The Human Rights Clause in the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union (EU)

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The Human Rights Clause in the Comprehensive Economic

and Trade Agreement (CETA) between Canada and the

European Union (EU)

SARAH ZEGGOUD sa.zeggoud@gmail.com 12737348

LLM in Public International Law: International and European Law Supervisor: Dr. Antoinette Hildering

Submission Date: 24 July 2020

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1 Abstract:

The purpose of the thesis is to provide an overview of the impact of the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union (EU) on how human rights clauses are drafted in EU trade agreements with third countries. The research question is the following: What is the impact of the CETA between Canada and the EU on how the human rights clauses are drafted in EU trade agreements with third countries?

In order to evaluate the impact of the human rights clause of the CETA, a comparison with three other EU agreements will be made. The first chapter of the thesis will present an analysis of the human rights clause of the CETA. According to the standardization of human rights clauses in European free trade agreements made by the Union and its Member States, the analysis will be divided into two sub-paragraphs: ‘the essential element clause’ and ‘the non-execution clause’. The second chapter will compare the human rights clauses of the three European agreements ‘the essential element clause’ and the ‘non-execution clause’. The first agreement is the Cooperation Agreement between the European Community and the Republic of India on partnership and development. It is legally interesting for the fact that its clause was used to establish the standard agreed in 1995. The second agreement is the Partnership agreement between the members of the African, Caribbean and Pacific Group of States and the European Community and its Member States ‘Cotonou Agreement’ which is the best application of the standard of the human rights clause in EU trade agreements. The third agreement is the Strategic Partnership Agreement between the European Union and its Member States and Japan along with the Economic Partnership Agreement. This agreement is legally interesting, as, although it was concluded after the CETA between Canada and the EU, it shows that the CETA has neither impacted the drafting of the human rights clause nor set a precedent since its clause is very distinct from the one in the CETA between Canada and the EU. The third chapter will analyse the inadequacies of the human rights clause in EU trade agreements with an emphasis on two main deficiencies. The last part of the third chapter will give recommendations based on the studies of Doctor Lorand Bartels, a professor from the University of Cambridge, who worked on human rights clauses in EU trade agreements for European institutions.

Thus, after analysing the human rights clause in the CETA, comparing it with three other agreements and noting the inadequacies of these human rights clauses in general, it can be concluded that the CETA has not impacted the practice and the drafting of human rights

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clauses and that the EU needs a legal and legislative reform on this topic. This reform could address an assessment mechanism on human rights clauses after the entry into force of trade agreements which would, therefore, make it possible to monitor the conduct of the third State. Moreover, it should give a greater role to the European Parliament, protector of human rights within the Union, in order to allow a better application of these clauses. The EP could also insist on the fact that all human right clauses provide for ‘appropriate measures’ if there is a violation since it supervises the conclusion of a new economic agreement. These recommendations are based on the ones made by Doctor Lorand Bartels from the University of Cambridge who worked on human rights clauses in EU trade agreements for European institutions.

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Non-commercial interest in trade relations within the European Union (EU) has become a major concern since the Lisbon Treaty.1 In fact, the Lisbon Treaty encourages all member States of the EU to promote the agreed values of the Union universally. The Article 21 of this treaty2 gives the EU the mandate to foster ‘international cooperation to serve various objectives’ such as the human rights.3 Therefore, it is worth analysing trade agreements and their human rights clauses.

The main objective of the thesis is to provide an analysis of the Comprehensive Economic Trade Agreement between Canada and the European Union (CETA)4’s human rights clause by exploring their impact on the drafting of these clauses and, by pointing out the existing inadequacies.

As aforementioned, this thesis is going to focus on the CETA and the EU in particular on the question: What is the impact of the CETA between Canada and the EU on how the human rights clauses are drafted in EU trade agreements with third countries?

The first chapter will introduce the human rights clause of the CETA in order to note how they are drafted. The objective of this agreement is to increase the trade between member States of the EU and Canada, and help generate growth and jobs.5 It has three mains consequences: ‘lower customs tariffs and other barriers to trade between the EU and Canada, uphold Europe’s high standards in areas like food safety, workers’ rights and the environment, and respect democracy’. It was ratified by 14 member States to be of benefit for people and businesses in both parties. It is composed of thirty chapters and entered into force provisionally on 21 September 2017. The CETA has a progressive approach for two reasons: the first one refers to the fact that the CETA clarifies exactly in which circumstances the human clause must be

1_{Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European}

Community [2007] OJ C306/01.

2_{Ibid art 21.}

3_{Tamara Takacs, Andrea Ott, Angelos Dimipoulos, ‘linking trade and non-commercial interests: the EU as a}

global role model’ (2013), Cleer Working Papers 2013/4, 9.

4_{Comprehensive Economic and Trade Agreement between Canada and the European Union (signed 30 October}

2016, entered into force provisionally 21 September 2017).

5_{European Commission, ‘CETA chapter by chapter’ (European Commission official website)}

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applied6; the second one is that the human rights clause is in the Strategic Partnership Agreement (SPA)7 which link it with the CETA. As the CETA focused mainly on trade and related issues, it is in accordance with other similar trade agreements with only a reference to a human rights clause. The consequence of a breach of the human rights clause is the termination of the trade agreement. For these two main reasons, this trade agreement is, therefore, very interesting legally for the entire analysis of this subject. The analysis of the CETA will be through both parts of the clause: the ‘essential element clause’ and ‘the non-execution clause’. Since the end of the last century, ‘the diverse text of human rights clauses included into the international agreements of the EU were progressively standardised based on the model text as essential element clause and a non-execution clause’8.

