Fundamental what? : the difficult relationship between foreign policy and fundamental rights

In the past years we have witnessed an increased activity in the field of EU foreign policy. In particular, following the terrorist attacks in the United States first, and in Europe later, the Union has adopted a series of measures which directly affect individuals. In some instances, those measures were aimed at implementing Security Council resolutions which imposed sanctions on named individuals and / or alleged terrorist organisations; in other cases, following the general Security Council Resolution on terrorism, the EU adopted its own measures. The ‘fight against terror’ has also led to an increased activity in the field of co-operation in the criminal sphere, and most notably in the adoption of the framework decision on terrorism and the framework decision on the arrest warrant. The increased activity in fields which affect individual rights raises important problems in relation to fundamental rights protection. In this respect, the EU shows a considerable degree of schizophrenia: on the one hand, it seeks to reassure its citizens, as well as its international partners, as to its sincere commitment to fundamental rights through the adoption of the Charter, its action in the field of discrimination, the creation of the fundamental rights agency, as well as the considerable improvements that would have been introduced by the Constitutional Treaty. On the other hand, the fundamental rights agency lacks powers in relation to co-operation in criminal matters and common and foreign security policy, the areas in which fundamental rights scrutiny would have been most needed and useful, and, generally speaking, the Union seems incapable to ensure even that minimum standard of protection required (from the Member States) by the European Convention on Human Rights. Nor should one consider this schizophrenia as simply the result of an inherent pathological condition stemming from the European Union’s institutional and constitutional structure. After all, whilst it is true that the second and third pillars are ill equipped to afford even a minimum level of democratic and judicial accountability, it is also true that action at Union level was not essential, and the Member States could have well refrained from using Union instruments until that moment in which a more healthy institutional structure had been put into place. And even should one consider that co-ordinated Member States’ action would have not been sufficient and that therefore Union activity in these fields was an absolute necessity, it should be noted that there are instances, some of which will be examined in detail below, where the Union and (some) Member States could have chosen a different path to reach the same result, whilst being more respectful of both their citizens and their own constitutional obligations. In this contribution I will analyse some of these problems. In particular, after having given a brief account of the Union’s institutional structure, I will analyse, from a fundamental rights perspective, the problems arising from the adoption of ‘terrorist lists’. In this respect it is necessary to distinguish between the Taliban list, which is of UN derivation and which does not leave any discretion to the EU as to whom should be included in the list, and the EU’s own list. The latter is further divided in two types of listing: foreign-linked alleged terrorists, and those alleged terrorists who do not have any link with outside the EU. My overall conclusion is that we are witnessing a progressive erosion of the very guarantees that were at the foundation of post-war nation states, a result which is perhaps inevitable once concepts which are inherently political, and to a certain extent subjective, such as the definition of terrorism, are transformed into objective and unquestionable legal ‘truths’ via the medium of international executive action.