Harry Hummel: ‘The EU is Built upon the Assumption that all its Members are Grown-up Democracies’

Published by Anastasia Ovsyannikova at 29/11/2016

Harry Hummel. Source: uacrisis.org

In an interview for the Legal Dialogue, Harry Hummel, Associate Policy Director of the Netherlands Helsinki Committee and member of the Steering Committee of the EU-Russia Civil Form, shares his thoughts on the threats to human rights that arise from the political processes in Eastern and Western Europe, how human rights groups could respond to modern socio-economic challenges, and whether the European civil society can contribute to the restraining of authoritarian regime in Russia.

What do the political changes in such countries as Russia or Hungary mean from the human rights perspective? How do they change European human rights agendas?
If we look at the situation both in Russia and the EU countries, I think the main issue when it comes to human rights protection and rule of law is the rise of authoritarian democracies, i.e. systems where the leaders continue with such things as elections or political parties, while transforming essential features of the systems in such a way that twists decision-making in their favour. This is something that we have seen in Russia and are seeing in Turkey and, at least in some features, in Hungary and Poland. A couple of years ago, in the speech which has become quite famous, the Hungarian leader Viktor Orbán referred to it as illiberal democracy and mentioned Putin and Erdoğan as examples of a style of governing which, in his view, is more appropriate for the current age than the kind of traditional Western “imported” democratic procedures and structures.What we see now is that many features of this style of governing appear in political programmes and speeches by the leaders of nationalist parties in Western European countries, such as Front National in France and UKIP in the UK. In some other countries you also see right-wing nationalists making statements in favour of Putin and his style of governing. If you analyse voting in the European Parliament you recognise that most pro-Russian behaviour comes from these parties. This is not, as I see, a coherent and uniform movement yet. When it comes, for example, to human rights protection for LGBT persons, the Dutch right-wing nationalists are very much in favour of freedom for LGBT expression. This must be seen in context of their rejection of Islam: they want to project themselves as anti-Islamic, therefore, they promote LGBT and women’s rights. This position is stronger than so-called traditional values that are promoted in the human rights discussion by Russia. But this is only one element, and I give this example to make clear that, to some extent at least, people instrumentalise their argument so you doubt whether they are really fundamentally convinced in their own ideological positions. They adopt or reject the arguments such as LGBT rights, depending on whether it suits them or not. Similarly, you can doubt whether Putin and those around him have really become so religious all of a sudden, but they picked this very issue of LGBT rights to blame the West for being too libertarian and damaging traditional family, because this is what suits them.The problem in places like Hungary, Poland and, I guess, in many ways, also in Russia, is that protection mechanisms against the takeover by determined groups who want to change the rule of law and twist the guarantees against human rights abuse, are insufficient. In Poland, for example, there is the Constitutional Tribunal, designed, of course, to protect the rule of law against one-sided decisions by the Parliament or by the executive power. And there’s a fight between the Constitutional Tribunal and the new government supported by the parliamentary majority, and the question is whether in the longer run the Constitutional Tribunal will be able to withstand this pressure. After the term in office of the Constitutional Tribunal members is over, new appointments will be made by either the President, or the Parliament, or the combination of both. So in the coming years they can easily have a more supportive Constitutional Tribunal¹See also: Małgorzata Szuleka, “The constitutional crisis in Poland. Remarks on the Polish legal community’s reaction to the constitutional crisis” in this issue of Legal Dialogue.

