The Conclusion of Trade Agreements and the EU’s Duty to Respect Human Rights Abroad: Extraterritorial and Territorial Considerations

Abstract

The chapter explores the question of whether the EU is bound by human rights obligations towards individuals located outside the territory of the Member States when it concludes trade agreements with third countries. In this light, the chapter focuses on two concrete sub-questions: (a) the question of the extraterritorial applicability of the EU Charter of Fundamental Rights; and (b) the question of the existence of a due diligence obligation incumbent upon the EU institutions to examine the impact of the agreement to the human rights situation in the third State. In relation to the question of the extraterritoriality of the Charter, the chapter argues that territorial considerations are immaterial in the context of determining the Charter's applicability; what matters in this context is whether the situation in question is covered by an EU competence. Next, the chapter examines whether a relevant EU duty of due diligence exists-as a matter of either EU or international law. It is shown that the existence of such a duty under international law is far from straightforward and it involves an examination of the relevant primary norms. The chapter concludes by highlighting that, as a matter of EU law, a duty of due diligence to take into account the impact of a future agreement on the human rights situation in a third State clearly exists.

EU Trade Policy between Constitutional Openness and Strategic Autonomy

“…As remarked by Chamon, Wessel and Kassoti, and Bosse-Platière, Article 3(5) TEU appears to introduce an internal constitutional justification for the EU's compliance with international law, as opposed to what might be perceived as an external obligation imposed by international law onto the EU, foreign to the EU's own constitutional charter. 49 And while pre-Lisbon case law already maintained that the EU should act in line with international law, 50 in Air Transport Association of America, the Court expressly relied on Articles 3(5) and 21(1) TEU to affirm that the EU, when adopting an act, 'is bound to observe international law in its entirety, including customary international law, which is binding upon the institutions of the European Union'. 51 Although the normative force of Article 3(5) TEU remains contested, 52 the provision stipulates as a minimumand irrespective of its 'legal bite'a mandate not to breach international law.…”