In order to conduct an in-depth analysis of the problem, the second chapter will compare the CETA with three other agreements concluded between the EU and another State by analysing their human rights clauses through their ‘essential element clause’ and their ‘non-execution clause’ such as the analysis conducted on the human rights clause of the CETA in the first part. The main objective of this part is to notice the evolution on the drafting of human rights clauses through these comparisons. The trade agreements will be the Cooperation Agreement between the European Community and the Republic of India on partnership and development ‘EU-India 1993’9_{, the Partnership agreement between the members of} the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part ‘the Cotonou Agreement 2000’10_,

and the Strategic Partnership Agreement between the European Union and Japan11_(SPA) along with the Economic Partnership Agreement (EPA).12_{The ‘EU-India 1993 agreement} is interesting because it possesses a non-execution clause, which is different from the one in the other trade agreements and was signed before the commission was settled. This gave the

6_{Ionel Zamfir, ‘Human Rights in EU trade agreements’ (July 2019), European Parliamentary Research Service,}

9.

7_{Strategic Partnership Agreement (Canada-European Union) (signed in 30 October 2016, entered into force in}

April 2017).

8_{Tamara Takacs, Andrea Ott, Angelos Dimipoulos, ‘linking trade and non-commercial interests: the EU as a}

global role model’ (2013), Cleer Working Papers 2013/4, 23.

9_{Cooperation Agreement between the European Community and the Republic of India on partnership and}

development (India -European Union) (signed 20 December 1993, entered into force 1 August 1994).

10_{Partnership agreement between the members of the African, Caribbean and Pacific Group of States and the}

European Community and its Member States (signed 23 June 200, entered into force 1 April 2003).

11_{Strategic Partnership Agreement between the European Union and its Member States, and Japan (signed 17}

July 2018).

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obligation to include a human rights clause in all European trade agreement. The agreement between these two parties is a comprehensive agreement including trade cooperation provisions but no free trade provisions. The Cotonou Agreement 2000 is the replacement for the 1975 Lomé IV Convention which was the agreement governing the relationship between the EU and the African, Caribbean and Pacific countries.13It is legally interesting as the EU has always wanted to include a human rights clause in the Lomé III Convention, the Convention agreed before the Lomé IV, and it was only included in the Lomé IV in its article 5(1) which is the first European trade agreement that refers to human rights14. The Cotonou Agreement is the same type of legal agreement as the SPA with Canada. It serves as the framework agreement between the ACP States and the EU, which means human rights clauses are included in it and these human rights clauses are linked to the various bilateral economic agreements between an ACP States and the EU. The SPA with Japan is legally interesting as, although it was signed two years after the one with Canada, the human rights clauses are not as explicit as the one with Canada, due to Japan’s reluctance to link human rights and economic interests.15

Lastly, the third chapter will deal with the inadequacies found in the human rights clause in EU trade agreements in general. The first inadequacy will refer to the Court’s position regarding the non-obligation to take measures in case of a violation of the human rights clause. The second one will focus on the political character for which the clause has only been invoked to date. In the second part of the third chapter, two recommendations based on the work of Dr Bartels will be developed.

. The scope for the first chapter will analyse the CETA’s human rights clause, never before carried out. The research will be based on primary sources, mainly on EU trade agreements and their ‘travaux préparatoires’ made by the member States but also on international and European human rights instruments. Secondary sources will be used to analyse these primary sources, such as articles by academics and studies, for instance those carried out by the European Commission and the European Parliament. To address the statement of this thesis, in the second chapter a comparative law research methodology will be used comparing the CETA with three other EU agreements and their human rights clauses. This comparison will analyse with two trade agreements drafted before the CETA and one trade agreement drafted after to analyse if

13_{Joseph A. McMahon, ‘Cotonou Agreement: Negotiating continuity or, change?’, (2005), 37.}

3.

15_{Enrico D’Ambrogio, ‘the EU-Japan Strategic Partnership Agreement (SPA)’January 2019), European}

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and how the CETA has impacted the drafting of human rights clauses. The last chapter will present, inadequacies found as well as recommendations, based on Doctor Lorand Bartels researches who is a professor from the University of Cambridge. He worked on human rights clauses in EU trade agreements for European institutions.

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8 II- The approach of human rights clause in the CETA between Canada

and the European Union.

The CETA between Canada and the EU is a trade agreement which ‘will contribute to ensuring that economic growth, social development and environmental protection are mutually reinforcing’16_{. It includes obligations regarding labour rights for the Union and for Canada.}17 and is an agreement which focuses mainly on trade and related issues.18

In this chapter, there will be a focus on the CETA by analysing the human rights clause: the ‘essential element clause’ and the ‘non-execution clause’. The human rights clause can be found on the Strategic Partnership Agreement (SPA) which was signed by Canada and the EU on October 2016 and was approved with the CETA on February 2017 by the European Parliament. The SPA entered into force on the 1st April 2017. The SPA is a bilateral cooperation on several issues such as international peace, security and human rights.

1. The ‘essential element clause’

The essential element clause19 which is the first part of a human rights clause for the CETA can be found on the SPA. It represents ‘the core of all human rights clauses’.20 It is enacted in Article 2(1) of the SPA ‘ Respect for democratic principles human rights and fundamental freedoms, ad laid down in the Universal Declaration of Human Rights and existing international human rights treaties and other legally binding instruments to which the Union or the Member States and Canada are party, underpins the Parties’ respective national and international policies and constitutes an essential element of this Agreement’21.

The version of the human rights clause included in the first part of the cited clause, the essential element clause, was drafted by a Commission communication in 1995. In fact, in the

16_{European Commission, ‘CETA chapter by chapter’ (European Commission official website, ‘travaux}

preparatoires’) https://ec.europa.eu/trade/policy/in-focus/ceta/cetachapter-by-chapter/.

17_Ibid

4.

19_{Lorand Bartels, ‘Chapter 7. The Eu’s approach to social standards and the TTIP’ (2010), University Senior}

Lccturer in Law, Faculty of Law, 84

20_Ibid.

