Post-Lisbon human rights promotion in the Western Balkans: EU complicity in non-compliance? Bea Huszka (ELTE) Zsolt Körtvélyesi (ELTE)

Post-Lisbon human rights promotion in the Western Balkans: EU complicity in non-compliance? Bea Huszka (ELTE) Zsolt Körtvélyesi (ELTE)

Half-full or half-empty EU enlargement policy: As the EU s most efficient foreign policy instrument Human rights at the core of enlargement policy However, the EU can hardly live up to its own ideals in its foreign policy. Questions about the real impact in target countries.

The research First, looking at EU human rights priorities Three levels: stated goals / voicing criticism (declaratory assessment) / actual measures (tools & instruments applied) Assessing the efficiency of conditionality, measuring the EU s real impact on existing human rights practices Research question: What difference does the EU make in improving human rights practices in Serbia and BiH?

Structure 1) Analysing the EU s human rights priorities through reviewing the various instruments the EU has deployed in these two countries since 2009 and what has been their impact 2) two case studies: a) anti-discrimination reform in BiH b) media reform in Serbia

Preliminary observations Both countries have pursued the strategy of reluctant partial compliance, that is the introduction of some formal legal and institutional measures which are just not enough for reaching the originally desired effect of these reforms, thus fall short of implementation. Both BiH and Serbia could get away with half measures, without serious reprisals from the EU s side, most importantly halting integration progress.

Preliminary assessment The EU can quite effectively push for the adoption of formal measures, but crossing the threshold of actual implementation, changing practices remains a challenge. Compliance is expected where high and credible* incentives go along with low domestic adoption costs. (*: not only promises and benefits, but withdrawing rewards in the case of non-compliance); based on a theory of external governance, Schimmelfennig & Sedelmeier, 2004 Role of inconsistences, undermining the impact. The EU promotes human rights selectively and strategically, balancing between the need to keep the partner countries on the integration path and the need to sustain its norms and principles.

Bosnia and Herzegovina: Instruments EU Instruments 2010-2015 Annual progress reports, Enlargements strategies, Council conclusions, IPA documents and Visa liberalization documents. Bosnia and Herzegovina special instruments: Structured dialogue on justice, High Level Dialogue on the Accession Process (HLDAP), and Compact for Growth.

Bosnia and Herzegovina Non-complying, unmotivated would-be candidate: low degree of EU leverage 2008: SAA signed, but not ratified until 2015 (deadlock of Sejdić-Finci) 2014: EU announces new approach June 2015: SAA entered into force July 2015: BiH adopts Reform Agenda (economic, judicial, public administration reforms), its implementation becoming the main condition of considering membership application

Visa liberalization (2009-2010) Results from the carrot of visa liberalization (unusual instrument of HR promotion): creating a state-level personal data protection office and making it operational, issuing ID cards for refugees, adopting the law on anti-discrimination, establishing the ombudsman at the state level, making the first steps to collect data on ethnically motivated incidents and to create a registry of the Roma and their needs.

Bosnia and Herzegovina Issues monitored in progress reports are standardised over time and across countries. Enlargement strategies highlight the most important topics thus it is revealing which human rights issues are selected for being included in the strategies. It is difficult to see here the EU conditionality policy s impact, only the EU s priorities can be seen to a certain extent.

HR priorities in BiH enlargement strategies 2010 2011 2012 2013 2014 2015 Essential conditions Constitutional reform, by harmonisation the constitution with the ECHR; Adoption of the state-level census law; making progress towards meeting the conditions which have been set for the closure of the Office of the High Representative (OHR). Harmonisation of the Constitution with the ECHR (i.e. implementation of the Sejdić- Finci case); the adoption of the state-level census law; adoption of the State Aid Law Implement. of the Sejdić-Finci judgement and the establishment of an effective coordination mechanism on EU matters, implementation of the country s State Aid obligations Harmonization of the constitution with the Sejdić-Finci judgement of the ECHR, and establishing an EU coordination mechanism. Setting up a wellfunctioning coordination mechanism on EU matters. Public administration also needs strengthening across the board. Constitutional reform (including Sejdić-Finci) and public administration reform; more effective coordination and cooperation between all levels of government

