A critique of the extraterritorial obligations of the EU in relation to human rights clauses and social norms in EU free trade agreements

Abstract

This article examines the nature of the EU’s obligations in relation to human rights and social norms in its free trade agreements (FTAs) with a view to problematising the extent to which such clauses are justiciable and enforceable. While human rights do not fall within the area of exclusive EU competence, it is widely accepted that the EU may be liable for contributing to human rights violations in the context of trade agreements under international law and EU law. Conversely, it will be shown that social norms, including labour standards and principles such as sustainable development and environmental protection, which are increasingly set out in the Trade and Sustainable Development (TSD) chapters of FTAs, raise more complex questions regarding the territorial reach of EU law. It is submitted that EU FTAs are constructed in such a way as to exclude rights with the effect that the extraterritorial obligations of the EU in relation to human rights clauses and social norms are unlikely to be judicially enforceable in practice. However, in spite of the territorial limitations of EU law in relation to human rights clause and social norms, recent developments in the case law of the Court of Justice of the EU (CJEU) suggest that the EU is nevertheless under an obligation to ensure its trade agreements with developing countries are conducted in a ‘development-friendly’ manner. To conclude, this article advances the argument that the obligation to engage in ‘development-friendly’ trade may serve to extend the territorial reach of EU further, albeit within the confines of trade and cooperation agreements.

Handbook of Regional Cooperation and Integration

“…In this context, the perception is that investment arbitration tribunals and the WTO dispute settlement mechanism (DSM) are unable to address conflicts between environmental and human rights protection and the promotion of economic activities, even more so when these conflicts have a transnational character. The situation is even more complex because, even if trade and investment agreements increasingly include sustainability clauses, they have also threatened human rights and environmental protection (Lizarazo Rodríguez, 2021;Gruni, 2018;Gammage, 2018).…”

Joint Institutional Frameworks in EU Bilateral Agreements: Joint Bodies, Rules and Principles, and Special Procedures

“…Conditionality in EU agreements relates to two sets of EU principles: those reflecting the normative component of EU foreign policy (liberal‐democratic values conditionality ); and those that regulate joint economic activity including the access to the EU's internal market ( market access conditionality ). The values conditionality principles include the rule of law, human rights, democracy, good governance, respect for treaty obligations and the Parties' international commitments (Bartels, 2005; 2013; Velluti, 2016; McKenzie and Meissner, 2017; Gammage, 2018; Vianello, 2018; Rabinovych, 2021). Since the Treaty of Lisbon, trade, environment and labour sustainability provisions have also been included (Van den Putte and Orbie, 2015; Orbie et al ., 2017; Ott and Van der Loo, 2018, p. 230; Harrison et al ., 2019; Öberg, 2020).…”

The Nexus between the Common Commercial Policy and Human Rights

“…66 A recurring criticism concerns the weak enforcement mechanisms in relation to human rights clauses and social norms in EU free trade agreements 67 . 68 The monitoring of implementation of the relevant commitments is essentially based on dialogue and cooperation without a possibility to use the normal dispute settlement procedures. The TSD chapters generally provide for the establishment of a specialised Committee with senior officials from the respective parties, accompanied by a civil society mechanism that may take the form of a Domestic Advisory Group.…”