right to life—that most essential right—is qualified in the case of
self-defence, so rights immediately become relative.
Mr Deputy Speaker (Mr Lindsay Hoyle): Just for the record, I think we are all equal unless there is a long intervention, when I might show a little more power.
Rory Stewart: Rights are indeed qualified, but that does not mean that they are relative. This is an
important distinction. The clause that my hon. Friend mentioned does indeed
establish the right but says that under certain specific circumstances it may
be qualified or overruled. That is not a statement that the right is relative.
It is not a statement that the right to life contained in the European
convention on human rights is purely relative. It is not a statement that,
below the threshold of the qualification, in other words, the specific
circumstances in which a right may be suspended—this is what makes rights quite
different from any other form of moral law—one’s possession of a right is not
relative to the costs or benefits of upholding it in a particular case.
One’s right to life may be suspended at a certain threshold. The thresholds described
in the European convention include those relating to civil disorder and
military law. However, below those thresholds one’s right to life cannot simply
be looked at in terms of the costs or benefits of upholding it in any
Jacob Rees-Mogg: But this right is so clearly absolute. The old Riot Act provided for the militia to start
shooting because of the decision made at that time that the
maintenance of order required immediate use of fatal force. That is no longer
thought to be appropriate. It is therefore about a relative judgment relating
to the balances between the individual and the collective.
Rory Stewart: We need to be very clear about what we mean by “relative”. The notion of “relative” that my hon. Friend is rehearsing simply
says that rights and moral values evolve in a historical context. As he says,
it is simply a matter of historical fact that different cultures at different
times have taken different moral positions. Aristotle, alongside his other
great observations, believed that women and slaves lacked souls. Today we
realise not merely that he thinks one thing and we think another—that it is
relative—but that he is wrong. He is wrong because moral language is implicitly
not relative; it is, in its very structure, absolute. Moral language does not
say, “I don’t happen to like you killing someone, but if you want to kill
someone that is up to you.” In other words, it does not say that killing
someone or not doing so is like you liking chocolate ice cream and me liking
strawberry ice cream; it says that it is wrong and ought not to be done. Moral
language is about questions of “ought”, not questions of “is”.
Jacob Rees-Mogg: But in saying that something ought not to be done one immediately goes on to add “except in certain circumstances.”
Rory Stewart: I will try again. The central point is that the notion of moral obligation—the notion of what
ought or ought not to be done—relies on two conflicting principles that connect
at the moment of the threshold. Those two conflicting principles are, on the
one hand, the notion of the inviolability and dignity of the human being, and,
on the other, a consequentialist or utilitarian argument of the greatest
happiness of the greatest number. Philosophically, the origins of these two
types of argument are entirely distinct. One is a deontological argument that
simply states the dignity of the human being and their inviolability; the other
is an instrumental argument based on consequences or results. Our legal system,
and indeed our moral intuitions, combine these two, which meet at a point of
the threshold. This is what we mean by “ought”. We mean exactly what my hon.
Friend the Member for North East Somerset suggests: that the individual ought
not to be treated like this except in very extreme circumstances above a
certain threshold below which the individual’s possession of the rights is not
a function of the costs or benefits of upholding it in any particular case.
This is important because it is a distinction between a relative position that says “I
can take your life whenever I feel like it on the basis of no moral argument
and no logical position” and a separate position that says “I may not take your
life. There are certain extreme situations in which it could become legally
permissible to do so, but I may not.” The distinction between human rights and
a relative position is a distinction on permissibility—a distinction on what
may be done.
Jacob Rees-Mogg rose—
Rory Stewart: Before my hon. Friend intervenes again, let me be absolutely clear that the distinction is this: when I say that somebody has a right not to be tortured, I am saying that they may not be tortured. I am not saying that they will not be
tortured; there might be a horrible situation in which their Government do
torture them. The statement is a moral statement, not a prediction about the
future. It is a statement about what we morally give permission to do: “You may
not be tortured; you may not be killed.” It is then possible to state certain
threshold circumstances in which our moral intuitions in terms of human rights
shift to moral intuitions in terms of a consequentialist world view in which we
say, “One person might be killed for the benefit of a million.” These are nice
questions of moral philosophy that do not usually come up in our everyday life,
which is based on the dignity and inviolability of the human being regardless
Charlie Elphicke: My hon. Friend is making a very powerful argument in which he highlights a key difference
between civil law and common law. In common law, we would take a utilitarian
approach. If a plane were heading to London with 100 people on board and a
nuclear bomb, we would say “Save the city”, but in Germany, under the civil law
code, people would say, “You can’t touch the plane because of the inviolability
of the right to life.” That is at the heart of some of the problems that I have
been wrestling with in the Bill.
Rory Stewart: The example of the plane is a very good one. It is an exact example of where our moral
intuitions collide. My instinct would be that neither ourselves nor a German
legislature would be comfortable with the decision either way. These are
terrible, terrible decisions involving two very deep moral intuitions. The
first of those is that individuals should be treated as ends in themselves and
not means to an end. As my hon. Friend so rightly points out, the German
supreme court holds that a plane could not be brought down in those
circumstances because it feels deeply that that would be to treat the people on
it as a means to an end rather than an end in themselves. In effect, it would
be doing to them something similar to killing one person in order to harvest
their organs to benefit five others. The calculus is that five having benefited
is not enough to outweigh the harm done to one. That is an important moral
However, my hon. Friend is correct to suggest that in the end most of us would disagree
with that notion. I personally would disagree, as would, presumably, my hon.
Friend the Member for Dover. In a situation of that sort, where 1 million
people are going to be killed by an atom bomb, another deeper, stronger moral
intuition arises which we often describe in terms of common sense but is in
fact a utilitarian calculus—that there is a certain threshold of absurdity beyond
which the protection of the rights of the individuals in that plane no longer
makes sense. My hon. Friend the Member for North East Somerset has been very
good at pointing out the contradiction that these are two separate
philosophical principles, and at raising the question of where the threshold
comes in. The terrible judgment that a politician would need to make in that
situation is not one that can be resolved except through a deep understanding
of the particular facts of an individual case.
Jacob Rees-Mogg: I am grateful to my hon. Friend for giving way; I
will try to make this my last intervention. Once we accept the threshold, it
becomes fundamentally arbitrary and merely a matter of arguing where it should
be set. Therefore, the question is of the legitimacy of who sets that
threshold—whether it should be the Queen in Parliament or a foreign court.
Rory Stewart: There is a disagreement here and it is not one that we can paper over. The question is:
where should we put the weight of sovereignty? How important is sovereignty?
Does sovereignty confer some form of immunity? Is there some magic in this
Chamber that allows the legislators in it to do whatever they want? Is it the
case, as Lord Hoffmann suggested in his judgment, that if this Chamber wished,
it could simply flout human rights? Is that a statement about political fact in
institutions, or is it about morality? Do we think that it is simply a fact
that this Parliament could do whatever it wants, or do we think that this
Parliament ought to be able to do whatever it wants? On this is based our whole
conception of democracy.
Those who feel that this Chamber not only could, but ought to be able to do whatever it
wants are basing their argument on one principle only, which is the principle
of majority representation. Where I suspect there may be a disagreement between
myself and my hon. Friend the Member for North East Somerset is on the notion
that democracy is based not on one, but on two principles—majority
representation and the protection of minority rights—and that, in the absence
of the second criterion, we cease to be, in the full sense, a democracy.