HR priorities in BiH enlargement strategies 2010 2011 2012 2013 2014 2015 Death penalty Torture and ill-treatment X IPA Prison conditions X X IPA Access to justice X X X IPA Freedom of expression and media freedom X IPA IPA X X X X IPA X Freedom of assembly and freedom of association Freedom of thought, conscience and religion Women s rights and gender equality X IPA X X IPA IPA IPA Children s rights X IPA IPA X X IPA IPA X IPA Right to education IPA IPA IPA IPA Socially vulnerable and people with disabilities IPA IPA X IPA IPA IPA Anti-discrimination X X X X X IPA LGBT X X X IPA X Labour and trade union rights X IPA X IPA IPA IPA X Social rights IPA X X IPA IPA IPA Property rights Minority rights X IPA IPA X IPA X IPA X X Roma X IPA IPA X X IPA X IPA X IPA X Refugees, IDPs, returnees X IPA IPA X X IPA X IPA X IPA War crimes X IPA X X IPA X IPA X Civil society X IPA IPA X IPA Human trafficking X X X Personal data protection X X X Missing persons IPA

Human rights priorities in practice First order issues: minority rights, war crimes, media freedom, Roma rights, antidiscrimination and LGBTI rights, refugees and IDPs. Second order : children s rights, access to justice, social rights, women s rights, civil society, human trafficking and personal data protection, torture and ill treatment, freedom of assembly and association, freedom of religion, vulnerable groups (i.e. disabled people), labour rights, property rights, and the issue of missing persons

Anti-discrimination reform (BiH) Law on anti-discrimination adopted under EU pressure as part of the visa liberalization process in 2009, picked up by the structured dialogue. But: Judicial implementation remained sporadic at best (low number of court cases involving discrimination). Potential victims are unaware of the existing protection mechanisms in the absence of awareness raising campaigns. The Ministry of Human Rights and Return still has not begun to collect data on discrimination and compile the yearly reports required by this law. The Human Rights Ombudsman of Bosnia and Herzegovina has been quite passive in addressing systemic problems resulting in discrimination. The anti-discrimination law has not been transposed to other laws such as the labour law and law on higher education.

The EU s selective criticism (Anti-discrimination relates to four issue areas: minorities, Roma, IDPs, LGBTI) Concerning minorities the EU put overwhelming emphasis on political rights of minorities to run for the highest state offices (Sejdić-Finci case) Other dimensions of discrimination, such as concerning political representation of minorities at the level of the entities or locally, and participation in the labor force are not addressed in EU documents. Members of the dominant ethnic group are usually hired over anyone else which affects both others and constituent people in minority position. And: without meeting the criteria of anti-discrimination or the condition on the Sejdić-Finci case, the EU decided to implement the SAA with BiH in June 2015.

Changing approach? 2015 progress report much more critical than before Reason: the new reform agenda + the SAA entered into force, the leverage on the EU s side to raise issues on HR is bigger. HR issues are assessed in the context of a possible opinion the Commission has to prepare if Bosnia applies for membership. The sequencing of Sejdić-Finci conditionality has changed, it will be assessed in the context of an opinion on application of membership.

EU HR agenda for Serbia Two main conditions: ICTY cooperation (2011) and normalization with Kosovo (2013) Serbia, a complying candidate In January 2014 EU officially opened membership negotiations with Serbia What has the EU achieved concerning human rights in an accession candidate state, which has demonstrated strong commitment to EU integration?

