What Happens Next? Looking Into Enforcement Solutions Over Hungary’s Human Rights Abuses

[Todd Carney is a student at Harvard Law School. He holds a Bachelor’s degree in Political Science and Public Communications. He has also worked in digital media in New York City and Washington D.C.]

In September 2018, the European Union (EU) Parliament voted to censure Hungary in response to Hungary’s laws that cracked down on institutions such as the media, independent government agencies and non-governmental organizations (NGOs). After which, the EU heads of state were tasked with having to unanimously vote on Hungary’s punishment. However, in the 10 months since the parliament’s vote, there has been no decision on the punishment. This is in part due to Hungary’s ally Poland vowing to veto any punishment against Hungary. This has left the EU without any options to hold Hungary accountable. An analysis of International Law shows that the same issues exist on the international plane in terms of holding Hungary accountable for its human rights abuses.

Attempted EU Remedies

Shortly after current Hungarian Prime Minster Viktor’s Orbán’s election in 2010, Orbán began cracking down on the independence of other branches of the Hungarian government. In 2012, the European Commission (EC) sued Hungary in the Court of Justice of the European Union (ECJ) over Orbán’s party, Fidesz, passing legislation to remove an independent government official. In 2014, the ECJ ruled in the EC’s favor, but Hungary did not change.

Hungary faced further legal issues in 2015 when Orbán shut down Hungary’s borders in response to calls from Germany for EU nations to let in more migrants. In response, in 2017 the EC brought an “infringement procedure” against Hungary on the basis that Hungary violated their EU obligations by refusing the EC’s order to let in more refugees. The ECJ ruled Hungary needed to put forth a justification for their policy. Hungary never provided this justification.

In June 2018 Fidesz passed a law known as the “Stop Soros” law, which made it illegal to help undocumented immigrants. The bill was named after billionaire George Soros, who Fidesz believed wanted to use migrants to erase Hungary’s Christian heritage. The law was written extremely vague in terms of identifying what counted as a violation of the law, so it left open the possibility that someone could get arrested for as little as giving water to an undocumented migrant. Additionally, the law’s vagueness threatened pro-migrant NGOs’ ability to remain open by potentially criminalizing any aid the NGOs could give to undocumented immigrants.

The “Stop Soros” law was the final straw for EU leaders. In September 2018, the EU Parliament enacted “Article 7 of the Treaty on European Union” to vote to censure Hungary for its anti-democratic policies. The punishment from the censure could be anything from sanctions to suspending Hungary’s EU membership. The EU would likely start with sanctions, however because all EU heads of states, besides Hungary, have to agree on a punishment and Poland opposes all penalties for Hungary, the EU cannot take any action.

Amid the standstill, the EU has renewed other mechanisms to try to get Hungary to change its laws. In May, the Council of Europe’s Commissioner for Human Rights released a report decrying the treatment of migrants in Hungary and called on Hungary to change its policies. However, no changes have come since the report’s release.

Attempted Enforcement Through International Law

Given that Orbán’s human rights abuses have escaped accountability within Hungary and the EU, it is important to look at means of accountability through International Law. There is overwhelming evidence that the “Stop Soros” law alone violates International Law. Hungary is a member of the International Covenant on Civil and Political Rights (ICCPR). The United Nations’s (UN’s) Office for Democratic Institutions and Human Rights (ODIHR) found the “Stop Soros” law violated several articles of the ICCPR. The ODIHR found that the law’s prohibition of associating with anyone who aids migrants, violated the “freedom of association” found in Articles 11, 22 and 26 of the ICCPR. Moreover, the ODIHR argued that the bill’s broad ban on freedom of sharing information violated the requirement of specifying any limits on freedoms guaranteed by the ICCPR, which is found in Article 19(2) of the ICCPR.

