Wednesday, 4 February 2009

EU Law: Humanitarian aid & Lisbon Treaty implementation

The European Community (European Union) is an important actor on the world stage as a donor of humanitarian aid, but legally these measures are taken on the basis of Title XX on development cooperation of the Treaty establishing the European Community (TEC).

In principle, development cooperation is geared towards long term programmes and solutions. Humanitarian aid needs often arise suddenly, following armed conflicts, droughts or natural disasters, although sadly the need for humanitarian aid can continue for ages if the causes cannot be solved, with many refugee situations as a reminder.

The Lisbon Treaty would give humanitarian aid a new legal base and it would lead to the establishment of a European Voluntary Humanitarian Aid Corps (EVHAC).

We look at the history and contents of the new provision on humanitarian aid.

The possible entry into force of the Treaty of Lisbon is drawing closer. Preparatory work is needed to put many of the treaty provisions into practice, so the Council should start publishing drafts and reports for public debate. The Commission could set a good example in preparing implementation in its areas of competence.


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European Convention

Against this background the European Convention proposed a new Section 3 on humanitarian aid with an Article III-223 as the specific legal base for ad hoc assistance, relief and protection for people in third countries and victims of natural or man-made disasters, in order to meet the humanitarian needs resulting from these different situations (OJEU 18.7.2003 C 1169/72).


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Constitutional Treaty

The intergovernmental conference (IGC 2004) adopted the proposal by the Convention in Article III-321 of the Treaty establishing a Constitution for Europe (OJEU 16.12.2004 C 310).


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Original Lisbon Treaty

The intergovernmental conference (IGC 2007) took over the provision of the Constitutional Treaty in the form of an amendment to the TEC. Article 2 , point 168 of the original Treaty of Lisbon (ToL) inserted a new Chapter 3 and a new Article 188j into the Treaty on the Functioning of the European Union (OJEU 17.12.2007 C 306/95–96):


HUMANITARIAN AID

168) The following new Chapter 3 and new Article 188 J shall be inserted:

‘CHAPTER 3
HUMANITARIAN AID

Article 188 J

1. The Union's operations in the field of humanitarian aid shall be conducted within the framework of the principles and objectives of the external action of the Union. Such operations shall be intended to provide ad hoc assistance and relief and protection for people in third countries who are victims of natural or man-made disasters, in order to meet the humanitarian needs resulting from these different situations. The Union's measures and those of the Member States shall complement and reinforce each other.

2. Humanitarian aid operations shall be conducted in compliance with the principles of international law and with the principles of impartiality, neutrality and non-discrimination.

3. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures defining the framework within which the Union's humanitarian aid operations shall be implemented.

4. The Union may conclude with third countries and competent international organisations any agreement helping to achieve the objectives referred to in paragraph 1 and in Article 10 A of the Treaty on European Union.

The first subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude agreements.

5. In order to establish a framework for joint contributions from young Europeans to the humanitarian aid operations of the Union, a European Voluntary Humanitarian Aid Corps shall be set up. The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall determine the rules and procedures for the operation of the Corps.

6. The Commission may take any useful initiative to promote coordination between actions of the Union and those of the Member States, in order to enhance the efficiency and complementarity of Union and national humanitarian aid measures.

7. The Union shall ensure that its humanitarian aid operations are coordinated and consistent with those of international organisations and bodies, in particular those forming part of the United Nations system.’.


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Consolidated Lisbon Treaty

Because of the small variations, I left the fairly long texts of the draft Constitution and the Constitutional Treaty for interested readers to fetch on their own, but because the consolidated Treaty of Lisbon is the final version in a manner of speaking, the reference if the treaty enters into force, I present it here with the Article and certain references renumbered (OJEU 9.5.2008 c 115/143):


CHAPTER 3
HUMANITARIAN AID

Article 214 TFEU

1. The Union's operations in the field of humanitarian aid shall be conducted within the framework of the principles and objectives of the external action of the Union. Such operations shall be intended to provide ad hoc assistance and relief and protection for people in third countries who are victims of natural or man-made disasters, in order to meet the humanitarian needs resulting from these different situations. The Union's measures and those of the Member States shall complement and reinforce each other.