HR agenda for Serbia: selected instruments 2010 EU enlargement strategy, country conclusions 2011 Commiss. opinion 2012 EU enlargement strategy, country conclusions 2013 EU Progress Report highlighted HR issues 2013 April EC opinion on Serbia s membership application January 2014 Negotiation Framework 2014 EU Progress Report highlighte d HR issues 2015 Enlarg. Strategy & Progress Rep. highlighted HR issues Essential conditions ICTY coop., Kosovo, judicial and public administration reform, fight against organized crime and corruption. Normaliz. with Kosovo Normaliz. with Kosovo 1. Normaliz. with Kosovo 2. rule of law: particularly judicial reform and anticorruption policy, independence of key institutions, media freedom, antidiscrimination policy, the protection of minorities and the business environment. 4.commitment to regional cooperation and reconciliation. Normaliz. with Kosovo 1. Copenhage n criteria 2. Good neighbourly relations 3. Normalizati on with Kosovo 1. Action plans for chapters 23 and 24 2. Normaliz. with Kosovo Judicial reform, fight against corruption and organized crime, and economic reforms

HR agenda for Serbia: selected instruments 2010 Enl. Str. 2011 EC opin. 2012 Enl. Str. 2013 Enl. Str. 2013 Apr. EC opin. (mbs. app.) Jan. 2014 Negot. Fw. 2014 EU Progr. Rep. Observance of international human rights law X X X Freedom of movement Ombudsman X X, EP, DP X X, EP, DSA X Right to fair trial X X X, IPA X X X Prohibition of torture and ill treatment X, EP X X Right to privacy EP Prison conditions X, IPA X, EP, X, X, IPA X Freedom of thought, conscience and religion X X Freed. of expr. incl. media (pluralism) X, EP X, EP X, EP, IPA X, EP, CC X X X, EP, DP, DSA, CC X, CC Freedom of assembly and association X X X Labour and trade union rights EP, IPA X, EP, IPA EP, IPA EP anti-discrimination X X, EP, IPA X, EP, CC X, EP, DP, CC, IPA X X X, EP, DP, DSA, CC X, CC socially vulnerable and disabled persons X IPA IPA X, EP, IPA X X LGBTI X EP X, EP, CC X, EP, DP, CC, IPA X X X, DP, DSA, CC X, CC Right to education IPA IPA IPA Right to property X X, EP X, EP EP EP Gender equality and women's rights X EP, IPA X, EP, CC, IPA X, EP, CC, IPA X, CC CC Rights of the child X EP, IPA X, X, IPA X, EP Respect for and prot. of min.ties and cult. rts. X X, EP, IPA X, EP, CC, IPA X, EP, DP, CC, IPA X X X, EP, DP, DSA, CC X, CC Roma rights X, EP X, EP X, EP, CC, IPA X, EP, DP, CC, IPA X X X, EP, DP, CC, IPA X, CC Refugees, IDPs X, EP, IPA X, EP, IPA X, IPA X, IPA X, IPA X Right to asylum EP IPA IPA Protection of personal data X X Human trafficking X EP IPA War crimes prosecution CC X, EP, CC X, EP X, EP X, EP X Missing persons EP X, EP X, EP 2015 Enl. Str.

Visa liberalization (2008-2009) human rights criteria: right to asylum, combatting human trafficking, personal data protection, freedom of movement, anti-discrimination and the protection of minorities including the Roma conditionality tied to a specific goal, i.e. the elimination of visa obligation Partial compliance by Serbia, partial monitoring by the EU Yet, the visa liberalization gave an impetus to a number of human rights reforms

EU priorities in practice Enlargement strategies, progress reports, Commission s opinion, negotiation framework, IPA documents, Council conclusions, dialogues, EP resolutions clear EU priorities: freedom of expression, including freedom and pluralism of the media, non-discrimination, LGBTI rights, respect for and protection of minorities, Roma rights In addition, right to a fair trial, prison conditions, children s rights, women s rights and refugees received more attention, i.e. were among IPA priorities and highlighted issues in the last two progress reports.

Media reform in Serbia: formal compliance Serbia, the complying candidate? Media reform also as a response to EU conditionality (like other HR-related reforms including anti-discrimination, data commissioner, Roma action plans) Formal obligations (set under the 2011 media strategy) mostly met: Public Information and Media Act; Electronic Media Act; Public Media Services Act all adopted; Advertising Act remains to be adopted. The legal framework itself is mostly in line with European standards.

