THE HUMAN RIGHTS CONDITIONALITY CLAUSES OF THE EUROPEAN UNION The inconsistency in its application
By
Julia León González 12808687
THESIS SUBMITTED TO STEVEN BLOCKMANS
In partial fulfilment of the requirements for an LLM degree in
EUROPEAN UNION LAW
UNIVERSITY OF AMSTERDAM 16 July 2020
ABSTRACT
Since 1995 the European Union, hereafter EU or Union, must include in all its association, cooperation and trade agreements with third countries, human rights conditionality (HRC) clauses which allow to adopt restrictive measures or even suspend the agreement if the other party violates human rights (HR), democratic principles or the rule of law. Until today, the Union has enforced these clauses in an inconsistent manner: only towards countries of one specific Agreement, the Cotonou Agreement (CA), mainly for political rights violations and only by suspending financial aid. The European Parliament (EP) has been very critical towards this situation and has continuously been calling for the Commission and the Council to improve the enforcement of the clauses. However, in the Mugraby case the Court of Justice of the European Union (CJEU) ruled for the first and only time on the matter, stating that the Union has a wide discretion when it comes to enforce the clauses, and therefore, questioning the arguments raised against the inconsistency of the Union. Nevertheless, the Court found that the discretion could be breached, and even though it did not specify in which cases, inspiration can be drawn from other CJEU jurisprudence. After filling that gap and finding several Union´s obligations which will bind it to the enforcement of the clauses in serious and manifest violations of human rights, a recommendation is given regarding how to legally challenge the inconsistency of the Union: through an action under article 265 of the Treaty of the Functioning of the European Union (TFEU) against the Council and the Commission.
TABLE OF CONTENTS
I. METHODOLOGY ... 1
II. INTRODUCTION ... 1
Human rights in EU Treaties ... 1
EU Trade and Association Agreements ... 2
Origins and chronological development of the clause ... 4
How the clause stands now ... 5
III. THE APPLICATION OF THE CLAUSE ... 7
General overview ... 7
Specific cases of application ... 10
The non-cases ... 12
IV. THE MUGRABY CASE ... 14
The dispute ... 14
Case analysis ... 15
Other relevant case law ... 18
V. BEHIND THE INCONSISTENCY OF THE EU ... 21
VI. THE ROLE OF THE EUROPEAN PARLIAMENT ... 24
VII. CHALLENGING THE EU INCONSISTENCY ... 27
VIII. CONCLUSION ... 30
1
I. METHODOLOGY
This thesis intends to provide a recommendation for challenging, within EU law, the following issue: the inconsistency of the EU towards the enforcement of the HRC clauses introduced in its association, cooperation and trade agreements. In order to do this, first I will study the origins and developments of the HR clauses, then, I will look into the cases in which the clauses were and were not applied, and finally, I will analyse the CJEU judgment on HR clauses. Afterwards, I will be able to draw some conclusions and identify the main problem to be solved before proposing a solution: the wide discretion granted to the EU seems to validate its inconsistency.
Subsequently, to have a better understanding of the issue, I will analyse the potential causes for this inconsistency and the reactions and calls for solutions of the EP. Then, I will abandon a more of an external and descriptive perspective to use an internal and prescriptive one in order to make a recommendation.
The sources that I have used go from several academic articles, EU law books and EU institutions websites, to different EU documents and reports from the Council, the Commission and the EP. I have also used CJEU judgments, Advocates General´s (AG) Opinions and newspapers articles. These sources helped me understand, from an objective perspective, the reality of the situation of the HR clauses, but also to form my own opinion which allowed me to recommend a solution.
II. INTRODUCTION
Human rights in EU Treaties
The EU reflects its commitment to human rights, democracy and the rule of law throughout the whole text of the Treaty of the European Union (TEU). This means that `The promotion of human rights is a core element of the EU´s identity as a normative power´.1 If we delve into the Treaty´s provisions, we find that the preamble already mentions the EU attachment to the
