Human Rights Clauses in EU Trade Agreements: The New European Strategy in Free Trade Agreement Negotiations Focuses on Human Rights—Advantages and Disadvantages
© Springer International Publishing Switzerland 2015Norman Weiß and Jean-Marc Thouvenin (eds.)The Influence of Human Rights on International Law10.1007/978-3-319-12021-8_15
15. Human Rights Clauses in EU Trade Agreements: The New European Strategy in Free Trade Agreement Negotiations Focuses on Human Rights—Advantages and Disadvantages
Law clerk, Berlin, Germany
[…] The aim of our commercial policy is also to project our values with respect to human rights […] with respect to the rights of workers, and they are, and they will be, an integral part of my approach with respect to trade policy.1
Human Rights and Trade Agreements lie at the core of European policies. The policies are based on a long history of economic cooperation and integration in order to protect Human Rights and to establish and maintain a high level of Human Rights protection. Although recent developments have emphasized a more streamlined approach to the integration of Human Rights issues into other areas of action, the issue of Human Rights has already influenced European external policies for several decades. Thus, while certain aspects of this policy may be deemed “new,” the general approach has been established for a long time. Starting point for the discussion on integrating Human Rights clauses into EU external policy was a 1977 massacre in Uganda at a time the EU had committed development assistance to Uganda but did not wish to contribute to Human Rights abuses in Uganda. More recent developments have actually shown the EU moving somewhat away from a strict approach of including Human Rights clauses in its agreements and thereby contradicting its own policy guidelines and rhetoric.
This chapter will briefly highlight the development of the integration of Human Rights clauses into European Trade Agreements, explain the status quo, and focus on the existing advantages and disadvantages.
15.2 Human Rights Clauses in EU Trade Agreements
The European Union has been a particularly strong proponent of Human Rights. This is reflected by a long history of political and philosophical debate on the issue across the European nations. The foundation of the European Communities and its evolution towards the European Union was in several ways a direct reaction to the horrific events of World War II, and according to Article 2 of the Treaty on European Union, the EU is founded on the core values “of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights.” Founded on these values, the EU aims at aligning its actions with them and at acting accordingly. Article 3 of the Treaty on European Union states that the EU “[…] shall uphold and promote its values and interests […]” and “[…] shall contribute to […] the protection of human rights […].” According to Article 21 of the Treaty on European Union, the external actions of the EU “[…] shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.” Consequently, the EU has to take account of the issue of Human Rights when dealing with other countries and negotiating and concluding international agreements.
One way to advance this policy objective of advancing Human Rights and democracy in the wider world has been the inclusion of Human Rights clauses in agreements negotiated and concluded with third parties. The EU is one of the rare examples around the world to include general Human Rights clauses in its agreements. Another prominent example is the inclusion of clauses concerning worker’s rights in free trade agreements, a practice often applied by the United States.
Still, the EU remains the strongest proponent of the inclusion of Human Rights clauses or references to Human Rights in its agreements. This has been affirmed by EU Trade Commissioner Karel de Gucht when he stated that “the aim of our commercial policy is also to project our values with respect to human rights, with respect to the protection of the environment, with respect to climate change, with respect to the rights of workers, and they are, and they will be, an integral part of my approach with respect to trade policy.”2 The EU has been pursuing this approach for quite some time now and has always encountered difficulties. A look back at the evolution of the EU approach to include Human Rights clauses in Trade Agreements will lead the way to an analysis and evaluation of this strategy.
15.2.1 The EU and Free Trade Agreements
The European Communities were relatively reluctant to conclude free trade agreements with third countries, especially after the founding of the WTO and prioritizing its efforts on the multilateral level. Agreements were concluded, though, with neighboring countries and especially with countries expected to join the Communities at some point. This fundamentally changed with the slowdown and potential impasse of the WTO negotiations. The EU and nearly every other state or regional bloc began to negotiate and conclude free trade agreements with partner countries around the world. By now it is hard to estimate an exact number of free trade agreements as negotiations are ongoing and agreements are nearly concluded on a daily basis. By January 2013, more than 540 agreements were notified to the WTO (counting goods and services separately).3 The EU officially observed a moratorium from negotiating bilateral agreements from 1999 to 2006 after the 1995 founding of the WTO and devoted all its efforts into the multilateral level.4
While negotiations do continue at the WTO, many countries are mostly devoting their efforts into negotiating bilateral free trade agreements and thereby circumventing the WTO and also the impasse in WTO negotiations.
