The Promotion and Integration of Human Rights in EU External Trade Relations

• Author: Samantha Velluti
• Position: Reader in Law, Sussex Law School (United Kingdom)
• Pages: 41-68

Samantha Velluti, ‘The Promotion and Integration of Human Rights in EU

External Trade Relations’ (2016) 32(83) Utrecht Journal of International and

European Law 41, DOI: http://dx.doi.org/10.5334/ujiel.342

UTRECHT JOURNAL OF

INTERN

ATIONAL AND EUROPEAN LA

W

RESEARCH ARTICLE

The Promotion and Integration of Human Rights in

EU External Trade Relations

Samantha Velluti*

The European Union (EU) has made the upholding of human rights an integral part of its external

trade relations and requires that all trade, cooperation, partnership and association agreements

with third countries, including unilateral trade instruments, contain with varying modalities

and intensity a commitment to the respect for human rights. The paper discusses selected

aspects of the EU’s promotion and integration of human rights in its external trade relations

and assesses the impact of the changes introduced by the 2009 Treaty of Lisbon (ToL) on EU

practice.

Keywords: EU law; Human rights; EU external trade relations; Unilateral trade arrangements;

Bilateral and regional agreements; Human rights conditionality

I. Introduction

This paper discusses certain aspects of direct relevance to the European Unions’s (EU) promotion and inte-

gration of human rights in its external trade law and policy before and after the entry into force of the

Treaty of Lisbon (ToL) and in so doing it unravels and assesses extant limitations to EU practice and ways of

addressing them.

Since the mid-1990s, the EU has developed a sophisticated array of instruments to promote human rights

in its external trade policy such as human rights clauses in bilateral trade agreements and a set of human

rights criteria in the Generalised System of Preferences (GSP).1 In 2010, a Communication on Trade, Growth

and World Affairs emphasised the trade-human rights nexus by stating that the aim of the EU is to encour-

age the EU’s partners to promote the respect of human rights, labour standards, the environment and good

governance through trade.2

However, the impact and credibility of the EU’s approach to human rights in its external trade policy has

been called into question because of the selective and uneven application of these human rights instruments.

In this context the EU appears to be more concerned with the goals of an economic and political integration

community rather than with the objectives of a human rights organisation.3 This and other trade-related

human rights concerns have been recognised and addressed in the Council’s 2012 Strategic Framework and

corresponding Action Plan for Human Rights and Democracy, which provides a roadmap to mainstream

human rights into ‘all areas of its external action without exception’4 and commits the EU to ‘develop meth-

odology to aid consideration of the human rights situation in third countries in connection with the launch

* Reader in Law, Sussex Law School (United Kingdom).

1 These are in addition to the other instruments that the EU uses to engage in the promotion of human rights externally such as

human rights guidelines, bilateral and multilateral diplomacy, and technical and financial assistance instruments, see Annabel

Egan and Laurent Pech, ‘Respect for Human Rights as a General Objective of the EU’s External Action’ (2015) KU Leuven Working

Paper No 2015/161 1–170/wp161-egan-pech.

pdf> accessed 26 March 2016.

2 COM(2010) 612 final, 12.

3 Allan Rosas, ‘Is the EU a Human Rights Organisation?’ (2011) CLEER Working Paper No 2011/1, 11, 13 .asser.nl/

media/1624/cleer-wp-2011–1-rosas.pdf> accessed 26 March 2016.

4 Council of the European Union, ‘EU Strategic Framework on Human Rights and Democracy’ (Luxembourg, 25 June 2012) 11855/12,

2 (Strategic Framework).

The Promotion and Integration of Human Rights in EU External Trade Relations42

or conclusion of trade and/or investment agreements’.5 In a similar vein, in a Communication on Trade,

Growth and Development6 the European Commission mentioned the need for change in order to foster

growth, develop synergies between trade and development policies and the importance of projecting the

EU’s values and interests in the world, highlighting how the respect for human rights represents one of its

core values in its external action. In the new EU trade strategy,7 this shift in focus has been further expanded

in order to include a parallel concern for the environment and human rights, including social rights. In

addition, there is explicit reference to using trade agreements and trade preference programmes as levers to

promote around the world values such as sustainable development, human rights, fair and ethical trade and

the fight against corruption as well as improving the responsibility of supply chains. Indeed, it is now widely

recognised that business operations affect the public interest and can impact on a range of human rights.8