1 Daniela Donno, Michael Neureiter `Can human rights conditionality reduce repression?
2
principles of democracy, human rights and the rule of law. Then, article 2 establishes those principles as EU values. Article 3.5 lays down an actual obligation for the Union: it shall contribute to the protection of human rights in its relations with the wider world, and, in the same direction, article 21.1 establishes that the Union's action on the international scene shall be guided by the principles of democracy, rule of law and human rights. Finally, article 6 recognises that the human rights protected by the ECHR are general principles of EU law and the Charter, which has the same binding force than the Treaties, obliges the Member States (MS) in article 51 to ‘promote the application’ of fundamental rights.2
Therefore, when the EU enters relations with third countries, it must make sure that along the way it complies with all these provisions. This way, article 21.2(b) TEU establishes that the Union´s policy on external action must have as an objective the consolidation and support of democracy, the rule of law, human rights and the principles of international law. In conclusion, Horng´s words can be brought to state that `The EU is well placed to promote democracy and human rights´.3
EU Trade and Association Agreements
This thesis focuses on a very specific branch of the EU´s external action which is governed by the due respect owed to human rights and democracy: the EU trade and association agreements. As it is well known, the EU has several objectives to accomplish and which are the motive for the signing of these international agreements (IAs) with third countries: develop relations and build partnerships with third countries (art.21.1 TEU), the promotion of trade between MS and third countries (art.32 TFEU) and the progressive abolition of restrictions on international trade (206 TFEU). The problem is that trade liberalisation does not genuinely bring improvements for the living standards in third countries, moreover, it can negatively affect the environment and increase poverty among the population4. But the EU is aware: the Council of the EU has stated that `an openness to trade, combined with good governance and sound domestic policies, is a major contributor to inclusive growth and sustainable development, and thus to improved
2 Anna Micara `Human rights protection in new generation’s free trade agreements of the European Union´ [2018]
The International Journal of Human Rights 1447, 1450.
3 Der-Chin Horng `The Human Rights Clause in the European Union’s External Trade and
Development Agreements´ [2003] European Law Journal 677, 677.
4 Isabelle Loannides `The effects of human rights related clauses in the EU-Mexico Global Agreement and the
EU-Chile Association Agreement. Ex-Post Impact Assessment´ PE 558.764 [2017] EPRS European Parliamentary Research Service, Ex-Post Impact Assessment Unit 4, 16.
3
human rights conditions´.5 This way, the EU links trade with human rights in its IAs and
therefore, although the legal basis for these agreements can differ (articles 207, 217 and 218 TFEU), there is something that always remains the same: in all of them the EU must include an HRC clause. Furthermore, these are mostly mixed agreements that allow the EU to be seen by third countries as a powerful bloc in the sense that they will be under more economic pressure to respect HRC than if a sole MS would be the one assuming this kind of conditionality policy´.6
This thesis will focus on the HR clauses. However, it must be kept in mind that HRC operates through other EU instruments and therefore the clauses are not the only way in which the Union, within the context of partnership, trade and association agreements, tries to promote and safeguard human rights outside the EU. An example of these instruments are the following: The Generalised Scheme of Preferences (GSP). This is a system launched by the United Nations (UN) which the Union successfully adopted. Through the GSP, developing countries benefit from the removal of import duties when introducing their products into the Union under the condition, among others, of respecting a series of conventions on human rights.7 The EU, this way, `unilaterally supports developing countries to achieve sustainable development through trade8´. The Union closely monitors the compliance by the beneficiary countries with
those conventions and if it finds that one of them failed on this task, the Commission will withhold the preferences.9
Budget support. As one of the main elements of EU international cooperation, it `involves direct financial transfers to the national treasury of partner countries engaging in sustainable development reforms´.10 This financial support can be removed if the partner countries do not, among others, respect the EU fundamental values of human rights, democracy and the rule of
5 Council of the European Union, EU Annual Report on Human Rights and Democracy in the World in 2013,
Reference no 11107/14, Brussels, 23 June 2014, p. 47.
6 Diego J Liñán Nogueras and Luis M Hinojosa Martinez, 'Human Rights Conditionality in the External Trade of
the European Union: Legal and Legitimacy Problems' [2001] Colum J Eur L 307, 308.
7 Ibid.
8 The European Commission and the High Representative of the Union for Foreign Affairs and Security Policy,
Joint Report to the European Parliament and the Council on the Generalised Scheme of Preferences covering the period 2018-2019, Brussels 10 February 2020, p.1.
9 The European Commission, Generalised Scheme of Preferences (GSP),
<https://ec.europa.eu/trade/policy/countries-and-regions/development/generalised-scheme-of-preferences/> accessed June 4 2020.
10The European Commission, International Cooperation and Development, Budget Support,
4
law.11 An example is the European Neighbourhood Instrument which states that `assistance to
neighbours will [...] aim for mutual accountability so that it takes greater account of human rights, democracy and good governance when it comes to allocating assistance´.12
Origins and chronological development of the clause
It is since 1995 that the EU adopted as a formal policy to systematically include a HR clause in its trade agreements with third countries.13 Basically, this clause allows each party to take appropriate measures, which can even entail the suspension or termination of the agreement if the other party violates human rights or democratic standards. However, the origins of this practice date back to the seventies, when the European Community (EC) introduced for the first time in its agenda the promotion of human rights outside the borders of the Community.14 From this new position, the EC was concerned about the fact that it was obliged by international treaty provisions to keep granting development aid to countries that were committing serious violations of human rights, like the Central African Empire15 or Uganda.16 After discussing whether the rebus sic stantibus clause could be used in this kind of situations, the EC decided to start including HR clauses in its future IAs.17 Later, in 1986 the Community’s Foreign Ministers reached consensus and declared that respecting and guaranteeing human rights was a `key factor in international relations´ and this way, the promotion of human rights abroad finally became `an official policy goal of the organization´.18 Nevertheless, it was not until
1989 that a legally binding human rights reference appeared on the scene, in the Fourth Lomé Convention.19 According to Liñán and Nogueras, this was the first unambiguous clause with a