Are you saying that, at least in part, these processes, in Poland, for example, are the consequence of poor institutional design? And if so, could there, in theory, exist an ideal design that would prevent these things from happening, once and for all?
Looking from the perspective of the Netherlands, one thing that I have been very surprised about is that in Hungary, for example, it is very easy to change the Constitution. You need a two-thirds majority in Parliament, and basically that’s all. In the Netherlands it takes two steps. You also need a two-thirds majority, but then there’s a new election, after which another vote has to be taken, and the new vote also has to get the two-thirds majority, and this applies to both chambers of the Parliament. However, in the Netherlands we also have some elements of poor institutional design. In particular, we lack a constitutional court, so in a way our constitution is a dead document. There are no judges who can say that this or that law is against the constitution. So in our country the European Convention of Human Rights takes over much of this role because it can be applied directly by the judges. This is a slightly weird situation which exists only in the Netherlands and Switzerland. All other European countries have some systems of checking by the judges whether the legislation is in agreement with the constitution. But if, like in Hungary, you can change the constitution overnight, this provision has much less sense. Right, there’s always the European Court of Human Rights, but it takes many years for this system to produce a final verdict, and then, if you want, you can still drag out the implementation of the verdict for quite some time.People in countries such as Hungary and Poland have been looking very much at the European Union and expecting it to rectify these matters, but the EU has no real power here. During the process of admission of the new members it pays a lot of attention to human rights and rule of law standards, there are criteria which you have to meet to become a member. But once you’re in, the mechanisms are much weaker. The EU is built upon the assumption that all its members are grown-up democracies and can trust each other. It becomes increasingly clear that this assumption is a little bit too optimistic. However, there are attempts by the European Parliament, European Commission and some of the national governments to create mechanisms that would rectify this situation.

I understand this is a challenge because many in those conservative countries would regard it as intrusion into their sovereignty.
Yes, this is one of the most important arguments, and I’ve heard from some people in Orbán’s government, for example, that they opened their country for European markets, companies and goods to sell; in exchange Europe gives them assistance funds, but it should not interfere with the ways they spend these funds and, generally, manage their country. This is their big argument.

This is exactly what I was going to ask you next. Not just the presidents or governments are saying these things. It seems that quite a lot of people in these countries, including Russia, are genuinely happy to exchange their human rights for the ideas of national greatness or stability. And they say this is what democracy means, it’s the majority choice, so shut up and get out. What is your opinion about this contradiction, or maybe seeming contradiction, between human rights and democracy?
Well, there is tension, I think. If you look at the broader discussion of human rights globally, there is the ongoing disagreement about socio-economic rights: whether they are proper human rights and whether they should be protected in a way similar to more classic fundamental freedoms. By now, a large part of human rights NGOs worldwide have become convinced that the socio-economic rights also merit protection. But if you go to the neoliberal circles in the United States or in Europe – for example, magazines like The Economist – they are very much against this idea. They think that socio-economic rights is not something that should be dealt with by politics, that this is something up to the free market and we should not interfere. So they reject basically the notion of socio-economic rights as something that governments are obliged to fulfill.But the same discussion in Europe now applies to more classic issues, such as the rule of law, diversity of the media, and those types of things. This is also where there is a possible clash between what the democratically elected representatives of the majority want, and the rule of law and human rights concepts. In the intellectual discussion in Poland people are now saying that the shift away from Communism and the membership of the EU have been presented too much as just a matter of economic freedom but not any other types of values. This is somewhat similar to what Lithuanian human rights activists once said to me some years ago. They said, we had a nationalistic revolution and liberation from the Soviet Union, but we have not had a democratic revolution. If you interpret democracy in the sense of majority voting and doing whatever pleases them, then Lithuania of course is a democracy. But if you interpret democracy in the sense of democratic values which include the rule of law, human rights and protection of minorities, then what they said is very true. Democracy is not just that you go to the polling station every couple of years and vote for the people to represent you. It also includes a cultural change of the ways in which people deal with each other, and acceptance of an opposing position without wanting to suppress this opposition.

