Can The EU Protect Human Rights and Democratic Values in its Member States by Means of Financial Sanctions?

Can The EU Protect Human Rights and Democratic Values in its Member States by Means of Financial Sanctions?

Author: Jade MacEwan

The European Union’s Equality Commissioner, Helena Dalli, announced on 28 July that six Polish cities had been refused grants under a twinning programme due to their anti-LGBT+ rights stance. The six cities had adopted resolutions declaring themselves to be “LGBT-free zones” or “zones free of LGBT+ ideology”, or had adopted so-called “family rights” resolutions which oppose rights for LGBT+ people. Their applications were rejected as the cities did not fulfill the criteria required for these grants of “equal access and non-discrimination” (Euronews, 2020).

“Human dignity, freedom, democracy, equality, the rule of law, and respect for human rights, including the rights of persons belonging to minorities, are fundamental EU values. These principles must be applied transversally to all EU funding,” Helena Dalli said, in a statement to Politico regarding the rejection of funding. (Politico, 2020).

Political campaign against LGBT + people in Poland

Since the ruling PiS, or Law and Justice Party, was first elected in 2015, they have shown increasing disregard for LGBT+ rights and have used homophobic rhetoric against the LGBT+ community. The President of Poland, Andrzej Duda, was recently re-elected with a narrow majority on an anti-LGBT+ platform, pledging to “defend children from LGBT ideology” and refusing to support same-sex marriage or adoption, also describing such equal rights policies as part of a “foreign ideology” (The Guardian, 2020). PiS has compared LGBT+ people to an “ideology” in an attempt to make their discrimination of LGBT+ people appear to the electorate as an ideological defense of the Polish nation against a “foreign import” (Balkan Insight, 2020).

The Law and Justice Party’s campaign against LGBT+ people has been particularly strong since last summer, when regional party officials began to declare cities and districts in the south-east of Poland “LGBT-free zones”, or zones which are declared to be “free of LGBT ideology”. Some of the declarations were mainly symbolic, and did not translate into policy, but they sent out a very clear message to LGBT+ people that they were not welcome in these cities (The Independent, 2019). Other declarations, particularly the “family rights resolutions”, which promote marriage solely between a man and a woman, have an effect on areas such as the school curricula, and give control to parents over NGO projects financed by the local council in schools. A local ombudsman for families can also be appointed in some local councils, who can ban funding for organisations who they deem as causing “harm [to] the value of family and marriage”. This means that such organisations will no longer be able to provide educational and awareness projects or to use public property (Balkan Insight, 2020). These declarations started after the Mayor of Warsaw, Rafał Trzaskowski, signed a city charter pledging to support LGBT+ people.  Around one-third of Poland is now covered by so-called “LGBT-free zones”, which can be viewed on the map “Atlas of Hate” (https://atlasnienawisci.pl/) (Politico, 2020).

The funding withheld from the six cities was a relatively small amount, between €5,000 and €25,000, but the act of withholding funds on the basis of discriminatory attitudes towards LGBT+ people conveys some symbolic weight. Ola Kaczorek, co-president of Stowarzyszenie Miłość Nie Wyklucza [the Love Does Not Exclude association] said, “we feel seen, and we know we’re not alone and that means a lot”, while Bartosz Staszewski, board member of the Lublin Pride association explained, “we cannot count on our government, we cannot count on our president, the only thing we can count on is the European Union”. While Staszewski is hopeful that the rejection of funding will serve as a warning to Poland, he would also like the EU to do more and take greater action in the future (Thomson Reuters Foundation, 2020).

Questions regarding economic sanctions

Attitudes in the EU appear to be hardening towards Poland. France’s European affairs minister, Clement Beaune, has announced that Paris would call for strong rules with regard to the EU’s €750 billion coronavirus recovery fund, so that countries which do not respect democracy and equal rights would be prohibited from receiving aid. Beaune’s statement came after a Dutch court expressed concern as to whether Poland’s legal system is independent of the government and parliament, calling into question whether Poland can currently be considered a democratic state. The European Commission has already attempted infringement proceedings against Poland for violations of EU law under Article 7 of the Treaty of Europe, due to judicial reforms giving the Polish government power over the judiciary, but the proceedings came to a standstill as they require broad support from all 27 EU countries. (The Irish Times, 2020).

Article 7 is the main instrument that can be used by the EU against violations of democracy by member states. It includes powers to suspend “certain [membership] rights” of a member state and sanctions such as withholding funds from the EU budget. However, Article 7 is difficult to implement due to the fact that an agreement is required by a large majority of member states (a unanimous agreement minus one in the European Council, and a two-thirds majority in European Parliament). As both Hungary and Poland are in violation of democracy and human rights, neither country would support the EU in bringing Article 7 proceedings against the other, as had already previously been expressed by the Hungarian Prime Minister, Viktor Orbán (Sedelmeier, 2017).