11 Ibid.
12 EU Neighbours, The European Neighbourhood Instrument (ENI),
<https://www.euneighbours.eu/en/policy/european-neighbourhood-instrument-eni>, accessed on 4 June 2020.
13 Lorand Bartels `A Model Human Rights Clause for the EU’s International Trade Agreements´ [2014] German
Institute for Human Rights 6, 10.
14 Matthias Maass ´The European Union, Vietnam, and Human Rights as Law: the case of the 1995 EU–Vietnam
framework agreement and its human rights clause´ [2012] Asia Eur J 215, 221.
15 Lorand Bartels `A Model Human Rights Clause for the EU’s International Trade Agreements´ [2014] German
Institute for Human Rights 6, 12.
16 Ionel Zamfir `Human rights in EU trade agreements. The human rights clause and its application´ PE 637.975
[2019] EPRS European Parliamentary Research Service, Member´s Research Service 2, 3.
17 Lorand Bartels `A Model Human Rights Clause for the EU’s International Trade Agreements´ [2014] German
Institute for Human Rights 6, 12.
18 Matthias Maass ´The European Union, Vietnam, and Human Rights as Law: the case of the 1995 EU–Vietnam
framework agreement and its human rights clause´ [2012] Asia Eur J 215, 221.
19 Daniela Donno, Michael Neureiter `Can human rights conditionality reduce repression?
5
proper legal basis20, although it has also been stated that this clause did not really allow to
denounce or suspend an agreement because of human rights violations.21
What it is agreed on is that it was in the early 90s, when the extreme violence began in Yugoslavia and the EC had no clear legal basis under Community law to abandon its agreement with this country22, when the EU initiated the improvement of the clause by two steps.
Firstly, the insertion in the clause of the concept of “essential element” by stating that the respect for democratic principles and human rights constitute an essential element of the agreement. According to Bartels this was not effective `because simply stating that a situation is an ‘essential element’ does not create any obligation for the parties and without an obligation, there cannot be a ‘violation’, which is necessary for this doctrine of treaty law to apply.23
Therefore, the suspension or non-execution clause was subsequently introduced as a `powerful policy instrument´24 providing the parties with the option of adopting “appropriate measures” if there is a violation of an “essential element” of the agreement. Thus, in 1995 the Commission mandated the inclusion of this HR clause in all the cooperation, association and trade agreements with third countries. This way, the EU was finally complying with the consistency required at the time by Article C Title I of the Maastricht Treaty (now art.21.3 TEU) by adopting `a more uniform and coherent approach to human rights and democratic principles´.25
This slow and inconstant development of the HRC clause has been argued to be caused, apart from the incidence of the Cold War, by: `the slow creation of the European Union's own legal and political system in relation to democracy and fundamental rights and freedoms,' and the no less slow and difficult articulation of political cooperation in European external policy´.26
How the clause stands now
20 Diego J Liñán Nogueras and Luis M Hinojosa Martinez, 'Human Rights Conditionality in the External Trade
of the European Union: Legal and Legitimacy Problems' [2001] Colum J Eur L 307, 318.
21 Ionel Zamfir `Human rights in EU trade agreements. The human rights clause and its application´ PE 637.975
[2019] EPRS European Parliamentary Research Service, Member´s Research Service 2, 3.
22 Emilie M. Hafner-Burton ´ The Power Politics of Regime Complexity: Human Rights Trade Conditionality in
Europe´ [2009] Perspectives on Politics 33, 35.
23 Lorand Bartels `A Model Human Rights Clause for the EU’s International Trade Agreements´ [2014] German
Institute for Human Rights 6, 13.
24 Matthias Maass ´The European Union, Vietnam, and Human Rights as Law: the case of the 1995 EU–Vietnam
framework agreement and its human rights clause´ [2012] Asia Eur J 215, 222.
25 Der-Chin Horng `The Human Rights Clause in the European Union’s External Trade and
Development Agreements´ [2003] European Law Journal 677, 683.