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conclusions of the European Commission, it was indicated that certain elements were required to be included such as ‘pertinent references to respect for human rights in general and to universal and/or regional instruments’ and ‘in the body of the agreement, an Article X should define respect for democratic principles and fundamental human rights as an essential element of the agreement’.22_{This version of the clause has evolved during the years and not all} agreements contain the same human rights clause23. The wording of this clause was ‘Respect for the democratic principles and fundamental human rights established by (the Universal Declaration of Human Rights) / (the Helsinki Final Act and Charter of Paris for a New Europe) inspires the domestic and external policies of the Community and of (the country or group of countries concerned) and constitutes an essential element of this agreement)24.

The SPA between Canada and the EU was formulated with almost the same wording as the version adopted by the Commission in 1995.

Firstly, this essential element clause mentioned the Universal Declaration of Human Rights25_{is a document proclaimed by the United Nations General Assembly in Paris on 10} December 1948. As it was enacted by the General Assembly of the United Nations, it does not have the same legal value as a treaty enacted by States. However, the rights and freedoms protected by the Universal Declaration of Human Rights have mostly been included in the domestic legal order of most States around the world. This Universal Declaration of Human Rights 1948 is ‘sufficient’ because it contains ‘a complete list of fundamental rights and freedoms such as the right to dignity, life and liberty or the prohibition of slavery and torture.26 Obviously, the Member States of the EU have included these rights protected by the Universal Declaration in their Constitution. Moreover, they are all members of the European Convention on Human Rights27 which is similar, but even broader than the Universal Declaration of Human Rights.

22_{Anne-Carlijn Prickartz, Isabel Staudinger, ‘Policy vs practice: the use, implementation and enforcement of}

human rights clauses in the European Union’s international trade agreements’ (26 June 2019), UCL Press, 9.

23_{European Parliament report, ‘On the human rights and democracy clause in European Union agreements’ (23}

January 2006).

24_Ibid.

25_{Universal Declaration of Human Rights (adopted 10 December 1948, UNGA Res 217 A(III) (UDHR)).}

26_{Jan Vanhamme, ‘Formation and enforcement of customary international law: the European Union’s}

contribution’, (19 May 2009), Cambridge University Press, 143.

27_{European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 Novemer}

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Secondly, the essential element clause mentions ‘existing international human rights treaties and other legally binding instruments to which the Union or the Member States and Canada are party’. These two parties are part of several treaties related to the protection of human rights. Consequently, the EU and Canada must respect all their obligations under these agreements in order to fulfil their obligations under the SPA. This ‘essential element clause’ is a clause with reference to International and European norms similar to the one in the Association Agreement with Georgia in its Article 2(1).28

Thirdly, at the end of the above Article 2(1) of the SPA, it is written that ‘Respect for democratic principles, human rights ad fundamental freedoms […] constitutes an essential element of this Agreement’. As aforementioned the first part of this human rights clause is the ‘essential element clause’. It means that the protection of human rights, rule of law and democracy principles are fundamental in order to respect the agreement. Moreover, it was one of the requirements worked out during the commission in 1995.29_{‘The qualification of respect} for human rights as an ‘essential element of the agreement’ has a strong effect’. As it is explained in ‘Article 60 of the Vienna Convention on Law of Treaties30_{, ‘the violation of a} provision essential to the accomplishment of the object or purpose of the treaty’ constitutes a material breach’.31_{If one of the parties, the EU or/and Canada breached one of their human} rights obligations, it could lead to a material breach which is governed by the Article 60 of Vienna Convention on Law of Treaties32 ‘A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. Therefore, the party injured by the material breach by the other party could invoke the termination of the treaty in the case of a violation of that clause.

28_{Association Agreement between the European Union and Georgia (adopted 27 June 2014, entered into force}

1July 2016) , Art 2(1).

human rights clauses in the European Union’s international trade agreements’ (26 June 2019), UCL Press,9.

30_{Vienna Convention on the Law of Treaties (23 May 1969), UNTS, art 60.}

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2. The ‘non-execution clause’

The non-execution clause33 is the second part that composes a ‘standard human rights clause’. This non-execution clause permits the party to take appropriate measures in case of a violation of an essential element of the agreement. In fact, in the conclusion of the European Commission in 1995, it was also indicated that the human rights clause will have as a criterion an ‘Article Y on the non-execution, in cases of breach of an essential element of the agreement, which allows the parties to take appropriate measures after consulting the Association or Cooperation Council’.34_{Therefore, the party can terminate the agreement according the Vienna} Convention on Law of Treaties (VCLT). It can be written as ‘If either Party considers that the other Party has failed to fulfil an obligation under this Agreement, it may take appropriate measures. Before so doing, except in cases of special urgency, it shall supply the Association Council with all relevant information required for a thorough examination of the situation with a view to seeking a solution acceptable to the Parties.

In this instance, for the CETA, the ‘non execution clause’ can be found in the SPA between Canada and the EU. In fact, the Article 28 (7) stated that ‘In addition, the Parties recognise that a particularly serious and substantial violation of human rights or non-proliferation, as defined in paragraph 3, could also serve as grounds for the termination of the EU-Canada Comprehensive Economic and Trade Agreement (CETA) in accordance with Article 30.9 of that Agreement’.35_{Therefore, it can be seen that the parties linked the SPA with the CETA for}

the non-execution human rights clause. It is indicated that if a party violates a human right, it will terminate the CETA according to Article 30.9 of the cited agreement. The Article 30.9 (1) of the CETA stated that ‘A Party may denounce this Agreement by giving written notice of termination to the General Secretariat of the Council of the European Union and the Department of Foreign Affairs, Trade and Development Canada, or their respective successors. This Agreement shall be terminated 180 days after the date of that notice. The Party giving a notice of termination shall also provide the CETA Joint Committee with a copy of the notice’.36

Lccturer in Law, Faculty of Law, 84

human rights clauses in the European Union’s international trade agreements’ (26 June 2019), UCL Press,9.