This is a very difficult argument to make, because in this country we have every reason to be proud of the performance of this
Parliament. Although theoretically, constitutional anxiety leads us to believe
that this Parliament could do truly barbarous things, as a matter of fact it
has not. In fact, consistently this Parliament has shown itself very respectful
of the unwritten laws of the British constitution. When Parliament has
attempted to fundamentally change the constitution of the United Kingdom
through a simple majority in the House of Commons—as, indeed, it did with the
proposal to abolish the House of Lords—it refused to take that opportunity. It
backed away from it. Parliament’s reluctance, innate conservatism and caution
with regard to issues relating to the constitution have meant that, from 1911
to the current day, people pushing for a written constitution or more formal
constraints on the power of Parliament have not won.
That is good and it shows two positive things. First, it shows the important principle
of common sense. Everyone in this Chamber agrees that we do not want to live in
a world of technocrats. We like the fact that the British public have a say and
that their common sense permeates this Parliament. At our best—we are not
always at our best—we are a lens that connects the Executive to the voting
public. We act as a mediator between public opinion—the sentiment, imagination
and culture of the British people—and the laws passed in Parliament. Nobody in
this Chamber wishes to pass to a world where we vest our power in technocrats
or experts, such as a Mario Monti-type figure with great insight, who think
they know what is best for the people. Our unruly common
sense means that the public have tended to respect their landscape, to
challenge the Government on, for example, wind turbines, and to refuse to
co-operate—in a similar way to that in which the French public occasionally
refuse to co-operate on farming—with the theoretical ideas of experts and
The second reason to be proud of the sovereignty of Parliament is that it reflects a culture, but the question for my hon.
Friend, who is one of the great supporters of untrammelled parliamentary
sovereignty is this: do we have the confidence that the unwritten rules, the
culture of this House and the deep understanding of the history of the British
constitution—which meant in 1911 that Members of Parliament were very cautious
about changing it—still hold, or did our vote on the House of Lords Reform Bill
take us close to the brink? Is it possible that we are suffering from
collective amnesia and that one can no longer say that the British Parliament
is so deeply entrenched in its constitutional history that it can be guaranteed
never to change fundamentally the British constitution?
If we are moving into a world that takes us into that danger zone, I believe that we need
to follow the example of every other advanced democracy in the world and
separate constitutional and normal law, and say that, in order to make a
fundamental change to the constitution, which would affect the rights of
citizens—this is why this is relevant to the European Court of Human Rights—we
must ensure that special procedures are followed. The special procedure that we
have tended to develop through precedent over the past 40 years is, of course,
a referendum. We may not want a referendum to be the fundamental means by which
we change the constitution. We may want to adopt a different procedure, such as
a two-thirds majority or a free vote in the House—which, of course, is what the
previous Government used to deal with the issue of the House of Lords—but we
are moving to a world in which we need a proper procedure.
The reason why that is relevant to this debatee is that the question of parliamentary sovereignty and its relationship with the
European Court is the nub of the issue. The argument against the European Court
cannot simply be that Parliament is sovereign, absolute and always right and
that it should never be challenged. We have developed a doctrine of
international intervention with regard to the notion that sovereignty does not
confer immunity—that the rights of a country’s individual citizens can trump
the sovereignty of a Parliament.
The second argument—moving on from sovereignty, with apologies for having paid so much attention to it—is about the question of moral relativism, although my exchange with my hon. Friend may have covered this issue adequately. The idea
of moral relativism states that the question of prisoners voting is purely
relative. I like chocolate ice cream, Mr Deputy Speaker, but perhaps you like
strawberry ice cream—that is a question of taste, not of moral decision. The
Spanish believe that prisoners should have votes and the British do not, but to
argue that such things are purely relative and that there is no way of
resolving them is very dangerous, because all these questions about rights are
fundamentally issues of morality. Moral language is a statement about what is
right and what is wrong—what we ought to do and what we ought not to do. It is
not a statement of personal taste akin to saying, “I like red, you like blue, and that’s the end of the discussion.” What one says is,
“You are wrong.” We must believe it is possible to resolve the question of who
is right and who is wrong on the issue of prisoners voting and to do so through
moral investigation and debate.
Charlie Elphicke: I thank my hon. Friend for giving way; he is being very generous in taking interventions. I would say that the issue is
slightly different. The Spanish think that prisoners should have the vote and
the British do not, but the error is the one-size-fits-all approach taken by
the European Court. There should be an acceptance that different countries will
arrive at different solutions. A universal morality should not be thrust on
Rory Stewart: The powerful argument made by my hon. Friend is, indeed, the same as that made by Lord
Hoffmann, who says that universal rights, such as those under the European
Court of Human Rights, are simply aspirational and that any universal code is
aspriational, but it is always national in its application. The argument made
by Lord Hoffmann and my hon. Friend is that the European Court of Human Rights
and the convention are purely aspirational: they are a good way of encouraging
people to behave better, they are a good way of doing political lobbying and
they are a good way of applying pressure, but in their application, human
rights can only be national. The notion is that human rights are relative to a
particular historical or political context. In the view of Lord Hoffmann and my
hon. Friend, but not in my view, the question of whether prisoners should vote
should not be determined by moral debate because it is specific to a particular
historical or national context. For them, the real answer to whether prisoners
should vote depends on the difference between Spanish culture and British
That is, of course, a position that I reject. I cannot accept it because rights are
absolute, universal and inviolable. It cannot be the case that one’s possession
of rights is relative to the circumstances of a particular culture. It cannot
be the case that the mere fact that somebody lives in Saudi Arabia means that
they have fewer rights as a woman. It cannot be the case that the mere fact
that somebody lives in Taliban Afghanistan means that they do not have freedom
of the press. Those rights, if they are rights at all, rest on one fact and one
fact only: the fact of one’s humanity, not the fact of one’s nationality.
Charlie Elphicke: Lord Hoffmann said that human rights are universal in their abstraction, but national in
their application. I think that what he was saying was that one-size-fits-all
does not work and we need room for what used to be called subsidiarity, but
which in this debate has been called proportionality or the margin of
appreciation. The margin of appreciation is central to getting the right
settlement that all countries can live with.
Rory Stewart: My hon. Friend brings us neatly to the third question on the Bill: the question of
subsidiarity and triviality. on from the big questions of sovereignty and meta-ethics, the central argument
that my hon. Friend has made, which is an important one, is fundamentally
about triviality. Lord Hoffmann may be suggesting that although at a
theoretical level it may be possible to resolve whether prisoners should vote,
as a practical point, the issue does not really matter. It is subsidiary—that
is, it should be left to individual countries—because it is just too disruptive
to the international system to try to impose, as my hon. Friend puts it, a
one-size-fits-all approach. The argument is that trying to resolve the issue of
whether prisoners should have the vote is disruptive to the international
That is a strong intuitive argument and one that we might have a lot of sympathy with in this House as politicians. It is
obviously not a moral argument, because Lord Hoffmann’s argument does not hold
water as a moral argument. It cannot be the case, as a question of ethics, that
nationality is the prime determiner of one’s rights. However, that may be true
as an issue of practicality. We might want to allow some flexibility in the
process for the sanity of the international system. Although that is really
tempting, the reason why we should not go down that path is twofold.
For a legal system, the question of triviality cannot be relevant. It is not possible
for a judge to determine a case simply on the basis of whether they think that
the question of prisoner voting is important in the grand scheme of things. The
judge is there to make a decision on the basis of the law. That is why we often
get frustrated and often find the system very peculiar.
The classic example, which is something that I hate about the European Court of
Human Rights, is the case that was brought by the man who did not want to give
his name when he was caught speeding. That case went all the way up through the
courts system. The man argued that he should not have been obliged to give his
name when spotted by a speeding camera because he had a right of privacy and a
right to silence. He objected to the fact that he was going to be fined for
giving his name.