26 Diego J Liñán Nogueras and Luis M Hinojosa Martinez, 'Human Rights Conditionality in the External Trade
6
The standard clause mostly used nowadays by the EU is the so-called “Bulgarian clause” in opposition to the “Baltic clause”. The latter was used in 1992 in agreements with Estonia, Latvia, Lithuania and Slovenia and it provided for the possibility of suspension without any type of previous consultation.27 It was considered too severe, so in the next agreements with Bulgaria and Romania the explicit suspension clause was replaced by a general one that established a conciliation procedure28 and allowed the suspension of the agreement as a last resort.29 Therefore, except in the case of a minor number of agreements, HRC clauses stand now as a two linked provisions mechanism:
- First, the essential element clause proclaims the importance that both parties to the agreement grant to the intrinsic values attached to human rights, democracy and the rule of law. Subsequently, the provision establishes `that respect for fundamental human rights and democratic principles as laid down in the Universal Declaration on Human Rights underpin the internal and external policies of the parties and constitute an ‘essential element’ of the agreement´.30
- Then, the suspension clause acts as a legal basis for any of the parties to take appropriate measures in case that any of them violates an essential element of the agreement. This is an `implicit reference´31 to the first clause. Under this provision, restrictive measures
can be adopted and, even though priority must always be given to `those which least disturb the functioning of the agreement´,32 it is also allowed to suspend or terminate
the agreement in whole or in part. This clause offers multiple possibilities which may vary depending on the agreement. For example, regarding the conciliation procedure in the Cotonou Agreement it has been noticed that `there is a tendency to obtain
27 Baltic clause: “The parties reserve the right to suspend this Agreement in whole or in part with immediate effect
if a serious breach of its essential provisions occurs”.
28 Der-Chin Horng `The Human Rights Clause in the European Union’s External Trade and
Development Agreements´ [2003] European Law Journal 677, 678.
29 Emilie M. Hafner-Burton ´ The Power Politics of Regime Complexity: Human Rights Trade Conditionality in
Europe´ [2009] Perspectives on Politics 33, 35.
30 Der-Chin Horng `The Human Rights Clause in the European Union’s External Trade and
Development Agreements´ [2003] European Law Journal 677, 678.
31 P.J. Kuijper, J. Wouters, F. Hoffmeister, G. De Baere and T. Ramopoulos (eds.), The Law of EU International
Relations. Cases, Materials and Commentary on the EU as an International Legal Actor, 2nd edition, Oxford University Press (2015) 279.
32 Lorand Bartels `A Model Human Rights Clause for the EU’s International Trade Agreements´ [2014] German
7
improvements through negotiation rather than immediate suspension or through combination of suspension and negotiation´.33
The introduction of this model clause in the majority of EU IAs demonstrates on one hand, the consensus reached in the Union towards the norms governing conditionality in trade policy34 and on the other hand, that trade partners of the Union have clearly become a `target of EU human rights conditionality´.35
III. THE APPLICATION OF THE CLAUSE
General overview
HRC has been enforced, through the suspension clause, in many cases. However, it has occurred solely under the Cotonou Agreement and never by suspending trade preferences.36 Usually, a suspension of development aid had followed a violation of the democratic principles or the rule of law.37 Thus, many see the clause now as a political clause rather than a HR one.38 Looking deeper into the data, we discover that the European Parliamentary Research Service (EPRS) published a briefing in July 2019 where it stated that until that date, the EU had applied the HRC mechanism by taken appropriate measures under the suspension clause of the Cotonou Agreement in 24 cases39. They also point out that the main reasons for applying the clause were
coup d´états in the first place and flawed elections in the second place. The rest of the triggers have also been related to the violation of democratic standards but only when the political situation in a country `gravely and suddenly deteriorates´.40 Human rights violations alone have
almost never been the reason for the application of the clause, the EPRS concludes that it has
33 P.J. Kuijper, J. Wouters, F. Hoffmeister, G. De Baere and T. Ramopoulos (eds.), The Law of EU International
Relations. Cases, Materials and Commentary on the EU as an International Legal Actor, 2nd edition, Oxford University Press (2015) 279.
34 Isabelle Loannides `The effects of human rights related clauses in the EU-Mexico Global Agreement and the
EU-Chile Association Agreement. Ex-Post Impact Assessment´ PE 558.764 [2017] EPRS European Parliamentary Research Service, Ex-Post Impact Assessment Unit 4, 16.
35 Katharina L. 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 1273, 1275.
36Ionel Zamfir `Human rights in EU trade agreements. The human rights clause and its application´ PE 637.975
[2019] EPRS European Parliamentary Research Service, Member´s Research Service 2, 9.
37 Lorand Bartels `A Model Human Rights Clause for the EU’s International Trade Agreements´ [2014] German
Institute for Human Rights 6, 10.