Media reform in Serbia: implementation Goals: - eliminate state ownership of any media, - move to project-based financing, - protect media pluralism and - ensure transparency in media ownership. Assessment: - Considerable delays in the adoption of important enactments, - the necessary bylaws have not been passed yet, which had to be prepared in 200 days after the laws adoption - the state s constant reluctance to withdraw from media ownership and - the major gaps between the letter of the law and practice.

Media reform in Serbia: challenges Although libel was decriminalized, newspapers are still being sued for insult instead of libel. Investigative journalists tend to be threatened with lawsuits, and their outlets are put under financial pressure. Threats and physical attacks on journalists is still a frequent problem, exacerbated by inadequate response from authorities. While there is political pressure on journalists, several tabloids act as mouthpiece of the government. Altogether, despite putting the legal framework in place during recent period of time, conditions of media freedom have deteriorated.

Media reform in Serbia (& BiH): any progress? Points / Rankings 2009 2010 2011 2012 2013 2014 2015 IREX Serbia 2.35 2.07 2.06 1.90 1.92 1.90 IREX Bosnia 2.81 2.59 2.22 1.97 2.02 2.04 Reporters Without Borders, Serbia 62 85 80 80 63 54 67 Reporters Without Borders, Bosnia 39 47-68 68 66 66 Freedom House, press freedom index, Serbia Freedom House, press freedom index, Bosnia 35 33 35 36 37 40 47 48 48 48 49 50

Credibility and consistency with internal policies This is not a post-yugoslav phenomenon; many of these problems are similar in EU member states. Despite an overall trend toward the abolition of criminal defamation laws, to say such laws are alive and well in the European Union would be putting it mildly. Of the 28 EU member states, only five have repealed criminal defamation as an offence against private individuals: Cyprus, Estonia, Ireland, Romania and the United Kingdom (International Press) On the World Press Freedom index Hungary ranked just three places higher than Serbia (64 and 67), with another EU member, Croatia, in between (65). Greece was 91 st and Italy 73 rd in 2015.

Media reform in Serbia: assessment With Serbia s EU relations upgraded to the highest level before actual membership, one could expect improving trends in human rights. Serbia in principle has met the Copenhagen criteria and among them the respect of human rights and the protection of minorities. Yet, trends seem to suggest the opposite, see e.g. the ombudsman s report 2013 and 2014 in the area of social and economic rights & EU s progress reports in 2014 and 2015: underlined negative trends regarding the freedom of expression and independent bodies, human rights defenders and independent journalists.

Assessing the wider context Florian Bieber: we are witnessing an authoritarian turn in Serbia represented by measures which aim at suppressing criticism against the government; by cracking down on media freedom, independent institutions such as the ombudsman. Seemingly reinforced by the EU accession process as it requires and rewards a strong leadership which can deliver and which promotes a pro-eu discourse. There are fears that if Serbia continues to comply on the Kosovo issue, the EU will close its eyes on human rights violations and the government can get by with partial or fake measures. Once accession negotiations on Chapter 23 start (when? the role of timing), these might offer the opportunity for a more systematic and meticulous conditionality policy taking effect.

Conclusions The EU does not apply sanctions because of the inadequate fulfilment of human rights criteria (exceptions: ICTY cooperation and the Sejdić-Finci case) Human rights conditions are usually not linked to certain stages of EU integration, but represent requirements formulated in rather broad terms (e.g. the effective system of free legal aid in Serbia) If there are deadlines they are not followed through (public broadcasting reform in BiH)

Conclusions For credible conditionality conditions should be consistently linked to rewards the EU should provide feedback in the form of sanctions or rewards on incremental changes Inconsistencies related to the performance of EU member states also weaken the power of conditionality (right for asylum, Roma rights and media freedom) While trying to assess impact, the absence of references to statistics or numerical indicators it is difficult to see ongoing tendencies (Roma rights in Serbia)

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