April 2017), article 28.

36_{Comprehensive Economic and Trade Agreement between Canada and the European Union (signed 30 October}

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This non-execution clause in the CETA mentions that the trade agreement would be terminated and not suspended. This is an innovation for the ‘non-execution clause’. In fact, most cases, even the majority of the human rights clauses in trade agreements, possess a non-execution which ensures that the agreement would be suspended but not terminated. For the first time, a human rights clause would terminate the agreement for its breach. According to Dr Bartels, the termination of the Agreement ‘aligns with the Canadian practice. For the European practice, however, it presents a novelty as the recognized practice since 1995 allows partial or total suspension but not total termination37. Therefore, this agreement might have an impact on the practice and the drafting of human rights clauses. Through its non-execution clause, the fact that the breach of human rights law generates the termination of the trade agreement, the member states wanted to give more importance to human rights by taking a drastic stance on compliance with these rules.

As aforementioned, the standard non-execution clause requires parties to take ‘appropriate measures’ in case of a breach. However, in the case of the SPA with Canada, the non-execution clause does not mention the term ‘appropriate measures’ but specifies clearly the termination of the trade agreement. Commonly, there are conditions for parties to take these ‘appropriate measures’. In fact, they must be in accordance with international law and they must be the least restrictive; the suspension and/or the termination must be taken as a last resort38.

Therefore, the fact that the SPA makes a cross reference to the CETA concerning its non-execution clause which invokes directly the termination illustrates that the parties wanted to insist on the importance of the protection of human rights in their trade relations. Furthermore, during the negotiation of the CETA, the European Parliament insisted to include a human rights conditionality clause. Canada, one of the top five countries for protecting fundamental rights, was opposed to link its trade agreement with the EU to a human rights conditionality clause39. However, the European Parliament underlined the importance of enacting a human rights conditionality clause. This is surprising because the European Parliament rarely acted as a protector of human rights for trade agreements even with States less compliant than Canada40.

37_{Marc Bungenberg, Markus Krajewski, Christian J. Tams, Jörg Philipp Terhechte, Andreas R. Ziegler,}

European Yearbook of International Economic Law 2019.

Lccturer in Law, Faculty of Law.

39_{Katharina Meissner, Lachlan Mckenzie, ‘The paradox of human rights conditionality in EU trade policy: when}

strategic interests drive policy outcomes’ (2019), Journal of European Public Policy.

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It can be interpreted that the European Parliament wanted to develop a new approach for human rights clauses in trade agreements. In fact, it has insisted with the trade agreement with Canada, not because it was Canada but for reasons of timing. If the EU would have adopted a less stringent approach to the protection of human rights, it would have created a dangerous precedent for other trade agreements with countries with less respect for human rights such as China 41. Moreover, this idea can be explained by the fact that the non-execution clause generates the termination and not only the suspension. The European Union wishes to stress the importance of human rights as an essential tool even in trade relations. That is why it has hardened the consequence of a breach with termination.

To conclude, the first part of the human rights clause is quite similar to the standard of the ‘essential element clause’. However, the ‘non-execution clause’ in the CETA is different than the standard ‘non-execution clause’. The consequence of a breach is the termination of the trade agreement, which illustrates the ‘nuclear option’42_{. Moreover, ‘appropriate measures’ are not} mentioned in its non-execution clause. This is in line with the fact that the protection of human rights is even stronger than before with regard to old trade agreements. The human rights clause in the CETA might impact the drafting of human rights clauses by directly allowing the parties to terminate the contract if there is a violation of human rights. Indeed, this might create a new approach for future trade agreements which should be linked to this new approach.

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14 III- The comparison of three selected trade agreements and their human

rights clauses to demonstrate the impact of the CETA between Canada and the European Union

The main aim of this chapter is to compare the CETA with three other trade agreements in order to demonstrate the impact of the CETA on the drafting of human rights clauses. In the first chapter, the CETA has been analysed through two main clauses: the ‘essential element clause’ and the ‘non-execution clause’ This section proceeds in the following structure. Firstly, the Cooperation Agreement between the European Community and the Republic of India43 on partnership and development will be compared. Secondly, a comparison with the Partnership agreement between the members of the African, Caribbean and Pacific Group of States and the European Community and its Member States ‘Cotonou Agreement’44 will be conducted. Thirdly, the Strategic Partnership Agreement between the European Union and its Member States, of one part, and Japan, of the other Part45_{along with the EU-Japan Economic Partnership} Agreement 46_{will be compared.}

1. Cooperation Agreement between the European Community and the Republic of India on partnership and development ‘the EU-India 1993’

This trade agreement was signed on the 20th of December 1993 and entered into force in the 1st of August 1994. It was enacted in order to reinforce and develop the partnership between the contracting parties. The practice of the human rights clause was ‘gradually introduced in the 1990s’.47_{The EU policy that made the inclusion of a human rights clause mandatory in all EU} trade agreement dates from 1995. The entry into force of this treaty dates from a year before, when European regulations made the use of a human rights clause mandatory. However, the EU- India trade agreements contains a human rights clause.

July 2018).

46_{EU-Japan Economic Partnership Agreement (entered into force in 1 February 2019).}

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i. The ‘essential element clause’

The cooperation agreement between the European Community and the Republic of India on partnership and development48 contains its essential element clause in the Article 1 of the trade agreement. The Article 1 of this trade agreement presented the basis and objectives of the agreement. Article 1(1) enacted that ‘Respect for human rights and democratic principles is the basis for the cooperation between the Contracting Parties and for the provisions of this Agreement, and it constitutes an essential element of the Agreement.’