38 Ionel Zamfir `Human rights in EU trade agreements. The human rights clause and its application´ PE 637.975
[2019] EPRS European Parliamentary Research Service, Member´s Research Service 2, 9.
39 Ibid. 40 Ibid.
8
always been `in conjunction with the first two´.41 As mentioned before, the appropriate
measures taken have only been in relation to EU development aid and cooperation´.42
In 2018 Johanne Døhlie Saltnes published an article in which she undertook a detailed head count of cases where the HRC clause was applied. She focused on the period 1995-2015 and the total number of cases is the same than the one established by the EPRS in 2019, 24, meaning that after 2015 there has been no cases of enforcement. According to Saltnes, and coinciding with the information provided by the EPRS, 15 of 24 cases had as the cause of the HRC clause implementation a coup d´état and 9 out of 24 flawed elections43. However, Saltnes identifies 5 cases in which human rights violations were the reason for the initiation of the clause and other 4 in which a rule of law breach was the trigger.44 In any case, Saltnes does conclude that human rights breaches are only a trigger in few occasions and that `the pattern of implementation [...] focus(es) on clear-cut breaches such as coups and electoral irregularities´.45
Finally, while for the EPRS and Saltnes the “appropriate measures” were only materialized in the suspension of development aid and cooperation, for Loannides and Burton, even if HRC `has never been invoked to justify restrictive trade measures´46 it has indeed served as a basis for trade consultations.47 This data is not necessarily contradictory since, as Donno and Neureiter explain, consultations are the first step in the enforcement of the HR clause mechanism under the Cotonou Agreement. After HRC is triggered, EU officials and its counterparts meet during a maximum of fourth months with the objective of finding a common solution for the situation at stake. Afterwards, if the EU still feels dissatisfied by the improvement steps taken by the counterpart, it will adopt the appropriate measures. Following this approach, Donno and Neureiter found that between 1990 and 2011 consultations were opened under article 96 of the Cotonou Agreement 43 times from which “at least 30” led to “appropriate measures” being taken in the form of aid suspension.48 The difference between
41 Ibid. 42 Ibid.
43 Johanne Døhlie Saltnes `The European Union’s human rights policy: is the EU’s use of the human rights clause
inconsistent? ´ [2018] Global Affairs 277, 282.
44 Ibid. 45 Ibid.
46 Isabelle Loannides `The effects of human rights related clauses in the EU-Mexico Global Agreement and the
EU-Chile Association Agreement. Ex-Post Impact Assessment´ PE 558.764 [2017] EPRS European Parliamentary Research Service, Ex-Post Impact Assessment Unit 4, 32.
47 Emilie M. Hafner-Burton ´ The Power Politics of Regime Complexity: Human Rights Trade Conditionality in
Europe´ [2009] Perspectives on Politics 33, 36.
48 Daniela Donno, Michael Neureiter `Can human rights conditionality reduce repression?
9
the 24 cases mentioned before and the 30 cases mentioned by Donno and Neureiter could be explained by the fact that in the first studies, the counting starts from 1995, while in the other the counting starts from 1990. For example, in 1992 the EU suspended aid to Malawi due to the deterioration of democratic principles49 and the same happened to Nigeria in 1993 because of the irregularities committed in the national elections.50
Therefore, we can conclude that the HR clause has been applied in several cases, although exclusively under the Cotonou Agreement and mostly because of violations of democratic and rule of law principles, being the suspension of development aid and cooperation the only “appropriate measure” actually enforced. Additionally, it has to be mentioned that the inaccuracies regarding the actual number of cases is a consequence of the lack of `dataset on the EU’s enforcement of its HR clause´.51
Finally, it must be indicated that there are cases in which the suspension of an association agreement or the adoption of restrictive measures, even though as a reaction to human rights or democratic principles violations, are not due to the enforcement of a HR clause. It is important to distinguish between these situations in order to rightly assess the actual application of the HR clauses. For example, in 2011 the EU suspended the Cooperation Agreement with Syria because of the human rights violations committed by the later. In the Council Decision it was stated that the common desire of the parties to maintain the UN Charter principles, which was the basis of the Cooperation Agreement, was considered to have been violated.52 However,
the legal basis for this EU act were only article 207 and 218(9) TFEU and not a HR clause, since that commitment to the UN principles was only found in the preamble of the agreement, agreement that moreover lacks a HR clause.53 Another example is the case of the sanctions against Libya,54 which is representative of many others. There is no HR clause enforcement either, but a UN Security Council Resolution implemented by the Union or an autonomous EU sanction based on articles 29 TEU and 215 TFEU.
49 Ibid, 349.
50 Johanne Døhlie Saltnes `The European Union’s human rights policy: is the EU’s use of the human rights clause
inconsistent? ´ [2018] Global Affairs 277, 278.