At international level there has been a turn to ‘responsible contracting’9 and, in particular, a growing

concern for infusing ethical and normative objectives and processes into State-investor contracts10 as well as

ways for incorporating human rights. The drafting of the Principles for Responsible Contracts – Integrating

the Management of Human Rights Risks into State-Investor Contract Negotiations11 and the Guiding Principles

on Business and Human Rights: Implementing the United Nations’ ‘Protect, Respect and Remedy’ Framework12

are aimed at fulfilling the aforementioned objectives and at reducing the negative externalities on third par-

ties such as affected communities and service recipients.

The ToL reinforced the EU’s external commercial competence13 and, at the same time, it injected a norma-

tive approach into its external action through Articles 3(5) and 21 of the Treaty on European Union (TEU)14

to advance European values, principles and objectives and whose universal application is sought via explicit

reference to compliance with international law. Arguably, human rights have become the ‘silver thread’ of

EU external action.15

However, the promotion and protection of human rights externally presents many challenges. In the first

place, there are problems concerning vertical and horizontal consistency requiring all the Member States

within the EU to speak with one voice in their external relations and, linked to this, the persistence of inter-

institutional conflict at EU level. While internal cohesiveness is not a sufficient condition for the effective-

ness of EU external action to occur and other factors need to be taken into account, such as bargaining

configuration between the parties,16 achieving and maintaining a common position at the EU inter-insti-

tutional level is a necessary condition for ensuring consistency in policy implementation. In addition, from

the perspective of coherence integrating human rights in the EU external policies is problematic because

of the mismatch between the internal and external dimensions of human rights promotion and protection,

the inevitable clash between the objectives of the different EU external policies and human rights as well as

5 ibid 11.

6 Commission, ‘Trade, growth and development: Tailoring trade and investment policy for those countries most in need’ (Communi-

cation) COM(2012) 22 final.

7 Commission, ‘Trade for all – towards a more responsible trade and investment policy’ (Communication) COM(2015) 497 final.

8 Jan Wouters and Nicolas Hachez, ‘When Rules and Values Collide: How Can a Balanced Application of Investor Protection Provi-

sions and Human Rights Be Ensured?’ (2009) 3 Human Rights & International Legal Discourse 301, 316.

9 OHCHR, A Turn to Responsible Contracting: Harnessing Human Rights to Transform Investment (ICTSD and World Economic Forum

2015).

10 A State-investor contract can be broadly defined ‘as a contract made between the State, or an entity of the State, which, for present

purposes, may be defined as any organisation created by statute within a State that is given control over an economic activity, and

a foreign national or a legal person of foreign nationality’. See United Nations Conference on Trade and Development (UNCTAD),

‘State Contracts’ (2004) IIA Paper Series accessed 20 August 2016. Examples

are: loan agreements, purchase contracts for supplies or services, contracts of employment, large infrastructure projects and con-

cession agreements.

11 UNGA ‘Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations

and other business enterprises, John Ruggie – Principles for responsible contracts: integrating the management of human rights

risks into State-investor contract negotiations: guidance for negotiators’ (25 May 2011) UN Doc A/HRC/17/31/Add.3.

12 John Ruggie, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’

Framework (UN 2011) (Ruggie Principles). It is noteworthy that the human rights obligations contained in the Ruggie Principles

have been anchored to the eight core ILO Conventions.

13 Roberto Bendini, ‘The European Union’s Trade Policy, Five Years after the Lisbon Treaty’ (2014) PE 522.329.

14 As for the obligations provided for by Consolidated version of the Treaty on European Union [2008] OJ C115/13 (TEU) art 21. See

also Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C326/01 (TFEU) arts 205, 207, and

208.

15 Clair Gammage, ‘Social Norms and Labour Standards in EU FTAs: A Legal Perspective’ (GIFTA Workshop, London, United Kingdom,

30 June – 1 July 2015).

16 Eugénia da Conceição-Heldt and Sophie Meunier, ‘Speaking with a Single Voice: Internal Cohesiveness and External Effectiveness

of the EU in Global Governance’ (2014) 21 Journal of European Public Policy 961.