What should be the role of human rights groups in this cultural change? What do the human rights groups have to say to those of the public who do not believe in human rights?
Again looking at the debate in Poland on how democracy and liberal values have been introduced or not introduced in the country, a number of people say that the human rights groups have focused in a limited way on human rights as a legal issue. The main human rights groups in places like Poland, Hungary and some other Central European countries work very much with the European Court of Human Rights, filing cases and facilitating procedures in Strasbourg. But then the politicians can very easily depict these as decisions imposed by judges who have not been democratically elected and know nothing about the situation in this or that country.Actually, it also happens in some Western European countries, and, in particular, the United Kingdom, where you can see quite a lot of opposition of this type to the European Court of Human Rights. And, I guess, Russian debate of the European Convention of Human Rights also has some of these features. Back to the human rights movement: I think, ideally the strategy of the human rights movement should be less focused on legalistic-only activities; rather, it should assume a much larger component of the public education, such as democracy education, citizenship education, including human rights values. It is easier said than done though. This requires a very different type of work and organisation. If you want to work with the European Court, you need an office with a number of good lawyers, and this allows you to make a lot of good things. If you want to change the human rights culture in your society, then you need many more people, or a lot more money, or media representation, or a combination of all that.

My hypothesis would be that first of all you need some other language to talk to people. I don’t know which one, but wasn’t the Brexit vote at least in part caused by a kind of offence, or backlash by the ordinary people against what they see as the European bureaucratic establishment? Doesn’t this mean that something has to be done about the way human rights activists talk to those who do not belong to minorities or discriminated groups?
I agree that there there’s an issue of language, and to some extent it has to do with these legalistic strategies. However, to some extent it also has to do with the major development of the European Union across past the 20-25 years, i.e. introduction of a much more free-market economy than we had before. This is true, of course, for the former Communist countries, but it is also true for the Western European countries that were much more influenced by social-democratic policies than they are now. So feelings of social and economic insecurity have increased, people fear that their way of life threatened. This is linked to what I’ve said before about socio-economic rights. And this is one of the reasons why we think that socio-economic rights should play a more prominent role in the agendas of human rights organisations. They are directly related to the day-to-day concerns of ordinary people. We have to show that human rights are not a concept useful only for discriminated minorities, such as LGBT people and migrants (though they are essential for these groups); we also have to offer something to the majority of the population affected primarily by socio-economic insecurity. The question is, whether there is a human rights answer to this insecurity? Exploring the possibilities of campaigns for labour security, for better regulation of housing, including social housing, needs to become one of the human rights groups’ priorities.

There’s a recent paper about human rights in the Netherlands, co-signed by the NHC and called Bringing Human Rights Home. I recognise it is a policy advice thing, so it is addressed to the government by definition. However, it is striking that it nearly equals better human rights protection with more governmental regulation and control. Don’t you think there are certain risks associated with handing over the human rights protection task to their greatest perpetrator?
Again, this is the old discussion in the human rights world. This, too, relates to the issue of socio-economic rights as human rights. One line of thought is that human rights are actually freedoms, that they are about prohibiting the government from interfering. On the other hand, for socio-economic rights you need a pro-active government to implement them. More recent thinking in human rights NGOs and also among academics is that this distinction is not as clear as it looks, and that in order to guarantee civil and political rights, you also need active government programmes. For instance, to provide for fair trial you need to invest in courts. And vice versa: free education can be arranged without necessarily having state schools; you can have accreditation systems for schools organised by parents, etc.In former Communist countries many people reject the idea that in order to ensure better human rights protection you need a more active government. Before I joined the Helsinki Committee, I had a lot of contacts in Latin America, and the general position there was quite different. The socio-economic rights get much more acceptance generally and much more attention within the NGO community. I think it is important for the European human rights movement to have this type of discussion, rather than automatically rejecting the idea of a more active governmental involvement.In this paper we criticice the government for abandoning responsibility for a lot of issues. For example, there have been certain arrangements for social security on the national level. Now they’re being decentralised to municipal level, and in such a way that it is now unclear who has the real responsibility. Also, legal responsibility of municipal authorities for compliance with international human rights standards is less clear.