51 Daniela Donno, Michael Neureiter `Can human rights conditionality reduce repression?
Examining the European Union’s economic agreements´ [2018] Rev Int Organ 335, 347.
52 Council Decision (2011/523/EU) partially suspending the application of the Cooperation Agreement between
the European Economic Community and the Syrian Arab Republic, 2.09.211, OJ L 288/21.
53 Ionel Zamfir `Human rights in EU trade agreements. The human rights clause and its application´ PE 637.975
[2019] EPRS European Parliamentary Research Service, Member´s Research Service 2, 7.
10 Specific cases of application
Continuing with the study of cases where HRC has been implemented, below we will see some of them in detail. They have been chosen with the purpose of showing different triggering situations and different type of countries. However, it has to be kept in mind that all the States that are part of the Cotonou Agreement obviously share various similarities: they are all former European colonies in whose affairs the EU still has “special interest” and they all show aid and trade dependence, although at very different levels.55
On October 2000 the EU suspended financial aid to Fiji due to a coup d´état occurred the 19th of May of that year. Fiji is a country of the Pacific, which is not considered, unlike the rest of the countries that will be mentioned, a least-developed ACP state.56 President Ratu Sir Kamisese Mara was deposed, the democratic government was taken hostage and the Constitution was repealed57. The EU initiated consultations under art.96 AC and concluded them by taken as appropriate measures the suspension of financial aid and programs until `free and fair elections have taken place and a legitimate Government has assumed office´.58
In 2001 the EU decided to cut financial aid on Haiti because of the irregularities in its national elections. In February of that year the Union declared that `after more than eighteen months of political crisis and various conciliation and mediation attempts, the Union considers that, unfortunately, democratic principles are still not upheld in Haiti´.59 The conclusion was that,
since `a satisfactory political solution had not been found in the elections on 21 May 200060´
the Union had `to suspend partially its financial aid through "appropriate measures" laid down in Article 96(2)(c) CA´.61
In 2010 the EU decided to suspend Madagascar´s budgetary aid because of the coup d´état occurred in March 2009 where `president Marc Ravalomanana was deposed by force, and power was transferred by the military to opposition leader´.62 Madagascar is an island situated
55 Daniela Donno, Michael Neureiter `Can human rights conditionality reduce repression?
Examining the European Union’s economic agreements´ [2018] Rev Int Organ 335, 347.
56 Cotonou Agreement, Cotonou 23 June 2000, Annex VI article 1.
57 C/01/141 Fiji Islands - consultations under Article 96 of the ACP-EC Partnership Agreement, 2342nd Council
meeting – General Affairs - Luxembourg, 9 April 2001.
58 Ibid.
59 P/02/7 Declaration on Haiti by the Presidency, on behalf of the European Union Brussels, 24 January 2002. 60 Ibid.
60 Ibid, 349. 61 Ibid.
62Daniela Donno, Michael Neureiter `Can human rights conditionality reduce repression?
11
in front of the south-east African coast, being `politically insulated from mainland Africa´.63
On 6 July 2009, the EU began consultations with Madagascar under article 96 CA, being the main objective `the establishment of transition institutions to manage the transition process and organise presidential and legislative elections within fifteen months´.64 However, by Council Decision 6 June 2010 the Union expressed that no agreement had been reached and that therefore they had to close consultations and adopt appropriate measures. These were, as mentioned before, the suspension of budgetary aid and any payment which directly involved the government and its agencies.65
In 2016 the EU suspended financial aid to Burundi due to the violations of human rights and democratic principles. Burundi is a small state situated in Eastern Africa where in 2003 the “ethnic-based” civil war finished after 12 years with a Peace Agreement that established a power-sharing structure between the Tutsis and the Hutus in which no president could rule for more than two terms.66 The crisis started in April 2015 when President Pierre Nkurunziza declared that he was going to run for his third term: the population began to protest in the streets and the police started to shoot at the crowd.67 After a coup d´état attempt, Nkurunziza was re-elected in July. However, the brutal violence did not stop and people started to flee the country.68 The EU expressed its concerns `at the numbers of victims and cases of serious human
rights violations reported since the beginning of the crisis, particularly those abuses attributed to the security forces´69 and call for a `lasting political solution to be found in the interests of
security and democracy for all Burundi's people´.70 Consultations between the EU and the
Burundian government began in December 2015 with the Union´s objective of finding a compromise to `ensure a swift return to compliance with democratic principles and values, human rights and the rule of law, on the basis of the Cotonou Agreement´.71 In March 2016,
63Ibid, 350.
64 Council Decision (2010/371/EU) concerning the conclusion of consultations with the Republic of Madagascar
under Article 96 of the ACP-EU Partnership Agreement [2010] OJ L 169/13.
