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Dîner de gala Ombudsman – Médiateur Fédéral

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Mon discours prononcé ce mardi soir au dîner de gala organisé à l’occasion de la Conférence européenne de l’Institut International de l’Ombudsman et du 20 ème anniversaire du médiateur fédéral:

Defending Human Rights is at the core of Belgian Foreign Policy

This year, the Universal Declaration of Human Rights, which all UN member states have signed up to, celebrates its 70th anniversary. Following the Second World War and the establishment of the United Nations, the international community decided to strengthen the Charter of the United Nations by a solemn declaration guaranteeing fundamental rights to every person, under any circumstances. Drafted at the time by representatives of different geographical, legal and cultural horizons and translated into more than 500 languages, the Universal Declaration of Human Rights forms the basis of the protection of our rights and fundamental freedoms.

Belgium is a staunch defender of the universality of human rights, which are inseparable, interdependent and mutually reinforcing. These cardinal principles have always guided our action, both in our internal politics as well as on the international scene. They form the cornerstone to achieve the common goals defined by humanity, from the United Nations Charter to the Sustainable Development Goals: these fundamental rights are a prerequisite for achieving peace and development, and vice versa.

Human rights are under pressure

Unfortunately, human rights are today under pressure, more than they have been in several decades. Too often their legitimacy is questioned. Some state actors will be quick to accuse others, especially European countries, of using human rights as a political tool to apply pressure. In our very countries, fear and uncertainty about the future lead some people to be tempted by populist discourse subordinating human rights to a simplistic notion of security.

In this context, it is more than ever essential to work to make human rights a concrete reality for all our citizens. We also need to constantly reaffirm human rights on the international scene. But, in order to have the authority to call on our neighbors to respect human rights, we must do it ourselves, or at least actively strive to do it ever better. And for that we need to make full use of all the tools at our disposal, and to make sure that they function properly.

Making the mechanisms work – role of the ombudsmen

Indeed, the extraordinary feature of our modern human rights system is that they are not just a moral imperative: human rights are the object of mutual binding commitments among States. Over the years, the international community has developed complementary tools to the Universal Declaration of Human Rights, which are also at the heart of the global human rights framework.

For us in Europe, this framework is essentially two-tiered:

We participate in the global system of the United Nations, embodied in the nine international human rights conventions, the backbone of international human rights protection;

And we are part of the continental system of the Council of Europe, based on the European Charter of Human Rights.

(Quasi-) judicial bodies

Both these systems use two types of instruments to promote their implementation. The first type are judicial or quasi-judicial bodies, which can be directly accessed by citizens whose rights have been violated.

The foremost example, of course, is the European Court of Human Rights, which was set up in 1959. With more than 10.000 binding judgements delivered during six decades of its existence, the Court is one of the ultimate judicial safeguards to enforce fundamental rights. Yet we need to support it, as its authority has recently been challenged, notably by the Supreme Court of Russia, and by the refusal of certain countries to fully implement its decisions. It is also running the risk of being overwhelmed by the staggering number of complaints that are accumulating from Turkey.

At the UN level, the committees of experts under the conventions, the so-called “treaty bodies”, also have quasi-judicial powers toward the States that have accepted the optional protocols allowing their citizens to make direct complaints. I attach particular importance to their functioning and Belgium has worked actively in Geneva to support their work.

Monitoring and reporting bodies

The second type of instruments rely on monitoring and reporting to create pressure for better implementation. This is the main function of the UN treaty bodies, to whom States must submit periodic reports on how they implement the relevant conventions. Belgium attaches a lot of importance to its reporting obligation. Each time prior to the submission of a report, my department organizes a consultation with civil society and the Ombudsman, who have the opportunity to provide their input during the process.

Alongside treaty bodies, allow me to touch upon the mechanism of the ‘Universal Periodic Review’, better known as the ‘UPR’. It involves a review of the human rights records of all UN Member States by Member States, under the auspices of the Human Rights Council. This makes the UPR a quite unique peer review mechanism, designed to ensure equal treatment for every country.

In January 2016, Belgium’s human rights situation was screened during its 2nd UPR. Our human rights record was put under intense scrutiny, and while it was widely welcomed, we also received many questions and recommendations. During the preparation of this exercise, we organised – again – a consultation with the Ombudsman and civil society in order to receive preliminary suggestions and recommendations. It’s important to note that the Ombudsman and civil society also have the possibility to submit an alternative report in the run up to the review itself.