As for the CETA, the essential element clause is incorporated in the Strategic Partnership Agreement in its Article 2(1) ‘Respect for democratic principles human rights and fundamental freedoms, ad laid down in the Universal Declaration of Human Rights and existing international human rights treaties and other legally binding instruments to which the Union or the Member States and Canada are party, underpins the Parties’ respective national and international policies and constitutes an essential element of this Agreement’.

Therefore, the positioning of the article in these two trade agreements differs. The essential element clause in the cooperation agreement between the European Community and the Republic of India on partnership and development can be found in the treaty itself in Article 1, whereas, the CETA does not contain the human rights clause in its agreement but in another one. Within the EU system of trade agreements, there are different types of agreements: agreements focused mainly on trade and related issues such as the CETA and comprehensive agreements including trade cooperation provisions, but not free trade provisions such as the EU-India. For each type of agreement, the human rights clause has a specific position in the treaty. In this instance, these two trade agreements are in line with the practice agreed within the EU.49

Furthermore, the wording of the clause is not exactly the same. In fact, the ‘sample’ of the essential element clause used in most agreements was drafted by the Commission Communication in 1995. It is therefore clear that the EU-India 1993 does not have the same wording. The human rights clause in this trade agreement is limited and has ‘quite different

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forms and legal effects’50_{than other human rights clauses in European trade agreements,} including the one with Canada.

The human rights clause in the CETA mentions international human rights norms such as the Universal Declaration of Human Rights and ‘existing international human rights treaties’. The human rights clause in the EU-India 1993 does not refer to any international norms as human rights treaties. It is just a general respect for human rights and democratic principles. The ‘essential element clause’ in the Cotonou Agreement, has also no reference to international norms.51

Therefore, it can be noted that the CETA’s ‘essential element clause’ is more precise than the one in the EU-India 1993 since the clause refers to specific international treaties. However, the EU-India 1993 contains the clause in its first article and within its agreement, which is not the case for the agreement with Canada. The fact that the Article 1 refers to the human rights clause shows the importance given to human rights rules. This can be explained by the fact that India is one of the countries with low respect for human rights and therefore the EU wanted to insist on human rights from the very beginning of the trade agreement.

ii. The ‘non-execution clause’

The EU-India 1993, an early EU trade agreement does not contain an ‘non-execution clause’.52_{This trade agreement concluded with the Republic of India was one of the first} commercial agreements made with third countries that included a human rights clause. The first European agreements that included an explicit clause of human rights were signed with several Latin American and Central and Eastern European countries in 1990 such as the 1992 agreement with Brazil or the Andean Pact countries.53

A non-execution clause permits involved parties in case the state party violates the human rights principles, mentioned in the ‘essential element clause’, to authorise the other party ‘to

Lecturer in Law, Faculty of Law.

4.

Lecturer in Law, Faculty of Law, 84.

53_{European Parliament report, On the human rights and democracy clause in European Union agreements, (23}

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respond by means of unilateral appropriate measures’.54 In the majority of time, these appropriate measures can be taken without the need of prior consultations.55

In this case with the CETA, the non-execution clause is included in the SPA in Article 28 (7) stated that ‘In addition, the Parties recognise that a particularly serious and substantial violation of human rights or non-proliferation, as defined in paragraph 3, could also serve as grounds for the termination of the EU-Canada Comprehensive Economic and Trade Agreement (CETA) in accordance with Article 30.9 of that Agreement’. 56

Therefore, the ‘non-execution clause’ in the CETA is different to the ones in other trade agreements as there is no indication of ‘appropriate measures’. Theses appropriate measures can be the termination of the trade agreement as a last resort, which is directly the case in the CETA, but also trade sanctions or suspensions for example.

The fact that the EU-India trade agreement, lacks a ‘non-execution clause’ illustrates the idea that the ‘essential element clause’ cannot be as effective as if there were an ‘non-execution clause’.57_{The effectivity of the human rights clause is achieved through the ‘non-execution} clause’ as the possible sanctions are subject to that clause. However, the European Court of Justice (ECJ) in 1996 rendered a judgement concerning the trade agreement EC-India 1993 ‘Portugal v Council’58_{which did not rule in favour of Portugal but against. Portugal argued}

that the conclusion of the EC-India 1993 was a shared competence between the EU and the Member States.59 However, it was an exclusive competence of the Union. Moreover, the ECJ recalled the importance of the human rights clause and its legal effects60. In fact, the ECJ ‘has given its approval to theses clauses and has confirmed that they may be, amongst other things, an important factor for the exercise of the right to have a development cooperation agreement suspended or terminated in case the non-member country has violated human rights’.61 Despite the fact that the EC-India 1993 did not contain a ‘non-execution clause’, the ECJ through this

Lccturer in Law, Faculty of Law, 84.

55_Ibid.

56_{, Strategic Partnership Agreement (Canada-European Union) (signed in 30 October 2016, entered into force in}

57_{Ibid 85.}

58_{Case C-28/94, Portugal v Council [1996] ECR I-6177.} 59_Ibid.

60_Ibid.

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trade agreement stressed the importance of this clause, which has been beneficial for subsequent trade agreements.

By comparing the CETA and the EU-India 1993, the idea that emerges is that there has been an evolution regarding human rights clauses. However, the human rights clause contained in the EU-India 1993 has influenced the model clause made in the Communication Commission in 1995.62 On the one hand, the ‘essential element clause’ in the CETA is obviously more comprehensive and refers to international human rights norms, while the agreement with the Republic of India lacks this reference. On the other hand, the human rights clause of the trade agreement with India is less effective than the one of the CETA. The human rights clause in the EU- India agreement is the premise of these clauses.