15.2.2 Background of EU Human Rights Clauses
Human Rights clauses in EU Free Trade Agreements do have a considerably long history and have evolved over time. A closer look at their development will help the later analysis and evaluation of this approach.
While the EU has probably never been involved in as many parallel negotiations of bilateral free trade agreements as right now, the debate about including Human Rights clauses goes back to the 1970s. In 1977, a massacre took place in Uganda.5 The EU relations with Uganda were governed by the Lomé I Convention , a treaty concluded by the EU with the so-called African, Caribbean and Pacific (ACP) states. The EU had committed funds and payments of development aid and withdrew those funds as a reaction to the massacre in order to avoid contributing (financially) to the Human Rights violations.6 The withdrawal of the payment naturally had a second objective, coercing Uganda to end the Human Rights violations. A direct consequence of the events in Uganda were the so-called Uganda Guidelines stating that “any assistance given by the Community to Uganda does not in any way have as its effect a reinforcement or prolongation of the denial of basic human rights to its people.”7
Thus, the debate about the inclusion of Human Rights clauses in bilateral trade agreements did not constitute a decision by the European Communities to proactively advance its Human Rights values but a defensive reaction to concrete Human Rights violations in order to avoid contributing to the Human Rights violations. The debate that followed focused on this approach of avoiding EU involvement in Human Rights violations in third countries. There did exist certain legal problems, as there was no legal basis for the withdrawal of such payments or the suspension of the treaty or parts of the treaty. Consequently, the EU wanted to include a legal basis in the Lomé Agreement for suspending the agreement in case of such cases of Human Rights violations.8 The debate remained mostly theoretical during the 1980s though the Lomé IV Convention , signed in 1989, did contain a reference to Human Rights, although without any potential legal consequences in case of Human Rights violations.9 It was not until a 1990 cooperation agreement between the EC and Argentina that a more meaningful Human Rights clause was included.10 Despite the discussion after the Uganda massacre, the Human Rights clause was included at the request of the Argentinian side.
Since the early 1990s, EU bodies have affirmed the EC’s commitment to Human Rights and emphasized a “positive approach ” favoring dialogue and declaring sanctions the last resort. Human Rights clauses became standard in agreements concluded by the European Communities; in May 1992, the EC established this approach by declaring that respect for democratic principles shall be “an essential part of agreements between the EC and the Conference on Security and Cooperation in Europe (CSCE) countries.”11 The first agreements concluded with regard to this approach included a similar provision. An Agreement between the European Economic Community and the Republic of Albania on trade and commercial and economic cooperation affirms in its Article 1: “Respect for the democratic principles and human rights established by the Helsinki Final Act and Charter of Paris for a new Europe inspires the domestic and external policies of the Community and Albania and constitutes an essential element of the present agreement.”12 This provision needs to be read with regard to Article 21 (3), which states that “The parties reserve the right to suspend this Agreement in whole or in part with immediate effect if a serious violation occurs of the essential provisions of the present Agreement.”
This constitutes an important and innovative development, especially considering the possible legal consequences. The wording makes reference to Article 60 (3) lit. b) of the Vienna Convention on the Law of Treaties (VCLT).13 It states that “A material breach of a treaty, for the purposes of this article, consists in: […] (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.” By designating the Human Rights clause an “essential element” of the treaty, the contracting parties are enabled to terminate “the treaty or suspending its operation in whole or in part” according to Article 60 (1) of the VCLT. Without any further explanation in the treaties themselves, the EC has created a strong legal basis for reaction to Human Rights violations. As this provision was also used in agreements with the Baltic States, it came to be known as the “Baltic clause.”14 This clause evolved into the “Bulgarian clause,”15 which allowed for greater flexibility and enabled the parties to “take appropriate measures” but only after having had recourse to the Association Council and a political dialogue. This clause was integrated into agreements with Vietnam, South Korea, and Israel, as well as Association Agreements with Tunisia and Morocco and the revised Lomé IV Convention (all concluded in 1995).
It took the EC nearly 20 years to achieve an adequate solution for the question of reacting to Human Rights violations, but the EC did arrive at a firm clause enabling reactions.
220.127.116.11 Formalization of the Approach
After including strong and enforceable Human Rights clauses in its treaties, the EC began to consolidate and to formalize the approach.
Considering the different approaches, the Commission published guidelines on the integration of Human Rights clauses into EC agreements.16 The decision established guidelines for the preamble of agreements (general references to Human Rights and Human Rights instruments) and for the body of the agreements (respect for democratic principles and human rights constitute essential elements of the agreement).