The Council of Europe also boasts a wide range of advisory and monitoring institutions, specifically geared towards the protection and promotion of human rights, like the Commissioner for Human Rights or the European Commission against Racism and Intolerance (ECRI).

Let me mention in particular the European Commission for Democracy through Law – also known as the “Venice Commission” as it meets in Venice. It is an advisory body that provides legal advice to its member states and helps states wishing to bring their legal and institutional structures into line with European human rights standards. In the past, the Venice Commission has provided specific support to the institution of the Ombudsman, by making recommendations to improve the legal framework for Ombudsman institutions and to provide guarantees for its independent and impartial operation.

National-level institutions – the ombudsman

Of course, all our countries have also established national institutions to promote human rights and in particular the implementation of our international obligations. I have already mentioned how the ombudsman acts as a crucial source of information on the actual state of human rights, pointing to concrete deficiencies, for our national reports and for the UPR.

Improving accountability and access to remedy are currently at the centre of the human rights debate. The role of ombudsmen in the field of non-judicial dispute settlement for those whose rights are violated is particularly important in this regard. Belgium underlined this, for instance, in its recently-published brochure on remedy at national level in the area of “business & human rights”, which lists the national ombudsmen and the European Ombudsman as alternative dispute resolution mechanisms.

European Union

Ladies and Gentlemen,

Let me know turn to the situation within the European Union. As you are well aware, the Commission activated the Article 7, paragraph 1 procedure against Poland in December 2017, following a very wide reform of the judiciary sector in Poland, and the publication of three recommandations who were left without answer. Since then, a dialogue has been ongoing between the European Commission and Poland, and two hearings have been organized within the Council, in order for all Member States to be able to raise questions and concerns. Belgium fully supports the Commission, and contributed to those debates. We do hope Poland will take the necessary measures in order to answer the concerns raised (for example the forced retirement of dozens of judges).

In parallel, infringement procedures have been introduced by the Commission, and we will see how the Court in Luxembourg judges the cases.

The European Parliament also activated this procedure against Hungary, and we are currently assessing the situation – so it is too early to give you more information on how this procedure will evolve.

These two examples underline that respect for rule of law has become a central theme in the European Union, and a very difficult one to tackle and discuss. The European Union, of course, is a union founded on common values of democracy, human rights and rule of law. Yet we have no good mechanism to monitor how we actually live up to our proclaimed standards. We examine each other’s budgets and economic policies constantly. But we have nothing comparable to discuss the implementation of our fundamental principles. The procedures I just described are reactive, not preventive. They can only be activated when there is a serious problem. In effect, we take the rule of law for granted. But I strongly believe that no Member State can pretend to be on the safe side. All of us have deficiencies. We need to discuss them and learn from each other.

This has brought me to propose, back in 2016, the setting-up of a peer review mechanism in the Council. The objective would be to discuss, amongst Ministers, the rule of law situation, in order to prevent situations to deteriorate and exchange views and best practices. This mechanism would be complementary to the Article 7 procedure – it wouldn’t replace it in any way.

We received the support of the European Parliament and half of the Member States for this initiative, which I would like to implement in the coming months. You, as national mediators, can all be supportive of this initiative, and even play an active role. Indeed, we are planning to draft country reports, based on recognized sources, such as the Council of Europe. Reports from national mediators could be part of those sources.

Why is this initiative important? Because the respect for fundamental rights and the rule of law are enshrined in the Treaties (Article 2, Article 6) and in the Charter of fundamental rights of the European Union. It is the common base, and the cornerstone of European integration, allowing for trust in each other judicial systems. This is also the base for a well-functioning internal market.

But it is also of the essence for our credibility on the international scene, if we want to defend Human rights worldwide. So it is my wish to progress with this initiative.

Conclusion

As a conclusion, let me underline once again that defense of Human rights and respect for rule of law are at the core of my policies, but that the challenges are huge. Defending human rights is not self-explanatory any more. Even within the European Union. So we will need to continue our work, with the active support of your institutions and the civil society.

I thank you for your attention and wish you a good evening.