2. Partnership agreement between the members of the African, Caribbean and Pacific

Group of States and the European Community and its Member States ‘Cotonou

Agreement’

The ‘Cotonou Agreement’63 is ‘the most comprehensive partnership agreement between developing countries and the EU’.64_{It is an agreement with African, Caribbean and Pacific} (ACP) countries65 and replaces the 1975 Lomé Convention that expired in February 2000.66 It was adopted the 23 June 2000, and it entered into force on the 1st April 2003 and was amended twice: the first time on the 22nd December 2005 and the second time on the 22nd June 2010. The last version of the Cotonou Agreement entered into force on the 27th of January 2017. The objective of this agreement was ‘to promote and expedite the economic, cultural and social development of the ACP States, with a view to contributing to peace and security and to promote a stable and democratic environment’.67 The last amendment was made in order to reinforce the partnership between the ACP States and the EU.68 The Cotonou Agreement is

62_Ibid.

64_{European Council, ‘The Cotonou Agreement’ (2000)}

<https://www.consilium.europa.eu/en/policies/cotonou-agreement/>

65_Ibid.

66_{Lomé Convention (signed 28 February 1975).}

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similar to the CETA since it is the framework agreement that refers to human rights clauses for the various free trade agreements with ACP countries.69

The Cotonou Agreement in its article 9 (2) ‘Essential Elements and Fundamental Element’ stated that: ‘Respect for human rights, democratic principles and the rule of law, which underpin the ACP-EU Partnership, shall underpin the domestic and international policies of the Parties and constitute the essential elements of this Agreement’.70

As for the CETA, the essential element clause is incorporated in the Strategic Partnership Agreement in its Article 2(1) ‘Respect for democratic principles human rights and fundamental freedoms, ad laid down in the Universal Declaration of Human Rights and existing international human rights treaties and other legally binding instruments to which the Union or the Member States and Canada are party, underpins the Parties’ respective national and international policies and constitutes an essential element of this Agreement’.71

Therefore, the ‘essential element clause’ in the Cotonou Agreement does not refer to any international norms compared to the one in the CETA.72 However, the article 9 of the Cotonou Agreement contains more elements on human rights, democracy and rule of law protection than the SPA with Canada: article 9 (1) ‘Cooperation shall be directed towards sustainable development centred on the human person, who is the main protagonist and beneficiary of development; this entails respect for and promotion of all human rights; Respect for all human rights and fundamental freedoms, including respect for fundamental social rights, democracy based on the rule of law and transparent and accountable governance are an integral part of sustainable development.’73

4.

European Community and its Member States (signed 23 June 200, entered into force 1 April 2003), art 9.

April 2017), article 2(1).

4.

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The preamble of the Cotonou Agreement refers also to several ‘international instruments relating to human rights’.74_{In fact, ‘the seventh and eight recitals of its Preamble recall not only} the Universal Declaration of Human Rights (mentioned in the ‘essential element clause’ of the CETA), but also, […], the International Covenants75, the Convention on the Rights of the Child76, the Convention on the Elimination of all forms of Discrimination against Women77, the International Convention of on the Elimination of all forms of Racial Discrimination78, the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe79, the African Charter on Human and Peoples’ Rights80 and the American Convention on Human Rights81’.82

It can be noted that even if the ‘essential element clause’ of the Cotonou Agreement did not refer to any international human rights such as the ‘essential element clause’ in the SPA between Canada and the EU, the preamble and the content of the human rights clause is more complete than the one in the SPA with Canada. This can be explained by the fact that Canada is one of the best performers in the area of human rights, with an entrenched democracy and numerous freedoms and rights for its citizens83_{. That is why, the EU did not have to insist on} all the international instruments on human rights. The fact that the ‘essential element clause’ mentions the Universal Declaration of Human Rights was sufficient because it is complete. Moreover, being one of the best countries respecting human rights, unlike the ACP countries, Canada has ratified all the international conventions relating to human rights. According to a study made by the DG Trade, V-DEM, Freedom House, the majority of the worst performers

74_{Jan Vanhamme, Formation and enforcement of customary international law: the European union’ contribution,}

at 143

75_{the International Covenant on Civil and Political Rights, (16 December 1966), UNTS/ the International}

Covenant on Economic, social and cultural rights (16 December 1966) UNTS.

76_{The Convention on the Rights of the Child (7 March 1990), UNHR.}

77_{The Convention on the Elimination of all forms of Discrimination against Women (18 December 1979),}

UNGA.

78_{The International Convention of on the Elimination of all forms of Racial Discrimination (4 January 1969),}

UNGA.

79_{European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November}

1950, entered into force 3 September 1953).

80_{African Charter on Human and Peoples’ Rights (27 June 1981).}

81_{American Convention on Human Rights (22 November 1969).}

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in terms of human rights among the parties to EU trade agreements in 2018, are from ACP countries.84

Thus, the human rights clause in the Cotonou Agreement is the direct application of the clause carried out by the commission in 1995, which inspired that of the SPA between Canada and the EU. The most notable difference between both human rights clauses is that one refers to international human rights norms within the clause and the other not. In fact, there are three type of human rights clauses: one referring to any international human rights instruments, one referring to international human rights instruments and one referring to international human rights instruments and European norms.85

The non-execution clause of the Cotonou Agreement is stated in its article 96 (2.a)‘ If, despite the political dialogue on the essential elements as provided for under Article 8 and paragraph 1a of this Article, a Party considers that the other Party fails to fulﬁl an obligation stemming from respect for human rights, democratic principles and the rule of law referred to in Article 9(2), it shall, except in cases of special urgency, supply the other Party and the Council of Ministers with the relevant information required for a thorough examination of the situation with a view to seeking a solution acceptable to the Parties. To this end, it shall invite the other Party to hold consultations that focus on the measures taken or to be taken by the Party concerned to remedy the situation in accordance with Annex VII’.86_{The article 96 (2.c)} stated that ‘the ‘appropriate measures’ referred to in this Article are measures taken in accordance with international law, and proportional to the violation. In the selection of these measures, priority must be given to those which least disrupt the application of this agreement It is understood that suspension would be a measure of last resort.’87