A “Commission Communication on the Inclusion of Respect for Democratic Principles and Human Rights in Agreements between the Community and Third Countries”17 again described the Commission’s position on the issue, evaluated the implementation of the 1993 decisions, and proposed draft clauses to be used in future negotiation directives and upcoming agreements. After criticism and concern voiced by the European Parliament and the Council, the Commission aimed at improving “the consistency, transparency and visibility of the Community approach and to make greater allowance for the sensitivity of third countries and the principle of non-discrimination.”18
The Commission revised the guidelines and proposed more elaborate standard clauses for the draft negotiating directives . There were no changes related to the references in the preamble of future agreements. The proposed articles for the body of the agreement included a clause defining Human Rights and democratic principles and a second clause on nonexecution of an obligation of the agreement. The Commission also proposed the insertion of an interpretative declaration regarding the nonexecution clause and the question of cases of special urgency that allow the taking of appropriate measures without having prior recourse to the Association Council. According to the proposed interpretative declaration, the violation of an essential element does constitute a “special urgency.” The Communication was directed at the Council and the Parliament and was taken up only a few days later by the Council in the Council Conclusions. The Council concluded that “a suspension mechanism … should be included in Community agreements with third countries to enable the Community to react immediately in the event of violation of essential aspects of those agreements, particularly human rights.”19
By 2001, the “essential elements clause” had been included in a plethora of agreements and applied to more than 120 countries. Since then, the EU continues to pay attention to the issue. A 2001 Communication from the Commission on the EU’s role in promoting Human Rights and Democratisation in Third Countries sets forth the Commission’s position on the issue and especially underlines the Commission’s intent to reinforce Human Rights dialogues with partner countries.20
More recently, several documents have taken up the issue of Human Rights and the EU’s external policies. The Commission published a Communication regarding the trade policy aspects of the strategy “Europe 2020: A strategy for smart, sustainable and inclusive growth” and underlined that the EU’s trade and political relations are supposed to “encourage our partners to promote the respect of human rights, labour standards, the environment, and good governance […].”21 In late 2011, the Commission and the High Representative of the European Union for Foreign Affairs and Security Policy issued a Joint Communication to the European Parliament and the Council entitled “Human Rights and Democracy at the Heart of EU External Action – Towards a More Effective Approach”22 and again highlighted the Human Rights clauses in EU agreements with third countries and the relevance of Human Rights for EU trade policy.23 Finally, in 2012 the Council of the European Union agreed on a “Strategic Framework and Action Plan on Human Rights and Democracy.”24 The framework emphasized again that the EU will integrate the promotion of Human Rights into—among other policies—trade and investment policies. The Action Plan also referred to certain specific measures to further strengthen the role of Human Rights in EU trade policy, including the reinforcement of Human Rights dialogues with FTA partners.25
It seems obvious that the EU remains committed to promoting Human Rights through its external actions, including cooperation agreements and free trade agreements, and the guidelines call for Human Rights clauses to be included in all EU agreements. However, recent bilateral trade agreements do not always contain elaborate Human Rights clauses anymore as they have often been strongly opposed by the respective negotiating partners.
18.104.22.168 Further Examples After Formalization
After the formalization, Human Rights clauses have continued to be included in most agreements concluded by the EU. More recently though, especially with regard to agreements solely focused on trade, less elaborate clauses have been included—if present at all.26
The Association Agreements between the EU and the Mediterranean countries as well as the bilateral free trade agreements concluded with South Africa, Mexico, and Chile all include Human Rights clauses establishing respect for Human Rights and democratic principles as an essential element of the agreement. The most elaborate mechanism can be found in the 2000 Cotonou Agreement between the EU and the Group of ACP countries. The Cotonou Agreement , successor to the Lomé Conventions, contains a Human Rights clause in its Article 9,27 and Article 96 and Annex VII establish a highly elaborate mechanism in case of violations of the principles set out in Article 9 (so-called Article 96 Consultations).
More recent agreements, however, often do not include Human Rights clauses. While the agreement between the EU and the Andean Community states of Colombia and Peru (concluded in 2010, signed in 2012) does include a Human Rights clause in its Article 1, the bilateral free trade agreement concluded between the EU and the Republic of Korea (signed 2009, in force since 2011) does not include such a clause at all. The agreement does, however, include a chapter concerning Trade and Sustainable Development, which makes reference to environmental and labor protection. The provisions on labor protection are very detailed and constitute probably the highest number of specifically defined Human Rights in an EU trade agreement so far.28 It remains to be seen, though, how effectively these provisions will be implemented over time.