Austria, the European Union and Article 2(7) of the UN Charter
February 12, 2000
The proposed coalition to form a government between Austria's People's Party and Mr. Jorg Haider's Freedom Party (FPO) sparked widespread protest and criticism within the European Union (EU) and also outside Europe. The reason for this outcry is none other than Mr. Haider's policy statement and past remarks which seem to promote xenophobia, by inter alia proposing discriminatory immigration policies, and praising Nazi practices before and during World War II. On a number of occasions Mr. Haider publicly praised as honorable men Austrian Waffen SS veterans.
After intense negotiations in the last week of January 2000, the two parties stated on 1 February that they had prepared a detailed reform program that would bring an end to thirty years of consensus politics and address worries from abroad.
The European Union's response was immediate. On 31 January the Portuguese Prime Minister, who currently holds the rotating presidency of the EU, in conjunction with the other 13 European Heads of State, made the following statement:
-Governments of XIV Member states will not promote or accept any bilateral official contacts at political level with an Austrian Government integrating the FPO;
-There will be no support in favour of Austrian candidates seeking positions in international organisations;
-Austrian Ambassadors in EU capitals will only be received at a technical level
The statement concluded by remarking that the Austrian authorities had been informed that "there would be no business as usual in the bilateral relations with a Government integrating the FPO." The next day, EU Prime Ministers continued with attacks on the basis of what they conceived to be a common European core of human rights and democratic principles. Lionel Jospin of France described the FPO as a "xenophobic, far-right group," while Massimo D'Alema of Italy stated that "Europe has certain criteria and values that unite us." The German Chancellor Gerhard Schroder, in denouncing the FPO, noted that such denunciation did not amount to interference in another country's affairs.
Similarly, the Parliament of the European Communities held an emergency debate where its members expressed their horror at the prospect of a government including elements of the FPO. The Commission of the European Communities, the watchdog and implementor of Community laws and programs, although sharing the concerns of its member states, made a statement on 2 February by which it noted that at the present stage, Austria's relations with the EU were not affected. In more pragmatic fashion, and perhaps because of the Commission's surprise as to how the issue had developed without itself being consulted beforehand, it vowed to punish any breach of individual or minority rights, but only when such rights had been violated.
Under such intense external pressure, and against all expectations, on 3 February a coalition government was formed in Austria with the FPO receiving six of ten full ministerial posts, including finance, defense, justice and social affairs. In a joint declaration the two party leaders accepted Austria's responsibility arising from the tragic events of World War II and vowed to uphold democratic principles and respect for human rights. Nonetheless, in the evening of 3 February the Portuguese Prime Minister reiterated his earlier position and noted that the above measures would take effect from that day. He did not, however, espouse the warning of the European Parliament to Austria to the effect that its membership in the EU could be suspended.
Already, the severing of bilateral relations has been heeded not only by European but also other states, and in some cases by non-state entities. A substantial number of official visits to Austria have been cancelled, the Dutch Bank ABN Amro declared that it was freezing its offer to help finance a controversial child support program in Mr. Haider's home province, and Israel recalled its Ambassador from Vienna. It is clear, nonetheless, that Austrian representatives will not be excluded from multilateral proceedings. It is further speculated that this quarantine may in fact be lifted if Austria demonstrates firm guarantees of adherence to democratic rule and human rights norms.
The radical restructuring of the European Communities in the last decade has raised concerns as to the efficacy of its centralized policy-making in diverse fields such as farming, defense, external relations and monetary union to name but a few. Any rupture in this system would have overarching repercussions in all policy fields and would jeopardize a future enlargement of the Union. The European Union is firmly committed to respect and promotion of human rights and democracy not only within its own confines, but also as a matter of its Common Foreign and Security Policy (CFSP). This is rooted in articles F and J.1 of the Treaty on European Union 1992 (TEU), and reaffirmed in articles J.1 and K.1 of the Amsterdam Treaty 1998. Article K.1 of the latter Treaty makes particular reference to the combating of racism and xenophobia.
European states recently built on previous commitments regarding human rights and democracy within the framework of the Organisation for Security and Co-operation in Europe (OSCE), by making special reference to the eradication of "aggressive nationalism, racism, chauvinism, xenophobia and anti-Semitism." This was unanimously proclaimed in article 19 of the OSCE's Istanbul Charter for European Security, agreed in November 1999.
Despite such commitments to democracy and human rights, the issue still remains whether or not international reaction to the form of the Austrian government constitutes interference in the domestic affairs of this country. Although article 2(7) of the UN Charter precludes intervention in the domestic affairs of other states by the UN Organization, it is strongly argued that cases of gross human rights violations are beyond the ambit of article 2(7). This was confirmed for example during the drafting of Security Council Resolution 688 of 1991 concerning the plight of the Kurds in Iraq at the end of the Gulf crisis. In the present case, it is not the United Nations taking action, but a regional organization against one of its members. There is nothing in the relevant European treaties suggesting a right of intervention as a preventive measure in the formation of any government contrary to democratic principles. An action on this basis could only be brought by the Commission or any individual member state under articles 226 and 227 of the EC Treaty, and then only if it was deemed that a particular treaty obligation had been violated by Austria. Such a situation would materialize if the Austrian government subsequently adopted legislation or imposed measures with a xenophobic, racist or undemocratic character.
Beyond the dictates of UN Charter article 2(7) and the absence of its equivalent in EU law, it may seem anomalous if the EU were to advance and promote democracy and human rights at a global level when it retained a racist and xenophobic force within its midst. It is perhaps possible that at an EU level we are witnessing the emergence of a customary obligation of democratic governance. Such an obligation is assumed by a state's membership in the European Union. In fact, Austrian reaction so far has not centered on dismissing its European partners' "interventionist" stance. Instead, it has tried to convince them of Austria's democratic aspirations.
W. M. Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 AJIL 866 (1990)
T. Franck, The Emerging Right to Democratic Governance, 86 AJIL 46 (1992)
P. Craig & G. De Burca, EC Law, Texts Cases and Materials, Oxford University Press (1998)
Portuguese Presidency website <http://www.presidenciarepublica.pt/en/main.html>
About the Author:
Ilias Bantekas is a Senior Lecturer and Director, International Law Centre, School of Law, University of Westminster. He is co-author of a forthcoming treatise on International Criminal Law.