OHCHR: The case for a human rights approach to the rule of law in the European Union

Report published by the United Nations Human Rights Regional Office for Europe, May 2020


Respect for the rule of law is declining worldwide – a persistent trend evident even in established democracies. For the third year in a row, the World Justice Project Rule of Law Index1  shows more countries with declining respect than countries with improving respect for the rule of law. Under international human rights law, the responsibility to ensure respect for the rule of law lies with each Member State of the United Nations (UN) as dutybearer under international law.

The proposed Action Plan on Human Rights and Democracy 2020-2024 of the European Union (EU) identifies the rule of law as the cornerstone of societal cohesion, solidarity and trust, both between the State and citizens, and among citizens.

Consequently, support for the rule of law in partner countries is prioritized. Within the EU, challenges to the rule of law have centered on the independence of the judicial process, weakened courts, an increasing use of executive ordinances, or repeated attacks by one branch of the State on another.  Principles such as the separation of powers, cooperation amongst institutions, and respect for the opposition seem to have been undermined. The European Commission has further pointed to high-level corruption, abuse of office, and attempts to diminish pluralism and to weaken essential watchdogs, such as civil society and independent media, as warning signs for threats to the rule of law.4  Executive measures taken in response to the COVID-19 pandemic further risk endangering the rule of law and have, in some cases, already done so.

 The EU has several tools at its disposal to protect and promote the rule of law in its member States. Recently, various new proposals have been put forward. In her political guidelines, Ursula von der Leyen, the new President of the European Commission, has committed to an additional comprehensive European rule of law mechanism with an EU-wide scope, as well as an objective annual reporting process by the European Commission.  As a result, the first annual Rule of Law Report has become one of the major initiatives of the Commission’s Work Programme for 2020. It is intended to act as a preventive tool, deepening dialogue and joint awareness of rule of law issues.

In this paper, the UN Human Rights Regional Office for Europe analyzes how the mechanisms, procedures and findings of the international human rights system could meaningfully bolster existing and proposed EU efforts to safeguard the rule of law in its member States. The paper then zooms in on the new EU Rule of Law Review initiative,  proposed in the European Commission’s Blueprint for Action,  which entails the preparation of an annual Rule of Law Report by the European Commission summarizing the situation in all EU member States. The initiative’s objective is to inform the dialogue with – and within – the European Parliament and the Council of the EU.

The paper articulates how international human rights law – and the mechanisms designed to monitor and assess State compliance and guide States towards continuous progress – can provide direction for the scope, content and methodology of the European Commission’s annual report. To situate the rule of law discussion in the broader international context, the next chapter addresses the international framework and the links between the rule of law, human rights and democracy.