2. Humanitarian aid operations shall be conducted in compliance with the principles of international law and with the principles of impartiality, neutrality and non-discrimination.

3. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures defining the framework within which the Union's humanitarian aid operations shall be implemented.

4. The Union may conclude with third countries and competent international organisations any agreement helping to achieve the objectives referred to in paragraph 1 and in Article 21 of the Treaty on European Union.

The first subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude agreements.

5. In order to establish a framework for joint contributions from young Europeans to the humanitarian aid operations of the Union, a European Voluntary Humanitarian Aid Corps shall be set up. The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall determine the rules and procedures for the operation of the Corps.

6. The Commission may take any useful initiative to promote coordination between actions of the Union and those of the Member States, in order to enhance the efficiency and complementarity of Union and national humanitarian aid measures.

7. The Union shall ensure that its humanitarian aid operations are coordinated and consistent with those of international organisations and bodies, in particular those forming part of the United Nations system.


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Comments

The new Article on humanitarian aid would give the European Union a distinct legal base.

The guiding principles for humanitarian aid would be the same as for the European Union’s external action in general, found in Chapter 1 of Title V of the amended Treaty on European Union (Articles 21 and 22).

Specifically, humanitarian aid actions would be guided by international law, impartiality, neutrality and non-discrimination 8paragraph 2).

The legal framework for humanitarian aid would still be taken according to the co-decision procedure, renamed the ordinary legislative procedure.

The net has been cast wide with regard to international agreements.

The European Voluntary Humanitarian Aid Corps is clearly aimed at mobilising idealistic young Europeans in aid work.

Coordination between the European Union and the member states is clearly needed because of the shared competence, as are efforts to coordinate with UN and other organisations.

In my view, taking into account the over all length of Article 214 TFEU, it would hardly have been amiss to include a few words on the role of non-governmental organisations (NGO).


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Competence

Along with development cooperation, humanitarian aid belongs to the sub-category shared competence ‘light’ or shared competence ‘minus’ mentioned in Article 4(4) TFEU:

4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.


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Summaries of legislation

For summaries of legislation you can turn to the Commission’s Scadplus web page Humanitarian aid, with links to relevant topics:

http://europa.eu/scadplus/leg/en/s05010.htm


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Council Regulation 1257/96

The consolidated version of Council Regulation (EC) No 1257/96 of 20 June 1996 concerning humanitarian aid is found here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1996R1257:20031120:EN:PDF


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ECHO

The Commission’s Humanitarian aid department (ECHO) is the source for humanitarian aid action:

http://ec.europa.eu/echo/index_en.htm


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European Voluntary Humanitarian Aid Corps (EVHAC)

As far as I see, the Commission (ECHO) has commissioned a few studies on setting up EVHAC, but the material seems to have been taken down from the ECHO/Commission web pages.

Interested readers may find the studies or references to them from NGOs and research institutions.

If the Treaty of Lisbon enters into force, EVHAC is going to be set up in some form.


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Implementing the Lisbon Treaty

Regardless of different opinions about the Lisbon Treaty, many questions have to be prepared for implementation, should the amending treaty enter into force (as 27 governments have agreed and 25 national parliaments approved).

Most of these issues are driven by the member states (the Council), but there has been a deafening silence for a long time.

Irrespective of the perceived immaturity of public opinion, the Council must start publishing regular and comprehensive updates of its preparatory work, with reasons, for public debate. Only thus can its professed commitment to the principles of transparency and openness.

Where the Commission has a leading role to play in preparing proposals, it should set a good example by preparing and consulting. These proposals should be added as a thematic whole to the web pages about the Treaty of Lisbon, in order to make them visible and easy to find.

EVHAC is one of the questions where the Commission has the role of an initiator.


Ralf Grahn