Throughout the process, the courts did not say, “This is a trivial issue. It is a minor
speeding fine, so we’re not interested.” The case went all the way up to Lord
Bingham who, at great length and with enormous politeness, explained to the
gentleman that his right to silence did not extend to not giving his name in
relation to a speeding fine. At that point, the gentleman applied to the
European Court which, perhaps to the delight of speeding motorists, seemed for
a moment in a majority judgment to say that the man should not have to give his
name because of the right of privacy.
That case shows that the triviality argument does not operate and, much more importantly,
that judges are not politicians. It is not for a judge to determine whether it
would be politically disruptive or inconvenient for a particular judgment to be
passed. They may intuitively, in the back of their mind, be influenced by what
they have read in the newspaper and they may be anxious that if they pass a judgment
that is objectionable to the public, it will undermine the legitimacy or
reputation of the judiciary, but those cannot be formal considerations in their
decision. It cannot be that the European Court, which by its very nature has
sanctions, can consider whether making a certain decision is disruptive to the
international system or undermines the legitimacy or reputation
of the Court itself. Those cannot be the terms on which moral or legal
decisions are made, although we may often feel that they are the terms on which
political decisions should be made.
A good example of that is the question of gay marriage, which has been a controversial
issue in this Chamber. It makes perfect sense for a political Chamber to say,
“This is a philosophical question and we feel, for political reasons, that this
is not the appropriate moment to raise it because it would cause too much
disruption and unhappiness.” However, at the point at which the issue is raised
and put to the vote, it no longer makes sense to talk purely in terms of public
opinion and disruption, particularly in a case that relates to morals or
ethics, and it becomes necessary to look at the merits of the case and examine
The argument for why the European Court should not get involved in prisoner voting
therefore cannot be that the issue is trivial or disruptive. The reason why
there must be subsidiarity and why there cannot be a one-size-fits-all approach
cannot, from a moral or legal point of view, be that it causes inconvenience.
Before I move on to the fourth and final part of the argument, I will go over the three
arguments about the European Court that we have considered and that do not hold
water. The first is the argument that the European Court should not exist
because Parliament is absolutely sovereign. As a moral principle, as opposed to
a statement of constitutional fact, that is objectionable. The current
evolution of British culture and the behaviour of the British Parliament over
the past 20 years suggest that it would be dangerous to put the entire reliance
for our constitutional system and the protection of rights on the individual
decisions of a temporary majority in a sovereign Parliament.
The second argument that we have rejected is that questions such as prisoners’
voting rights are purely relative, that there are no moral absolutes and that
such questions cannot be resolved in a philosophical sense. The contention is
that moral arguments are simply a question of, “You think this and I think
that,” and there is no way of resolving them, as if they are just a question of
taste, as in the trivial example that I gave of one person liking chocolate ice
cream and another liking strawberry ice cream. No; we believe very strongly
that moral arguments are different from arguments of taste. There is an answer
to these questions.
There is therefore an answer to the question of whether prisoners should have voting
rights. It is based on whether we believe that the dignity and inviolability of
the prisoner’s status as a moral actor—as a human—requires them, always and in
all circumstances, to have a vote or not. Personally, I do not find that
argument convincing. A prisoner is not entitled, as a fundamental element of
their human dignity and inviolability, to a vote in all circumstances. That is
not, however, simply a question of taste. It is a question of moral argument.
The third argument we are rejecting is that it is simply inconvenient to talk about such
matters and that it disrupts the international system. That is a tempting
argument, because we set up the Court; David Maxwell Fyfe essentially drafted
this document and steered it through. Britain is in the rather unfortunate
situation of embarrassment. We were proud of this Court, and if we wished to
tease ourselves a little bit, we could point out the
fact that for 40 years we rather enjoyed the fact that the Court told other
countries how to behave. We felt—probably intuitively—that the point about the
Court was that it would hopefully drag others up to what we rather pompously
felt was “our level”.
We became anxious about the Court only once it turned round and started telling us, as opposed to foreigners, what to do—a
difficult and embarrassing situation. We liked the Court when it did a good job
of insisting that countries in southern Europe should have habeas corpus and no
detention without trial. We became anxious only when the countries that we had
cheerfully made accord with British legal norms for 40 years, turned round and
tried to demand that we accord with their legal norms on prisoners voting.
There is a good reason to feel politically and institutionally, in terms of
public opinion, that we do not like that idea and would allow subsidiarity
simply to avoid political embarrassment. However, as I have argued, that is not
a moral or legal position; it is purely a question of expediency and
convenience, and no moral principle can be based on expediency.
The fourth and concluding argument concerns what we should do about the European
Court. We should not give up the notion that there are inviolable and universal
human rights, or that the sovereignty of Parliament must respect the rights of
the individual. We should not give up the notion of moral absolutes or accept
the notion that political expediency can override moral or legal principles. We
must return to the fundamentals and challenge the moral and legal argumentation
of the European Court, and we would do that in exactly the way that my hon.
Friend the Member for Dover has so eloquently explained.
From my point of view, my hon. Friend is not producing a measure that would lead us to
leave the European convention, but he points out that the Court’s current
operations are resulting in absurd, surreal consequences. The way to address
that problem is to look again at the European convention on human rights, and
consider how it was drafted in 1950, what ingredients lie within it and how
much latitude that gives the Court. A Court that one year ago had 100,000 cases
waiting to be heard—an absurd number—needs to say no to far more cases. The
Court must understand that the 1950 drafting of the convention allows it very
little latitude, and that it is currently engaged with many issues that are
outside the purview of the original convention on human rights.
A classic example of that is prisoners voting. The point is not that the question of
prisoners voting cannot be resolved legally or philosophically but that it
cannot be resolved on the basis of the European convention on human rights.
Nothing in the convention provides sufficient detail or cogency to allow a
judge, purely on the basis of the nostrum of a democratic society, to derive
from that vague and abstract principle the conclusion that prisoners should
have a vote. Such a thing could be done, but not by the European Court. It
could be done by the British Parliament or by a British court, because it
requires a much deeper background of legislation. In our case it would require
the corpus of the common law; in Spain it would require the corpus of its
continental legal system. To reach such a conclusion requires far more than the
brief statements in the European convention on human rights.
That does not mean that the European convention on human rights is useless—far from it.
The convention with its fundamental principles is an incredibly useful, dynamic
document that is unambiguous and clear—as it should be—on questions of torture.
It makes every sense for the European convention on human rights and the
European Court to rule on the protection of fundamental political rights of the
sort contained in that document. It is not that torture, genocide, arbitrary
arrest and arbitrary imprisonment are the only issues that matter. Many other
issues of human rights also matter, but those are the only issues covered in
the convention and on which the Court should be ruling. That is why the
Brighton declaration brought together by this Government as the President of
the European Council—the statements by the Secretary of State and the Lord
We require fundamental reform of the European Court. We must radically reduce the
number of cases it deals with and clarify its legal and philosophical basis to
determine on which cases it should and should not rule. The notion of
subsidiarity, which was raised so eloquently by my hon. Friend the Member for
Dover, is not a moral, legal, or philosophical principle but concerns the
ingredients of the European convention on human rights. Those things are
subsidiary because they are not covered in that document. We should not lose
confidence in the notion of rights and in a convention that we were proud to
create and which was created by a Conservative Member of Parliament and Lord
David Mowat (Warrington South) (Con): My hon. Friend is giving an eloquent defence but the logic of his position
seems to be that we should not have a European convention on human rights or a
Court, but rather a world convention. Is that his position?
Rory Stewart: That is a telling intervention. The answer is that we have signed and ought to respect
and uphold the United Nations universal declaration of human rights. It exists; we are signatories to it.
Bob Stewart: We have signed up to it.