What do European human rights groups do in regard to massive human rights violations in countries like Russia? Liudmila Alekseeva claimed long ago, at the beginnings of the Helsinki movement, that the Norwegian Helsinki committee had been exerting pressure over the Norwegian government so that they, in turn, exerted it over the Soviet Union. Does something like this happen now?
This is the basic working model for most human rights NGOs in Western countries, such as Amnesty International or Human Rights Watch. This has been successful for quite some time. But things have changed since 1970s or 80s. The important precondition for this model to work well is the real possibility to exert pressure. In other words, this model is based on economic and political dominance of the West over the rest of the world. This dominance has been decreasing and continues to decrease, so now the model can only work in a less perfect way. The type of pressure you are talking about is still exerted, or at least tried, but I don’t think one may say that the impact is tangible. Frankly, I don’t think it had much effect on the Soviet Union, either.It is important not to limit this pressure to explicit human rights policy. You also need to show this commitment to our values in the arenas that lie outside designated human rights field. To give an example, during Putin’s visit to the Netherlands a couple of years ago within the framework of the Netherlands-Russia year of cultural exchange, the venue of the opening ceremony and Putin’s discussions with our ministers was full of demonstrators. Thousands came to protest Russian human rights violations, homophobic laws, etc., so the place was full of banners, people were making big noise, and it seemed the message to Putin was clear. But at the same time in another location in Amsterdam there was a big business meeting with the participation of prominent Russian and Dutch economic leaders, where the Minister for Foreign Trade gave a speech. The number of protesters outside that venue was zero. I’m afraid the overall message that the Russian delegation received at the end, was: “You know, there are some weird people obsessed with their human rights or LGBT nonsense, but what really matters is still business as usual.” This is not a very good outcome. We need to build up broader coalitions with the participation of trade unions, environmental groups, and many other types of groups outside the traditional human rights arena.

Is there a role that the Dutch human rights organisations could play – or are maybe already playing – regarding the MH-17 investigation and making those responsible for this strike to answer for what they’ve done?
I believe that all steps that need to and can be taken are actually being taken by the investigation. The Dutch prosecution office has been rather slow, but this is because they thoroughly check every bit of information and because there are international procedures for this type of investigation that specify that each country involved should be given a chance to provide feedback and additional input of information. Now they are saying that by the end of the year they will produce the list of individuals who, in their view, should be prosecuted, and then the question will be whether the prosecution is feasible. Presumably these will be individuals who are in Russia, and likely include Russian nationals, which makes the immediate prospect of the trial somewhat doubtful.The International Criminal Court is already doing some kind of pre-investigation of the general situation in Donbass region, which they can conduct on the basis of acceptance by Ukraine. This means that alleged war crimes by the people fighting on the Ukrainian side can also be investigated and prosecuted by the ICC, so the question is what Ukraine will do. In any case, the ICC involvement is not a one-sided anti-Russian thing. It is now pretty clear that Russia is directly involved, but the wider picture of violations in Donbass that can be covered by the ICC will also include acts committed by the Ukrainian side.

Can something be done to ease the prospects for the political refugees from Russia and other authoritarian countries to get asylum in the Netherlands?
Not in this general way that you are saying. There are documents by the Foreign Ministry and the Immigration Office about the human rights violations around the world, including Russia, that from the basis for the interviews and assessment of the claims for asylum. And the general picture is that the authorities are very tough in trying to discover any discrepancies in what the asylum seekers say. So the rejection rate is high, either because the officials believe the applicants produce incorrect information, or because they are not convinced the dangers in the applicants’ countries are that great. It is correct that the Netherlands one of the countries with a harsh line towards political refugees compared to most other West European countries. Only with the Syrian refuges last year an exception was made, with many people quickly being given a residence status. But now they are back to the old strictness again. This strictness is indiscriminate, it concerns not just Russian applicants.And I think this issue should be more thoroughly addressed by the human rights NGOs than it is now. In theory the Netherlands accepted all required codes, rules and procedures, but in practice its standards of evidence are so high that most applicants are never able to meet them. The main refugee assistance organisation, the Refugee Council, focuses mostly on refugees who have already received their permits to stay in the country, but it also provides great help during the process of the asylum application, such as preparing them for the interviews, getting good lawyers, etc. But they work within the confines of the existing harsh policy; groups challenging the policy itself are few, small and radical to the extent that some of them even request abolishing any asylum policy altogether and welcoming everyone to the country. The mainstream of the discussion in politics and society is, however, more about making the current approach even stricter than about relaxing it.

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