The main organization in charge of monitoring implementation of the ICCPR is the UN’s Human Rights Committee (HRC). However, there is little the HRC can do when it finds a violation of the ICCPR. The HRC regularly compiles a report on the state of human rights in an ICCPR member nation. If the HRC finds a violation, it can only voice concerns, it cannot levy any punishments. In May 2018, while Hungary was considering the “Stop Soros” law, the HRC conducted its latest report on Hungary and specifically said the “Stop Soros” law would violate the ICCPR. Hungary ignored these concerns and passed the bill. The HRC will eventually release another report that will probably condemn the state of human rights in Hungary, but just as the Council of Europe’s report, this future HRC report will likely fail to create any change.

The HRC can also mandate an inquiry into a country’s human rights policies. The inquiry comes when a country, individual, or non-government organization submits a complaint against the country to the HRC. In September 2018, the HRC organized a team of experts to look into the effects of Hungary’s “Stop Soros” law. The experts said the new law created “hostility, xenophobia, and discrimination against migrants, asylum seekers, refugees and all those trying to provide them support.” Though this inquiry led to further condemnation, it had no real effect in terms of punishing Hungary or causing Hungary to repeal the “Stop Soros” law.

Remaining Options

Given that the EU has no enforcement options against Hungary and the HRC enforcement mechanisms have failed, the most logical step would be for the UN to enact sanctions. Over the last 50 years, the UN has enacted sanctions against 30 regimes. Currently, there are 14 regimes under UN sanctions.

To start the sanction process, a member of the UN Security Council must propose the sanctions to the Security Council. In order for the sanctions to pass, nine of the fifteen members of the UN Security Council must support the sanctions and the sanctions cannot be vetoed by any of the five permanent member nations of the Security Council. The five permanent member nations’ veto power creates an issue for sanctions against Hungary because one of the permanent members is Russia, who has developed a close relationship with Hungary. Russia has vetoed sanctions against Syria because of Russia’s strategic interests in Syria, so it is likely Russia would do the same with Hungary.

Additionally, it is debatable if the situation in Hungary has risen to a level that warrants UN sanctions. Though there are clear human rights abuses in Hungary, UN sanctions have typically revolved around armed conflict or acts of violence, such as Libya being involved in the Lockerbie bombing or the former Yugoslavia committing war crimes. Furthermore, while there is no clear definition of what actions qualify for UN sanctions, Article 39 of Chapter VII of the UN Charter gives the Security Council the power to enact sanctions when there is a “threat to the peace, breach of peace, or act of agression,” many would likely associate this language with acts of violence.

On the other hand, some might consider the violations of human rights in Hungary similar to the human rights abuses in South Africa that led to UN sanctions against South Africa. Though the government of South Africa committed violence during the apartheid era, the rationale for the sancitons focused on South Africa’s discriminatory policies and its limits on freedom of expression. As noted above, Hungarys violation of the ICCPR concerns the government’s surpression of the freedom of expression and its discriminatory treatment of migrants.

Alternatively, the US could enact unilateral sanctions against Hungary. In May, the Wall Street Journal reported that the US was considering sanctions against Hungary over its failure to meet NATO financial contribution obligations. However, US President Donald Trump has expressed a desire to work with Orbán, making many doubt that sanctions will occur anytime soon. Furthermore, the possible US sanctions would focus on Hungary’s NATO commitments, rather than Hungary’s human rights abuses. It is unlikely that the Trump administration would want to punish Hungary over cracking down on George Soros and undocumented immigrants, given Trump’s views on those subjects.

What Happens Next?

Hungary has violated EU law and International Law, yet all avenues of enforcement for these violations are tied up by rogue actors like Russia and Poland. Additionally, EU leaders and the US remain concerned about isolating Hungary to the point that Hungary turns away from NATO and the EU and then joins with Russia and China. Though this dilemma with Hungary is not the first situation where a state has been able to avoid punishment for a violation of International Law, it highlights the need to find new ways to prevent one or two actors from tying up International Law.