Rory Stewart: Yes. As my hon. Friend points out, we are signatories to that declaration of human rights. We
were the first signatories to it in 1948 and it is the precursor to the
European convention. We have signed it and we should respect it. Should we
establish a court to uphold the information in the UN universal declaration of
human rights? I think we should be very cautious of doing that. The UN
declaration includes many elements that would be difficult for a court to rule
on and that would be difficult to apply to the 200 members of the United
Nations. For example, the declaration includes a right to paid holiday. That is
difficult to imagine in Chad, Mali or the Congo. It is difficult to imagine
what would be involved if somebody in a developing country who lives on a
dollar a day asserted their right to a paid holiday, and it is therefore difficult
to imagine an international court that would rule on that kind of information.
Nevertheless, in certain circumstances we should respect the UN declaration and international
courts. A classic example is the International Criminal Court or the International
Criminal Tribunal for the former Yugoslavia.
Britain is a signatory to all cases with the ICTY and the ICC and upholds the rulings
of those courts that deal with crimes against humanity. To return to the
beginning of the argument, we sign up to such bodies because we accept that
crimes against humanity can be committed anywhere by anyone in any
circumstance, and the sovereignty of an individual Parliament or country does
not trump an individual’s rights to be exempt. Not even the sovereignty of this
Parliament. Not even this Parliament ought to be allowed to commit crimes
against humanity—to put the most extreme situation. We sign these things at
international level, and we constrain the power of our Parliament, as we
should, in those specific cases.
In other cases, the moral, legal and philosophical arguments are better conducted in the
Bob Stewart: Is it not the case that the International Criminal Court and the International Criminal
Tribunal for the Former Yugoslavia try crimes against humanity and crimes of
genocide only if there is no way that a national jurisdiction will deal with
the problem? Only then does it go to the ICC or the ICTY.
Rory Stewart: That is a fundamental principle, and my hon. Friend is correct to raise it. In the
international system, we have an important conception of state sovereignty. The
only argument being made today is that state sovereignty is not absolute; it
does not trump everything else, but to return to the language that my hon.
Friend the Member for North East Somerset does not like, up to a certain
threshold, state sovereignty obtains. Up to a certain point, there must be the
opportunity to attempt to resolve the situation domestically, but at that
point, when the state concerned has failed to deal with crimes against
humanity, it is not only legal under the international system but morally
correct for an international court to overrule the national Government.
David Mowat: May I press my hon. Friend further on his position on a world court of human rights? The logic
of his position seems to be that the scope of the European court should be
extended as far as possible, given that these things are absolute and not
relative, as he says.
Rory Stewart: That is a very interesting and important question. The answer of course is that when David
Maxwell Fyfe, of whom Conservatives should be proud, and Hartley Shawcross, of
whom the Opposition are equally proud, brought the convention together, the
objective was to spread it as widely as possible. Indeed, for more than 60
years the British Government have had as their policy an attempt to push it as
far as possible, which is why the European convention now extends a long way
beyond the boundaries of the European Union and takes in countries such as Russia.
That is because we believe that the ingredients of the European convention on
human rights are basic, inviolable and universal dignities. If anybody wishes
to sign up to the European convention, we absolutely encourage them to do so.
Any country that wishes to join, to sign up to the declarations and to be held
to the high and exacting standards contained in that document, should be
welcomed, but if the Court is to survive at all it
needs to narrow its focus drastically; that is where my hon. Friend the Member
for Dover is absolutely correct.
If the Court is to have any credibility or legitimacy in the long run, it cannot continue contributing to a situation
where the British public end up feeling that human rights are trivial, that
human rights are an excuse, that human rights are a charter for triviality,
that human rights have the same relationship to real rights as “Health and
Safety” does to real health and safety—in other words, that it is a factory for
lawyers and insurance claims. To return to its fundamental principles, the
Court needs to remember what it is there to do, and it is on that point that I
really will conclude.
The European convention on human rights is not something that we as a party should
set aside by suggesting that human rights do not exist. Human rights do exist,
and all of us are proud to live in a society where our rights have been
protected in different forms since Magna Carta. We did not use the words human
rights until the French began to popularise them in the late 18th century;
until then it was a specialist phrase that nobody in this country would have
used. Indeed, it was not until after the second world war that anyone in this
country started using the words human rights, but we have had the basic notion
of the rights of man for 800 years. It is that the human is dignified and
inviolable; certain things may not be done to that individual; anyone anywhere
who is treated in that fashion is wronged; their possession of that right is
not relative to the costs or benefits of upholding it in any particular case.
The European convention, drafted by us, enshrines those notions of basic decency—of
equality of humanity and of inviolability. The problem with it is not the
sovereignty of Parliament. The problem is not that rights do not exist. The
problem is not that it is politically too complicated. The problem is that we
have allowed the Court to stray from its fundamental job. It was given a very
narrow task and a very narrow focus, which, broadly speaking, was to deal with
crimes against humanity. We should therefore join my hon. Friend the Member for
Dover in strongly demanding that the case load of the European Court is
radically reduced, that the principles of subsidiarity are radically increased
and that the Court ceases to get involved in situations that in principle,
ethics or law, it is not competent to handle.
The man emerging from the metro in Saint Germain-en-Laye on this cold Sunday afternoon in February is ebullient, unbowed and confident about the future of his country. This is remarkable, for my visitor is the political activist and writer Emin Milli, who had just emerged (again) from prison; the country in question is Azerbaijan.
Our paths first crossed when ESI worked on and then published in March 2011 a report about him, his friend Adnan and other members of Generation Facebook in Baku. The report described the emergence of a new generation of dissidents in Azerbaijan, and the strategy of repression used by the regime.
Emin Milli, a blogger, writer, activist and former political prisoner protesting
against violence against conscripts in the Azerbaijani military in Baku, 12 January 2013
Since Generation Facebook we have been in touch regularly. In January this year we met in Budapest during a seminar discussing the future of election observation missions in Europe. We then spent a day in Rumeli Hisari in Istanbul, discussing how the Council of Europe might help set free political prisoners across Europe. For Emin this is also a personal issue. He had spent 16 months in jail in 2009 and 2010. Our discussion was in the shadow of a forthcoming vote we were both watching carefully.
Emin Milli in Rumeli Hisari, Istanbul, January 2013. A few days later he will again be arrested after peacefully demonstrating against police violence.
I ask Emin how he felt when he heard about the outcome of this debate on his country. He notes:
“When I heard about the vote against the resolution what came to my mind, strangely, was the fall of the Roman Empire. I thought: it is amazing how one small authoritarian regime can bring the proud tradition of democracy in Europe down in the Council of Europe.”
Three days after this vote Emin was arrested again following peaceful demonstrations. He spent two weeks in jail, together with others who had taken part in the demonstration. Emin tells my young daughters that prison offers a lot of time to read and that it helps to lose weight. Emin also explains that this time in prison he reread Les Miserables, one of the great novels of the 19th century. I tell him that Victor Hugo once lived near Saint Germain-en-Laye in the West of Paris, where we are now. Hugo was a visionary himself. He did, after all, tell the 1849 (!) Peace Congress in Paris:
“A day will come when the only fields of battle will be markets opening up to trade and minds opening up to ideas. A day will come when the bullets and the bombs will be replaced by votes, by the universal suffrage of the peoples, by the venerable arbitration of a great sovereign senate which will be to Europe what this parliament is to England, what this diet is to Germany, what this legislative assembly is to France. A day will come when we will display cannons in museums just as we display instruments of torture today, and are amazed that such things could ever have been possible.”