65 Ibid.
66 Sthepanie Thomson 'Burundi is on the brink' – a crisis explained´ (World Economic Forum, 9 February 2016)
<https://www.weforum.org/agenda/2016/02/burundi-is-on-the-brink-a-crisis-explained-dc4113d4-af48-4f63-b6b8-6a8c42acb78b/ > accessed 10 April 2020.
67 Ibid. 68 Ibid.
69 Council of the European Union, Foreign Affairs Council Meeting n°3400 Luxembourg `Council conclusions
on Burundi´ [2015] Press release.
70 Ibid.
71Council of the European Union, Foreign Affairs Council Meeting n°3457 Brussels `Burundi: EU closes
12
the EU found that the Burundian government´s measures were not enough, so it declared that it had suspended direct financial support to the state´s administration.72
The non-cases
Saltnes defines the non-cases as those were suspension measures were `not imposed even though breaches of the HR clause have occurred´.73 She studied these situations under the Cotonou Agreement (between 1995-2015) and reached the conclusion that 18 times democratic and human rights violations were not followed by the implementation of article 96. Flawed elections together with human rights violations did not trigger HRC in 11 cases and neither coup d`états in Mali, Burkina Faso, Solomon Islands, Sierra Leone, Congo-Brazaville and Burundi did.74 To this we can add the without repercussions `unconstitutional change of regime´ occurred in 2017 in Zimbabwe.75 This information is surprising given the fact that coup d´états have been the most frequent reason for the EU to start the article 96 procedure. The non-cases approach can be extended outside the Cotonou Agreement, to the rest of association and trade agreements that the EU has signed since no case of HRC enforcement is known. According to Bartels, `the HR clause has not been applied in a wider range of cases involving clear human rights abuses´76 and in the view of Burton, the EU ignores cases `where repression is rampant but trade continues´.77 It could be strange that there is not even one single
case of HRC enforcement (outside the Cotonou Agreement) when the EU has more than 40 agreements with third countries78 where the HR clause is introduced and in which in many
cases the other party is a country where human rights and democratic principle violations have occurred. For example, Egypt, an EU trade partner, suffered an “unconstitutional change of regime” in 2013 and the HR clause laid down in the trade agreement was not enforced.79
72 Ibid.
73 Johanne Døhlie Saltnes `The European Union’s human rights policy: is the EU’s use of the human rights clause
inconsistent? ´ [2018] Global Affairs 277, 278.
74 Ibid, 283.
75 Ionel Zamfir `Human rights in EU trade agreements. The human rights clause and its application´ PE 637.975
[2019] EPRS European Parliamentary Research Service, Member´s Research Service 2, 9.
76 Lorand Bartels `A Model Human Rights Clause for the EU’s International Trade Agreements´ [2014] German
Institute for Human Rights 6, 10.
77 Emilie M. Hafner-Burton ´ The Power Politics of Regime Complexity: Human Rights Trade Conditionality in
Europe´ [2009] Perspectives on Politics 33, 36.
78 Isabelle Loannides `The effects of human rights related clauses in the EU-Mexico Global Agreement and the
EU-Chile Association Agreement. Ex-Post Impact Assessment´ PE 558.764 [2017] EPRS European Parliamentary Research Service, Ex-Post Impact Assessment Unit 4, 16.
79 Ionel Zamfir `Human rights in EU trade agreements. The human rights clause and its application´ PE 637.975
13
However, it comes to attention that some countries which are known in the international community for having committed serious human rights violations, like Israel80 or Russia,81
have no suspension clause linked to the “essential element” in their association agreements with the EU. Instead, it is first stated that the respect for human rights is an essential element of the agreement but then, the suspension clause allowing to take “appropriate measures” only refers to the situations in which one of the parties “considers that the other has not fulfilled its obligations under the agreement”. This missing link in the second clause would make it more difficult to consider human rights violations as a reason for activating the suspension clause. In any case, this situation of non-application of HRC, except for only political violations and only under one specific agreement, leaves the opinion that the EU is `selective and inconsistent’ in its implementation of the clause.82 Civil society actors, academia and even the EP have accused the EU of `not activating conditionality often enough, and of regularly letting human rights violations by partner countries go unpunished´.83
Against the claims of selective attitude of the EU it has been counterargued that the Union includes the clause in almost every trade and association agreement. “Powerful” countries like Canada, Pakistan or Nigeria have accepted EU HRC.84 Therefore, the problem seems to be, not that the EU is selective when introducing the clause (although we have seen that countries like Israel or Russia escape the “strongly” applicable HR clause) but that at the time of enforcing it and choosing against which country and because of which violation, the EU seems to act inconsistently.