There are also limits as to what can be achieved against the backsliding of democracy and equal rights in member states by implementing Article 7 and by imposing financial sanctions on or withholding funding from member states. Governments which use authoritarian practices and attack human rights generally do so in order to maintain power, and such governments will continue to act illiberally for this reason, even if it means that they will not be admitted into the EU (Sedelmeier, 2017). Turkey, for example, has long been a candidate for EU membership, but concerns over human rights and the state of democracy in this country have meant that Turkey still remains outside the EU (The Independent, 2018). Therefore, even the threat of expulsion from the EU may not convince such governments to become more democratic and respect human rights, and withholding funds may not have such a strong effect. Such sanctions may also be used by these governments to create anti-EU sentiment in voters, by blaming economic hardships on these sanctions and making the EU a scapegoat for problems caused by government policy (Sedelmeier, 2017). Denying a member state access to funds could also undermine the idea of EU solidarity and undermine the position of the EU with European countries outside the EU, particularly if such countries already have sympathy with the government being sanctioned (DW, 2019).

If financial sanctions are used, it must be kept in mind that withholding funding may be harmful to the citizens of the country in question. Therefore, these sanctions should be applied in such a way that they do not negatively affect the citizens. As well as minimising harm towards the population, this also removes the opportunity for the government to accuse the EU of being responsible for any economic hardships the citizens are facing. For example, the EU could redirect funding towards the communities, institutions and organisations which need it, bypassing the government and other illiberal actors such as local governments in “LGBT+ free zones” (Fournier, 2019). This would show support for citizens, in particular those under threat such as the LGBT+ community, while penalising the governments of member states which violate human rights.

Financial action, with redirecting of funding, was taken against Uganda due to their stance against LGBT+ rights in 2014, when a $90 million loan was withheld by the World Bank after Uganda strengthened its anti-gay laws to criminalise the so-called “promotion of homosexuality” and to introduce life imprisonment as a sentence for gay sex. The World Bank stated that it was necessary to postpone the project due to the effect such discrimination may have on their projects and their LGBT+ staff members and to review the effect the new law would have on development objectives. Donors such as Norway and Denmark instead decided to direct funding towards aid agencies and withhold it from the Ugandan government. The President of the World Bank, Jim Yong Kim, warned that laws restricting the rights of LGBT+ people “can hurt a country’s competitiveness by discouraging multinational companies from investing or locating their activities in those nations” (BBC, 2014). As has already been stated at the beginning, it can already be seen that some actors in Europe are seeking to distance themselves from Poland due to discrimination against LGBT+ people and human rights violations. For example, the French town of Saint-Jean-de-Braye decided to end “official relations” with their twin town of Tuchów on this basis (Euronews, 2020).

It is unclear as to whether the threat of financial sanctions would have a great impact on convincing the Polish government to reverse their anti-LGBT+ policies and to stop the backsliding of democracy in this country, due to the difficulty of imposing actual sanctions, especially with Hungary’s refusal to support them, and due to the ideological nature of this backslide (Fournier, 2019). The Polish government has already decided to fund one of the towns which was rejected for funding itself, and justice minister Zbigniew Ziobro has promised to find and support other “LGBT-free zones” which have lost EU funding. Therefore it would appear that the Polish government is willing pay the costs of replacing EU funding to support their anti-LGBT+ policies rather than to back down due to financial sanctions (Pink News, 2020). However, if the EU does not act, this would allow regimes such as Poland and Hungary the freedom to continue to reject EU values and to discriminate against minority groups as they wish. As the “LGBT-free zones” are official declarations which have been approved by local bodies of administration, these can be viewed as tolerated, and even supported, by the EU member state to which those bodies belong. Therefore, by allowing such declarations, the member state is in violation of EU law, meaning that the EU must take action. Localised sanctions such as the refusal to grant funds to “LGBT+ free zones” and EU funding for local institutions working for an improvement in rights do send a clear message that such a rejection of human rights cannot be tolerated and show support for those who are suffering discrimination due to anti-LGBT+ policies.

Other approaches could also be considered in addition to financial sanctions if these countries continue to disrespect human rights and EU values. Networks such as the European Ombudsman and European media directly targeted towards the citizens of such countries could be used to inform and engage local organisations and the general population. Funding, information and support could be given to the judiciary systems, and more radical options have also been suggested, for example, the removal of rights such as inclusion in the Schengen zone (Fournier, 2019). While Poland may refuse to stop discriminating against LGBT+ people on the basis of financial sanctions alone, pressure using other approaches in addition to such sanctions may have an effect.


Links to Resources

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