Compared to this vision, is the idea of the Southern Caucasus one day joined together with the rest of democratic Europe any less realistic? Is it less realistic than imagining in 1983 Poland joining the European project or in 1993 Croatia being a part of it? Hugo spoke those words before the Paris Commune, the two World Wars and the Cold War. He spoke them as an optimist – but given the European Union of today a farsighted rather than foolish one. I am certain that Hugo would have liked the vision and determination of Emin’s generation in Baku. As Hugo put it at the end of Les Miserables:
“… a progress from evil to good, from injustice to justice, from falsehood to truth, from night to day, from appetite to conscience, from corruption to life; from bestiality to duty, from hell to heaven, from nothingness to God. The starting point: matter, destination: the soul. The hydra at the beginning, the angel at the end.”
The hope for peaceful change
What is the hydra in Azerbaijan today? It is the authoritarian and oligarchic regime of president Ilham Aliyev. Is there an Angel? It must be the hope of a peaceful transition to democracy.
We sit down and Emin begins to explain:
“Before I did not see a chance for a democratic, non-violent and managed transition, as opposed to violent, anarchic and chaotic change. Now I can see a chance for this, even this year.”
Emin arrested again, following peaceful protests against police violence on 26 January 2013
The key for any breakthrough is for new and traditional opposition groups to come together around a common platform, program of change and a common candidate in upcoming presidential elections.
“There are of course the old opposition parties like Musavat and the Popular Front, but they are no longer alone. There are also now intellectuals who defected from the regime and who are popular in Azerbaijan, members of the new Intelligentsia Forum: scientists like Rufiq Aliyev, who is a candidate for a Nobel Prize, or film makers like Rustam Ibrahimbegov, who won an Oscar. They have now broken with Aliyev. There are many Western educated young people who have returned, like Harvard-educated former political prisoner Bakhtiyar Hajiyev. There are other opposition parties with serious programs, such as the Republican Alternative of Ilgar Mammedov or Erkin Gadirli. There are the young activists of the facebook generation.
In the past it was easier for the regime to discredit the opposition, but this would be hard in the face of a common opposition front. This is a very different scene from the one we had before elections in 2010, 2008 or 2005.”
But will there be a joint platform for elections in 2013?
“Different political groups and social forces seem to realize now that coming up with a united political platform for change may be the key game changer in Azerbaijan this year. This would mean having one joint presidential candidate and a joint political platform with a clear agenda for a transition government, which would lead Azerbaijan from a presidential monarchy to a parliamentary republic.“
Emin’s cautious optimism is also based on the new media revolution in Azerbaijan. He sees many concrete signs of the impact of this ongoing revolution:
“Opposition newspaper Azadliq sold 200,000 hard copies during the national independence movement in the late 80s. It went down to selling just 10,000 copies. This year in January 2013 some news put on the website of Azadliq were read by more than 200,000 people. So there is a bigger public sphere, which has expanded enormously.”
“The reason I am optimistic is the monopoly of information once held by the government in Baku is corroding, even beginning to crack. First, you see this on YouTube, as countless of videos capturing violence and abuse of power circulate. The Internet has lowered the barriers to entry
“Furthermore, the rise in satellite TV broadcast from Turkey are spreading these videos. These YouTube clips expose the regime as a criminal gang. They show threats, blackmail, the open selling of parliamentary seats … and how even members of the elite treat each other.”
“Hundreds of thousands now watch Youtube videos. These include the shocking videos put online by the former rector of Baku university Elshad Abdullayev in conversation with various important members of the regime. Elshad Abdullayev taped many of his conversations over many years; having fled Azerbaijan he is now putting them online. These tapes have exposed just how corrupt and criminal the regime is. People knew this, but these videos made the truth obvious, and create a lot of silently rising anger and outrage: they see members of parliament selling seats for more than a million Euro. Hundreds of thousands also watch them broadcast from Turkey on satellite TV.”
“These clips expose the regime as a criminal gang. They show threats, blackmail, the open selling of parliamentary seats … and how members of the elite treat each other.”
“There is also a growing sense of disenchantment with the regime all over the country. Various social groups shop-keepers, relatives of people serving in the military, local people in different provinces of the country – have started to protest in numbers and ways not seen before within one month. In January 2013 I saw groups I had never imagined would go on the streets to protest. Shopkeepers closed a road and protested against the owner of one of the biggest shopping malls in Azerbaijan who wanted them to pay more rent. Then there were the protests on 12 January against violence against conscripts in the military.”
“a repeat of protests in another region, Guba, last year. There local people were so frustrated with their living conditions that they did not see any other means to communicate their frustration than violence. In Guba in 2012 they burned down the house of the governor, who was then fired by the president. In Ismayili the hotel and part of the governor’s house were again burned down.”
There is a possibility of such protests spreading:
“People protested and burned the house of governor in Guba, then he was fired. People in Ismayilli burned hotel and house of the governor, then he was fired too. What sort of message does this send to people in other regions? The only way the government respects the people is when houses burn? This is no way to govern the country. Firing a couple of governors will not solve the problem of feudal style governance in the regions either. People want to be heard.”
“These protests are out of control of the opposition, which is not even allowed to go to the regions.”
The Aliyev regime is clearly nervous about all this:
“For the first time in a very long period the regime moved troops into regions of Azerbaijan. The pictures of the stand-off reminded people of the days when in 1990 Soviet troops entered Baku. Now again hundreds of people were detained, arrested, tortured. And in spite of this very violent reaction of the state it did not stop any of the following protest actions.”
The president has also appeared unnerved:
“The first reaction was that the governor will stay, that these were just some local hooligans. Then a couple of weeks later Ilham Aliyev goes on television and threatens governors and ministers that their sons will be put in jail if they misbehave, that if they curse or insult people they will be jailed and their fathers will be fired.”
At the same time the regime is clamping down hard in light of the upcoming presidential elections in October 2013:
“For the first time in recent Azerbaijani history a presidential candidate was put in jail during an election year! This is a different level of nervousness than before. Ilgar Mammedov from the Republican Alternative opposition party is a presidential candidate. He went to Ismayilli and was jailed, accused of inciting events. This is absurd: he went there after everything was over. Isa Gambar, another presidential candidate, was prevented by a mob and police from entering Lankaran in the South of the country. Ali Kerimli, another potential presidential candidate and opposition leader does not have a passport for seven years now, and he also does not have an office.”
“The government has tried to close more political space. It started clamping down on the opposition. This explains this rise of unorganized, sometimes violent, unpredictable revolts. If these developments are ignored by the international community we might end up with situations similar to those in the Arab world.”
Emin sees an opening for a different kind of opposition under conditions of general dissatisfaction, leading to a gradual transition:
“This is the moment for opposition groups and leaders to come together in a united front, to direct frustration and outrage of the population in a responsible way. The opposition must unite and organize the transition to a parliamentary republic. The problem in 2003 was that the opposition was split. It was not united, not on the street, and not politically. Until now it has never united.”
“A united opposition sharing resources, sharing energy, with a message of unity, thus giving real hope to people could be a historic moment in our country. This means presidential elections this year in October might be very interesting. There are symptoms of real change in the air. It all depends now on how internal and external actors behave in this situation.”
Of course, much can go wrong and even more would have to go right for any of these optimistic scenarios to come about. There still is no united opposition. There is always the potential for further repression. So far there have never been free and fair elections in Azerbaijan, so it is unrealistic to expect 2013 to be different. There are likely to be further arrests. Standing up for democracy and human rights in Baku is a high risk strategy still, and any rewards are highly uncertain.
All of this makes it even more important what messages outside institutions are prepared to send. So I ask Emin: how does he see the role of external actors? Will they care? Will democratic Europe, will European institutions, do what they can to support a peaceful evolution, based on respect for human rights in Azerbaijan?
“The situation in Azerbaijan may change rapidly. The international community must sternly warn the government that any violent suppression of peaceful democratic change will not be accepted. The challenge is to prevent another Egypt, another Libya. The challenge is to have a peaceful transition like in Central Europe in 1989. We need a scenario in Azerbaijan like the one in Eastern Europe at the end of the 1980s.”