As for the CETA, the non-execution clause included in the SPA in its Article 28 (7) stated that ‘In addition, the Parties recognise that a particularly serious and substantial violation of human rights or non-proliferation, as defined in paragraph 3, could also serve as grounds for

84_{Ibid 7.} 85_{Ibid 4.}

86_{Cotonou Agreement, art 96 2(a).} 87_{Ibid, art 96 (2.c).}

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the termination of the EU-Canada Comprehensive Economic and Trade Agreement (CETA) in accordance with Article 30.9 of that Agreement’. 88

The ‘non-execution clause’ in the Cotonou Agreement such as the ‘essential element clause’ is more elaborate than the one found in the SPA with Canada. It is also the direct application of the non-execution clause drawn up by the Commission in 1995.89 Article 96 of the Cotonou Agreement provides a procedure to deal with violations of human rights and democratic principles , so if a Party has failed to fulfil its obligations according to Article 9 of the Agreement, consultations will be held’.90_{Moreover, on the basis of the principle of} proportionality, the measures that ‘least disrupt the application of the Agreement’ have to be considered.91 The last resort of sanction in the Cotonou Agreement is the suspension of the Agreement. 92

The EU has applied this non-execution clause only under the Cotonou Agreement.93_{It has} invoked the human rights clause in 24 cases.94_{So far, the EU has taken measures against 10} countries of the ACP countries.95_{It has taken sanctions against the Central African Republic,} Côte d’Ivoire, the Fiji Islands, Guinea, Guinea-Bissau, Haiti, Liberia, Mauritania, Togo and Zimbabwe.96 For example, the reduction of aid was taken as measure against Guinea and Liberia because of the deterioration of their democracy principles.97 The measures against Guinea were taken under the Council Decision 2005/321/EC of 14 April 200598 with consultation with the Republic of Guinea under article 96 of the Cotonou Agreement. The measures against Liberia were taken under Council Decision 2003/631/EC of 25 August 200399

91_Ibid. 92_Ibid.

9.

94_Ibid

96_Ibid. 97_Ibid.

98_{Council Decision 2005/321/EC of 14 April 2005 concluding consultations with the Republic of Guinea under}

Art. 96 of the Cotonou Agreement, OJ L 104/33 (2005).

99_{Council Decision 2003/631/ EC of 25 August 2003 adopting measures concerning Liberia under Art 96 of the}

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under article 96. Measures have rarely been applied because of a deterioration of human rights or as a rule of law, however but more often because of flawed elections.100 Hence, it can be noted that the most severe sanction was to slow down economic aid for developing countries since trade agreements before the CETA did not mention the possibility of termination of the agreement. As aforementioned, the non-execution clause in the SPA, which refers to the termination of the CETA is the most severe clause adopted in EU law. Therefore, the human rights clause in the CETA should impact the drafting of that clause. This should set a precedent that will have to be adopted for all other trade agreements. The EU preferred to be more severe with Canada, despite some reluctance on its part with regard link commercial and political objectives, rather than with countries that are less respectful of human rights such as China or India.101 It could have created a dangerous precedent.102

To conclude, the Cotonou Agreement is a perfect illustration of the human rights clause drafted by the Commission in 1995 for its ‘essential element clause’ and its ‘non-execution clause’. Such as the SPA with Canada, the Cotonou Agreement is a Partnership agreement which establishes a framework agreement for relations between the EU and the ACP countries. The human rights clause did not refer directly to trade agreement in particular such as the SPA with Canada because of the fact that this agreement is a multilateral one with several ACP countries and the Member States of the EU. However, the Cotonou Agreement is more elaborate, due to a stronger reference to international human rights laws in its preamble, even if in the ‘essential element clause’, there is no reference to any international human rights norms. However, the SPA with Canada, with cross reference to the CETA, is stricter in terms of the consequence of the non-execution clause because the sanction is the termination of the trade agreement.

100_{Ionel Zamfir, ‘Human Rights in EU trade agreements’ (July 2019), European Parliamentary Research}

Service, 9.

101_Ibid. 102_Ibid.

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3. The Strategic Partnership Agreement between the European Union and its Member States and Japan along with the Economic Partnership Agreement

The Strategic Partnership Agreement (SPA) between the European Union and Japan was adopted on the 17th of July 2018 and the entry into force is still pending today. The Economic Partnership Agreement (EPA) between the European Union and Japan entered into force on 1st of February 2019. This trade agreement is the same type as the CETA: they are both agreements focused mainly on trade and related issues, meaning that the human rights clause is not included in the trade agreement itself but in another agreement, which is the SPA.

The SPA with Japan does not contain an ‘essential element clause’ such as the other agreements. In its Article 2 (1) that refers to ‘Democracy, the rule of law, human rights and fundamental freedoms’, there is no mention of ‘essential element’. It states that ‘The Parties shall continue to uphold the shared values and principles of democracy, the rule of law, human rights and fundamental freedoms which underpin the domestic and international policies of the Parties. In this regard, the Parties reaffirm the respect for the Universal Declaration of Human Rights and the relevant international human rights treaties to which they are parties.’103

As for the SPA with Canada Article 2 (1) states ‘Respect for democratic principles human rights and fundamental freedoms, ad laid down in the Universal Declaration of Human Rights and existing international human rights treaties and other legally binding instruments to which the Union or the Member States and Canada are party, underpins the Parties’ respective national and international policies and constitutes an essential element of this Agreement’104

It can be noted that the clauses are very distinct. The wording used in the SPA with Japan is different to the one elaborated in the 1995 Commission. However, the human rights clause in the SPA with Japan mentions the ‘Universal Declaration of Human Rights and the

July 2018), art 2 (1).