As I see Emin off, next to the former royal castle of Saint Germain-en-Laye, I think again of Victor Hugo, and his universal concern for the rights of the oppressed. As Hugo put it in a letter to a publisher of Les Miserables:
“It addresses England as well as Spain, Italy as well as France, Germany as well as Ireland, the republics that harbour slaves as well as empires that have serfs. Social problems go beyond frontiers. Humankind’s wounds, those huge sores that litter the world, do not stop at the blue and red lines drawn on maps”.
This remains as true today as it was in the 19th century.
How to get Bosnia to move forward instead of stagnating further remains a puzzling question.
A few days ago Ed Joseph and Bruce Hitchner published an article with suggestions. It appeared here.
Last week I also had the pleasure of discussing the state of the Western Balkans in general and of Bosnia in particular at an international conference in Ditchley new Oxford. I was struck there how strong the international consensus had become that 1. Bosnia no longer poses any serious security threat, and that 2. the time of thinking about the next big internationally-led reform push is over, the ball really is in the Bosnians’ court. The third consensus was about the importance of the EU accession perspective: not as a panacea, but as an offer Bosnian leaders and society are free to reject, one which remains on the table, and which offers – should there ever be a genuine will in Bosnia – the best way out of its current stagnation.
Ed and Bruce, both of whom know Bosnia well, and for whom I have the highest respect, have a very different perspective from the other side of the Atlantic. I discussed the article with Ed, and we agreed I would put a few comments online to explain my concern.
I see a few problems with the argument in the article:
My concerns start with the title and subtitle: “How to Finally End the War in Bosnia Without a renewed push for Constitutional Reform, Bosnia will remain dangerously adrift – its politics a continuation of war by corrupt means.”
All the buzzwords are included: “war” (twice), danger, adrift, corrupt. But this is deeply misleading.
The real war in Bosnia ended in 1995. It killed almost 100,000 people. Local violence continued for another few years. Since 2001, however, Bosnia has been as peaceful as Croatia or Slovenia. If nobody shoots, nobody gets shot, and nobody prepares to shoot, then the better concept to describe the situation is “peace”. Peace with problems, political tensions, economic difficulties: all true, but this is no war. If such distinctions are lost, it is hard to make policy or debate it.
- the nature of the crisis:
What exactly are the symptoms of the Bosnian crisis described in this article? Here precision is needed. The article describes the crisis through metaphors: the country is “a stagnant pool of special interests that continue to cleave along ethnic lines.” “cleave”? There are different ethnic groups in Bosnia. There was a war between 1992-1995. Is the fact that these identities “along ethnic lines” continue to exist the problem? Otherwise what exactly is wrong with what exact interests, special or otherwise? “stagnant” indeed: a weak economy, low living standards (though higher than in Moldova or Georgia), little structural change (like in many of its Balkan neighbours): but this is not a unique problem of Bosnia.
Nor is the fact that Bosnia’s “overall democratic benchmarks are slipping”. This is the evidence the article offers of what is happening in Bosnia: “Parents can move freely about the country, but educate their children in segregated schools. The economy remains in parlous condition, and faces new challenges and barriers when Croatia joins the EU later this year. Islamist influence among Bosniaks, traditionally exaggerated by Croats and Serbs, is, in fact, a concern.”
“Segregation” is another strong concept: Alabama in the 1950s, South Africa in the 1980s. It involved state coercion. In Bosnia today in some parts of the country some parents chose to put their children in schools according to the main language of instruction – especially Croatian, as the schools most often discussed in the media (one Croatian and one Bosnian language school in the same building or nearby) are in Croat-Bosniac mixed areas. One can deplore this, but it is no different from different language schools in South Tyrol or different confessional schools in North Ireland. It is not a human rights violation.
Let me add here that this does not mean that separate schooling as one finds it in parts of Bosnia is a good thing: having studied in many different countries myself, and having seen my own children educated in a Turkish public school in Istanbul, a state school in Cambridge, Massachussetts, and now a public French (though very international school) in Paris I strongly believe in the value of diversity in education; I also do not think that schools are the primary shaper of identities of pupils, and that the influence of the official curriculum is usually exaggerated. Of course the key for a good education is education for tolerance and mutual respect, as well as quality. Of course Bosnia would be a much better place if the primary focus of policy makers (and parents) would be on quality, not ethnicity. But this is a matter of persuading parents, and voters, not imposing solutions, as long as there are choices.
(As for the situation in South Tyrol read this article: “With regard to linguistic rights there is hardly any area of public and to a considerable extent also private life that is not covered by a complex network of norms, guarantees and remedies. The educational system in South Tyrol is based on separation and the principle of mother tongue instruction.”)
As for “Islamism” (not defined in the article: one assumes violent?) in Bosnia … this has indeed often been exaggerated, as the authors noted, and it is certainy “a concern”: but what exactly is the policy issue, the trend, the problem?
The problem with sloppy language in the Bosnian context – “war”, “segregation”, “special interests cleaving”, “Islamism as a concern” – is that it makes it hard to understand the nature of various challenges. Then the solution is one silver bullet – change the constitution; impose better laws; replace leader X with Y. But all of this has been tried out, and with predictably disappointing results.
The article points out that in the Bosnian context the attraction of possible EU accession is no silver bullet solving the country’s problems either. This is of course true, but not surprising: it has been thus in very many countries.
The “seriousness” of the EU commitment among most of today’s Bosnian leaders resembles that of leaders in Bulgaria in the early 1990s, or in Serbia under Kostunica, or in Slovakia before 1998: it is rhetorical, generally not serious at all, with little sense of what it would take for Bosnia to actually implement the common law of the EU. There are individual exceptions, but compared to the political elite elsewhere the basic illiteracy among Bosnian politicians about the EU is remarkable.
The first reward of making EU accession a national strategic objective is that it provides a direction for national reforms: not to one big reform, but to thousands of specific sectoral reforms, that take years to negotiate with national interests and then implement. This requires leaders who want to see their countries thus transformed: their laws, their institutions, their policies, not just as means for a possible accession in 10 or more years but as ends in themselves. Yes, Croatia’s accession will cause problems for Bosnian’s trying to export milk or other agricultural products, but no, this is not the “fault of Dayton”, as even highly decentralised systems like Belgium are capable of implementing EU food safety and phytosanitary standards. This is the fault of a political process where leaders, civil society and even many internationals much rather discuss identit and constitutional issues rather than specific concrete reforms that might have a major economic impact. So perhaps it really needs a crisis with new hard borders to reform the Bosnian food safety system now? The sense of physical exclusion also pushed much needed (and delayed) reforms needed for visa liberalistion in 2010.
In fact, too few leaders in Bosnia actually appear to want this wholesale transformation of their country and society; too few leaders across all political parties, interests and ethnic groups. This is a problem no constitutional reform can solve. It can only be solved by changes in the thinking of those leaders – or by changes of those leaders at elections. The alternative is not war, but stagnation.
All of the above is more or less consensus today in Brussels and among EU leaders. It was also the consensus at a recent conference in Ditchley on the Balkans. The ball really is in the court of Bosnian leaders, and unfortunately, if they refuse to play, this is where it will remain.
Does this mean things are hopeless? No.
Bosnians have surprised outsiders and themselves before (for just one encouraging recent story look at this ESI portrait of a Bosnian prime minister). So have Bulgarians after 1997 (more on that turning point here) So have Slovaks, Montenegrin, Croats. But it does mean that the key change must be a change in the debate in Bosnia itself … (while having a more focused and specific debate, ethat does not produce excuses for inaction, among outside observers, might also help).
2013 could be a big year for visa free travel in Europe, with important decisions upcoming concerning Turkey and Moldova. It could also be a disastrous year for the cause of free travel if visas are reimposed on the Western Balkans.
It is appropriate, therefore, that the first report ESI publishes in 2013 – on 1 January to be precise – deals with this very question. You will find the full report on our website later this week, but if you want an advance copy right away let me know (write to email@example.com). Below you find for now the executive summary and some of the most interesting findings as exerpts from this report. We also recently presented these findings to senior officials in Rome, Berlin, Brussels and Stockholm.
In the meantime the whole ESI team and your Rumeli Observer wish you a happy and productive 2013!
NEW ESI REPORT – 1 January 2013
Saving visa-free travel – Visa, asylum and the EU roadmap policy
Since the visa requirement was lifted for Western Balkan countries in 2009, there has been a sharp increase in claims for political asylum by citizens of the region. Barely any of these applicants qualify for asylum. Rather, they are benefitting from national
asylum rules that provide relatively generous benefits during the application process.
Since 2010, EU leaders have demanded that Balkan governments take measures to stem this tide of asylum seekers. In fact, the problem lies with ‘pull factors’ inside the EU. Now, EU policymakers find themselves under increasing pressure to address the problem directly by suspending visa-free travel for Western Balkan countries. Such a draconian measure would undermine the credibility of the EU’s whole approach to visa liberalisation – not just in the Western Balkans, but also in Moldova, Kosovo, Turkey and the Ukraine. But it is by no means the only solution available.
In the world of justice and home affairs, clear-cut solutions to complex issues are generally hard to come by. There are inevitable trade-offs to be made between controlling borders and allowing the free movement of people; between protecting individual liberties and safeguarding the public. When it comes to visa liberalisation in the Balkans, however, there is a clear solution that reconciles the concerns of all the different constituencies involved. The solution is to make it less attractive for those who clearly do not qualify for asylum to submit speculative or bogus claims.
Under EU rules, all member states provide asylum seekers with financial and material support while their applications are being processes. But there is a sharp difference between two groups of countries: those that take many months to process their asylum
claims, and those that dispose of them within a few weeks. It is the lengthy processing times found in Germany, Sweden and other EU members (up to 8 months with appeals) that acts as the magnet for unjustified asylum seekers. The EU members able to deal expeditiously with asylum claims face a significantly lower numbers of applications.
This paper proposes two possible solutions. One is to address the problem at the national level. Those states that have seen a sharp increase in applications from the Balkans could radically shorten their procedures. They could follow the example of Switzerland, which has recently introduced a 48-hour procedure for applicants from safe European countries like the Balkans. The other option is to tackle the problem at the EU level. The EU should label countries that have completed a visa liberalisation process as “safe countries of origin”, allowing for lighter and quicker processing procedures. We believe that the ideal response would be to pursue both solutions in parallel.
Such a solution would not close off the rights of genuine refugees to apply for and receive asylum. The statistics reveal that countries with shorter procedures in fact accept a higher proportion of their asylum applications. It would, however, help to weed out speculative claims and bring down the costs for European taxpayers. It would also safeguard visa-free travel for the Western Balkans, which has proved a critical step in giving hope and a sense of direction to a troubled region on the EU’s borders.
Macedonia and accession: how the arguments of supporters of early accession talks prevailed
As EU member states gathered last week to discuss Council Conclusions relating to Macedonia two camps of member states emerged with two versions of these conclusions. To understand whose arguments prevailed – and how to judge what happened – it is important to go beyond facile conclusions and take a closer look at both proposals.
On the one hand there was a majority of member states who favored very positive language. These states were hoping to encourage a proactive Commission to take the initiative and to prepare the ground to launch EU accession talks with Macedonia already in June 2013. They were hoping that in the end both Greece and Bulgaria would agree that this was also in their interest … that this was truly an issue where all sides could win.
In this group’s draft of the Council Conclusions a concrete date – June 2013 – is given for the possible opening of accession negotiations. This version states that the Council examines further progress in Macedonia on the basis of a Commission report before June 2013. It asks the Commission to submit “in due time” (i.e. at its own discretion, meaning it could start work on it right away in early 2013) a proposal for a negotiations framework, to be ready by June. It also invites the Commission to begin the “analytical examination of the acquis” (screening) right away.
Here are the key paragraphs of this maximalist proposal, backed by most member states and the Commission last week:
3. The Council largely shares the Commission’s assessment that the political criteria continue to be sufficiently met and takes note of its recommendation that accession negotiations be opened with the former Yugoslav Republic of Macedonia.
5. With a view to the possible opening of accession negotiations with the former Yugoslav Republic of Macedonia in June 2013, the Council will examine progress in the implementation of reforms in the context of the High Level Accession Dialogue, on the basis of a report to be presented by the Commission in the first half of 2013. The Commission is invited to submit in due time a proposal for a framework for negotiations with the former Yugoslav Republic of Macedonia in line with the European Council’s December 2006 conclusions and established practice, which also takes into account good neighbourly relations. Taking into account the new approach to accession negotiations as regards the chapters on the judiciary and fundamental rights, and justice, freedom and security, the Commission is also invited to carry out the process of analytical examination of the EU acquis on these chapters.
Faced with this France, backed by a much smaller number of other EU states, put a counter-proposal on the table late last week. This version assesses progress in Macedonia less positively (the Council no longer “largely” but only “broadly” shares the Commission’s positive assessment). The minimalist proposal removes any reference to any concrete date. At an unspecified future moment, the European council would once again have to decide and invite the commission to submit a proposal for a negotiations framework. This would happen only “once all the conditions are met”, which is not explained. The minimalist version states that in order to start screening another Council decision would be needed to task the Commission to do so. For now the commission gets no mandate to do anything until further notice.
Here is the full text of the minimalist version:
3. The Council broadly shares the Commission’s assessment that the political criteria continue to be sufficiently met and takes note of its recommendation that accession negotiations be opened with the former Yugoslav Republic of Macedonia.
5. Before opening accession negotiations with the former Yugoslav Republic of Macedonia, a decision which will be considered in due time by the European Council, in line with established practice, the Council will continue to examine progress in the implementation of reforms including in the context of the High Level Accession Dialogue. Once all conditions are met, theEuropean Council will invite the Commission to submit a proposal for a framework for negotiations with the former Yugoslav Republic of Macedonia in line with the European Council’s December 2006 conclusions and established practice, which also takes into account good neighbourly relations. Taking into account the new approach to accession negotiations as regards the chapters on the judiciary and fundamental rights, and justice, freedom and security, the European Councilwill also invite the Commission to carry out the process of analytical examination of the EU acquis on these chapters.
So what actually happened? In all EU negotiations there is usually a give and take. However, if one takes a look at the final text of the Council Conclusions one sees clearly that the maximalist proposal emerged largely victorious.
In the final text the following was agreed:
- the council “largely” (not “broadely”) shares the Commission’s positive view that Macedonia was ready to open talks (the maximalist version).
- The council tasks the Commission already now to produce a report “in spring 2013” “with a view to a possible decision of the European Council to open accession negotiations”.
- The council commits that it will assess this report “during the next presidency”, i.e. before July 2013.
- Provided that the assessment is positive, the Commission will be invited to submit “without delay” (i.e. as quickly as it can) a framework for negotiations.
- Provided that the assessment is positive the Commission will be invited to start screening two chapters, i.e. before accession talks begin.
- The Council even “takes note” that the Commission “will conduct all the necessary preparatory work in this respect” … which means that Commission can start preparing both the negotiations framework and screening right away.