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relevant international human rights treaties to which they are parties’.105_{Such as the clause}

in the SPA with Canada, this clause is following at least the standard formulation of the ‘essential elements’ concerning the reference to international norms.106

Another point of difference is that mentioning ‘essential element of the basis of the cooperation under this Agreement’ is not part of the article referring to the Democracy, the Rule of law, Human rights and Fundamentals freedoms but it is part of the Article 43107 referring to Dispute Settlement. Therefore, it can be noted that there is no ‘essential element clause’ as drafted in the Commission 1995 in the SPA with Japan.

During the negotiations of the SPA which were conducted in parallel to the ones of the EPA, the objective was to ‘upgrade their political relation and give a boost to their strategic partnership’.108_{The context at this time was the withdrawal of the US, their common ally, from} some international agreements such as the Trans-Pacific Partnership (TPP)109_{and the Paris} Agreement on climate change110_{. As a result, the EU and the Japan wished to have a bilateral} treaty that united them politically.111_{The negotiations of both agreements, SPA and EPA, were} accelerated because of the context mentioned above. 112

According to analysts the element on ‘which the parties differed during the negotiations was the integration of the “essential element clause”’.113 The main reason concerning the human rights’ protection was related to the death penalty which is still allowed in Japan.

It can be emphasised that the SPA with Canada and the CETA, negotiated before, did not impact the human rights clause in the SPA with Japan with respect to the ‘essential element clause’. The human rights clause, which is supposed to be mandatory for all trade agreements with the EU, is still subject to the authorization of the third State. The ineffectiveness of this clause can be observed, despite progress made before such as with the CETA with Canada.

July 2018) art 2 (1).

Service, 4.

July 2018), art 43.

108_{Enrico D’Ambrogio, the EU-Japan Strategic Partnership Agreement (SPA), European Research Service,}

(January 2019), 4.

109_{Transpacific Partnership (4 February 2016).}

110_{Paris Agreement to the United Nations Framework Convention on climate change (12 December 2015).} 111_{Enrico D’Ambrogio, the EU-Japan Strategic Partnership Agreement (SPA), European Research Service,}

(January 2019), at 4.

112_Ibid. 113_Ibid.

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The non-execution clause is the clause that ‘enables the parties to take appropriate measures’ in a case of a breach of the human rights clause.114_{In the case of the SPA with} Japan, no proper ‘non-execution clause’ is included in this treaty. As aforementioned, Japan was against the idea to link their trade relations with the EU with human rights purposes. They opposed including an ‘essential element clause’ which is the first part of a human rights clause. Obviously, they did not want to formulate a non-execution clause either. 115 However, the Article 43(4) of the SPA ‘Dispute Settlement’ states that ‘The Parties consider that a particularly serious and substantial violation of the obligations described in paragraph 1 of Article 2 […], which respectively constitutes an essential element of the basis of the cooperation under this Agreement […]’.116_{The Article 2 of the SPA relates to} ‘Democracy, the rule of law, human rights and fundamental freedoms’.117_{It can be noted that}

the violation of democracy, the rule of law or/and human rights are considered ‘essential element’ which means that the breach of these principles result in the termination of the treaty under Article 48.118

Moreover, equal to the Article 28(1) of the SPA with Canada that states ‘In addition, the Parties recognise that a particularly serious and substantial violation of human rights’, the Article 43 (4) of the SPA with Japan uses the same wording. Therefore, the explicit human rights language was taken over from the SPA with Canada. Some scholars argue that it can be astounding that such an explicit language is included in agreements with countries such as Japan or Canada.119 According to them, the EU decided to incorporate these explicit languages only to have consistency and to create a precedent for other States less compliant with human

Service, 8.

115_{Enrico D’Ambrogio, the EU-Japan Strategic Partnership Agreement (SPA), European Research Service,}

(January 2019), at 4.

July 2018), article 43 (4)

117_{Ibid, art 2.} 118_{Ibid, art 48.}

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rights.120 The human rights clause in the CETA and the SPA with Canada had an impact on the drafting of this clause concerning this point. However, in general, the CETA did not change the importance of the inclusion of that clause. As aforementioned, the EU remains subject to the willingness of the third State party. The CETA did not have a real impact on this clause since a treaty signed after, in this case the SPA and EPA with Japan, was not bound by its practice of terminating the contract in the event of a human rights violation.

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28 IV- The deficiencies noted with regard to human rights clauses and solutions

to improve them

In this last Chapter of the thesis, after analysing the human rights clause of the CETA and comparing it with other clauses from EU agreements, it is essential to study the existing deficiencies/inadequacies of human rights clauses. Thereafter, the last part will be dedicated to recommendations in order to improve the human rights in EU trade agreements.

1. The deficiencies of human rights clauses in EU trade agreements

The main objective of human rights clauses in EU trade agreements is to link human rights to trade law in order to emphasis the supremacy of human rights against economic considerations.121

The Treaty of Lisbon122 revised the Article 3(5) and 21 of the Treaty on EU123 (Maastricht Treaty) and it included the protection of human rights in its external relations as well as the incorporation of this protection into European primary law.124 The Article 3 (5) states : ‘In its relations with the wider world, the Union shall uphold and promote its values [as defined in Article 2 TEU] and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter’125

In practice, human rights clauses in EU trade agreements contain many shortcomings despite the fact that the CETA tried to improve the practice and the draft of this clause. Through its ‘non-execution clause’ it allowed the termination under Article 30 of the CETA in case of

121_{Ionel Zamfir, ‘Human Rights in EU trade agreements’ (July 2019), European Parliamentary Research Service}

2.

122_{Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European}

Community [2007] OJ C306/01.

123_{Treaty on European Union (Maastrict Treaty).}

The Human Rights Clause in the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union (EU)