Look at the finally agreed text of the conclusions and the answer whose arguments won the day is obvious:
40. The Council largely shares the Commission’s assessment that the political criteria continue to be sufficiently met and takes note of its recommendation that accession negotiations be opened with the former Yugoslav Republic of Macedonia.
42. With a view to a possible decision of the European Council to open accession negotiations with the former Yugoslav Republic of Macedonia, the Council will examine, on the basis of a report to be presented by the Commission in Spring 2013, implementation of reforms in the context of the HLAD, as well as steps taken to promote good neighbourly relations and to reach a negotiated and mutually accepted solution to the name issue under the auspices of the UN. In this perspective, the Council will assess the report during the next Presidency. Provided that the assessment is positive, the Commission will be invited by the European Council to: (1) submit without delay a proposal for a framework for negotiations with the former Yugoslav Republic of Macedonia, in line with the European Council’s December 2006 conclusions and established practice; (2) carry out the process of analytical examination of the EU acquis beginning with the chapters on the judiciary and fundamental rights, and justice, freedom and security. The Council takes note of the intention of the Commission to conduct all the necessary preparatory work in this respect.
The original plan of the Commission and of the member states who supported the maximalist version was to create a new momentum emerging from this Council. In this they succeeded.
- The Commission can immediately begin to prepare its “spring report” which the Council will assess before July 2013.
- The Commission can immediately begin to prepare for the analytical screening of two chapters and draft a proposal for negotiations.
- Once the Council accepts a positive Commission report the Commission will submit the framework for negotiations “without delay”
One basic reality has obviously not changed: Greece will have to agree to the opening of accession talks. Expecting anything else was always unrealistic. The hopes of the friends of opening accession talks were to kick-start a process of finding a solution to the name issue in the first few months of 2013. Both supporters of opening talks soon and minimalists agreed on this paragraph without arguing:
41. As set out in the European Council conclusions of June 2008, maintaining good neighbourly relations, including a negotiated and mutually accepted solution to the name issue, under the auspices of the UN, remains essential. There is a need to bring the longstanding discussions on the name issue to a definitive conclusion without delay. The Council welcomes the momentum that has been generated by recent contacts/exchanges between the two parties, following the Greek proposal for a memorandum of understanding. The Council is, moreover, encouraged by recent contacts with the UN mediator.
The important point is this: if there is a positive European commission report following enough movement on the name issue and on good neighbourly relations all preparations will have been made to launch accession talks in 2013 without delay.
Clearly the pressure has increased further for a serious effort to find a breakthrough in early 2013. This is pressure on everyone: on the Commission, on interested EU member states, but above all on Skopje and Athens. The fact that Greece accepted these conclusions, however, is another small positive sign.
The European Commission’s hope from the very beginning was to energize the search for a mutually agreed solution to the name issue. The commission and most member states wanted a date in the conclusions when accession talks would possibly be opened. Now there are two dates in the conclusions: a report by the commission on progress by “spring” (April) with a view to start accession talks; and a Council assessment of this “before the next presidency” (before July).
An additional paragraph was also inserted upon the initiative of Bulgaria:
In light of the overall importance of maintaining good neighbourly relations, the Council also notes the recent high level contacts between the former Yugoslav Republic of Macedonia and Bulgaria and looks forward to their translation into concrete actions and results.
This means: if there is an agreed solution on the name issue soon, and if there are ‘concrete actions and results’ from high level meetings with Bulgaria till April, the goal to start accession talks in 2013 “before the next presidency” or very early in it remains alive. These are one big and one (slightly) smaller if. But a focused effort by the Commission and by member states supportive of opening accession talks soon has prepared a more promising playing field for a breakthrough than there has been in a while. What is needed now is a serious and imaginative solution to the name dispute before the commission reports “in the spring”; a solution that allows both Athens and Skopje to unlock the current destructive stalemate in a manner that both governments can defend before their domestic constituencies.
The Council was a warm up exercise. Now the real game begins. Athens and Skopje face a prisoners dilemma: if neither side believes that a solution is possible, and acts on this, both will lose. If both sides take a calculated risk to take the search for a mutually acceptable solution seriously both can win.
By spring 2013 we will know the outcome … sooner rather than later.
A few months ago I visited Macedonia to present EU diplomats, ambassadors, the Macedonian prime minister, the foreign minister and party leaders a slighly revised version of the ESI proposal for overcoming the stalemate in the name dispute between Macedonia and Greece.
I also presented this proposal once again in Brussels, Berlin and in other EU capitals. I gave everyone a paper copy of the revised proposal. Since then it has circulated among EU diplomats.
It would be foolish to be too optimistic that anything can help overcome such a complicated dispute. And yet, there are a number of reasons to be more optimistic this time than in a long while. I remain convinced also that nothing can be forced by outsiders on either party, not now, not later. It will take a compromise that national leaders can present to their publics in both Skopje and Athens as a step forward for their side; and one where both sides retain their leverage until actual EU accession of Macedonia.
Then, earlier this month, the Macedonian weekly Gradjanski reported the following:
“drawing on unnamed diplomats, reported that Brussels was working on a‘date for date’ strategy about the country in December: start of membership negotiations would be announced for next June with Skopje being obliged to deliver by then tangible results on good neighbourly relations (improved ties with Bulgaria and Greece, including essential reviving of the name negotiations). The sources stressed the importance in this context of a constructive response of Skopje to Greece’s memorandum, which would offer ideas, but also pointed at the government being reserved about the plan. The weekly also reported on an upgraded 2010 proposal by the European Stability Initiative that the name issue be resolved in the early stage of membership negotiations but the referendum on the solution take place at the end of the process, i.e. together with the referendum on EU membership. According to Gragjanski, the upgraded document, which is reportedly supported by an influential lobby group in Brussels, foresees for the new composite name to immediately replace the current reference and its wider use to enter into force together with EU accession. Constitutional changes are expected from Skopje in order to accept the new name for international use; the constitutional name will remain official name of the country in its official languages and the use of the adjective ‘Macedonian’ will not be called in question, says the proposal.”
I have since been asked by a number of people to share the new version of the proposal. This then is the latest version in full:
What is needed is a way forward that accepts the bottom lines for Athens and Skopje. This can be achieved through a constitutional amendment in Skopje that changes the name of the country with a geographic qualifier today: to replace Former Yugoslav Republic of Macedonia where the latter is currently in use, allowing Athens to support the start of EU accession talks and to sending an invitation to join NATO later this year or early next year, but which foresees that the change will enter into force permanently and erga omnes on the day Macedonia actually joins the EU.
Such a solution is possible if the following happens:
1. There is active mediation between both sides which focus solely on finding a compromise name for the country with a geographical modifier, dealing with the issues of RM NATO accession and the opening of EU
2. Greece and RM agree on a compromise name, XYZ, with a geographical modifier. This will immediately replace F.Y.R.O.M. wherever that is currently in use in international
3. Greece commits to allow RM to join NATO under this new provisional name XYZ and an invitation to join NATO is extended.
4. RM changes its constitution to say something like this:
“From the day the Republic of Macedonia joins the European Union the international name of the country will be XYZ, used erga omnes in all languages other than the official languages of the country.”
The promised referendum on EU accession at the end of the negotiation process becomes thereby de facto the real referendum on the name issue (there was no referendum for F.Y.R.O.M., and until accession the new name is used only in place of F.Y.R.O.M.).
Leaders in RM replace one name their citizens do not like (referring to a state that has disappeared decades ago, Yugoslavia) with another name they do not like, both used in the same way.
Neither side loses leverage in the future. If future Greek governments block EU accession of RM or make additional demands judged unacceptable in Skopje this would also delay the entering into force of the core provision of this compromise. Greece shows its EU partners that it remains actively in favor of Balkan enlargement. Greece also keeps its leverage until the very end of the accession process