80 Israel has an Association Agreement with the EU since June 2000 as well as a Free Trade Agreement. The
UN has condemned Israel for `serious violations of human rights and international humanitarian laws´ (`Israel accused of human rights violations by UNHRC´ TV7 Israel News 1 March 2019). UN Human Rights Report of 2018 pointed out that UN member states as well as regional and international actors demanded Israel´s
accountability for the commission of human rights violations (United Nations Human Rights Office 3, 312).
81 The EU and Russia have an Agreement on Partnership and Cooperation that enter into force in 1997. The
Council Conclusions on EU Priorities in UN Human Rights Fora in 2020 has concerns on Russia and establish to pay careful attention regarding torture, democratic principles and rule of law and discrimination of minorities (Council of the European Union 5982/20. Brussels, 17 February 2020). According to Amnesty International, in the Russian Federation there have been `further restrictions to the rights to freedom of expression, association and peaceful assembly. Religious minorities continued to face harassment and persecution. The right to a fair trial was frequently violated. Torture and other ill-treatment persisted´ (Amnesty International)
<https://www.amnesty.org/en/countries/europe-and-central-asia/russian-federation/> accessed 10 April 2020).
82 Johanne Døhlie Saltnes `The European Union’s human rights policy: is the EU’s use of the human rights
clause inconsistent? ´ [2018] Global Affairs 277, 277.
83 Isabelle Loannides `The effects of human rights related clauses in the EU-Mexico Global Agreement and the
EU-Chile Association Agreement. Ex-Post Impact Assessment´ PE 558.764 [2017] EPRS European Parliamentary Research Service, Ex-Post Impact Assessment Unit 4, 33.
84 Daniela Donno, Michael Neureiter `Can human rights conditionality reduce repression?
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The inconsistency of the Union´s behaviour can be defined in opposition to the concept of consistency which is laid down in article 21(3) TEU. According to this article, the EU should act consistently in its external action, thus, if facing very similar situations of breach of human rights or democratic principles, it should act towards all of them in the same manner. Otherwise, the EU would not be acting according to its well-known values of respect for human rights, democracy and the rule of law. Acting consistently should be easy, since the purpose of the human rights clauses is to establish a formal mechanism that permits the Union to react to any human rights violations committed by any of its partner countries. However, as we have seen before, the Union has overlooked many violations committed by some countries, violations against which it has enforced the clauses when they were committed by other countries. An example is the case of the coup d´états mentioned above. In addition, `The lack of correlation between the degree of the violations of human rights and the level of the sanction´85 is another indication of inconsistency. Moreover, it is difficult to argue against all this since outside the Cotonou Agreement there has been no HRC enforcement at all. Therefore, it could be said that the concept of inconsistency used to describe the EU´s behaviour involves arbitrariness and hypocrisy.
However, the remaining question is the following; can the EU be accused of inconsistent when the Court of Justice of the European Union (CJEU) has concluded in the Mugraby case that HRC can only be enforced when the EU considers it `appropriate´, meaning that it falls under the discretion of the Union?
IV. THE MUGRABY CASE
The CJEU has pronounced itself for the first and only time on the HR clauses in the order of the General Court (GC) in Case T-292/09 Mugraby v Council and Commission and in the subsequent order of the Court of Justice (CJ) following the appeal in case C-581/11 Mugraby vs Council and Commission.
The dispute
Mr M. Mugraby, a human rights lawyer in Lebanon, denounced that since 2003 he had been prevented from practising law in Lebanon as well as being harassed and deprived from his fundamental rights by the Lebanese authorities. According to him, this was due to his criticism
85María Juliá Barceló `The external projection of the European identity: Common Commercial
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of the Lebanese judicial system.86 Consequently, in April 2009 he sent a letter to the
Commission calling it `to suspend the implementation of the ongoing economic aid programmes in view, in particular, of the violation by Lebanon of the clause relating to human rights in Article 2 of the Association Agreement´.87 He also `requested the Council, in its function as part of the EU-Lebanon Association Council, to invite the Commission to recommend that the Council take specific and effective measures regarding the Community aid to Lebanon under the Association Agreement´.88 In May 2009 the Commission replied to Mr Mugraby that the measures he was asking for were not considered to be the effective or appropriate ones.89
In July 2009 Mr Mugraby brought an action to the GC requesting, among others, to find that the Commission and the Council failed to act on his request to take appropriate measures under the Association Agreement and suspend aid to Lebanon.90 However, the GC dismissed the action finding it `in part, clearly inadmissible and, in part, clearly lacking any foundation in law´.91 The Court mainly concluded that both the Commission and the Council enjoy a wide discretion when deciding to implement “appropriate measures” under the Association Agreement and thus, they are not obliged to do so.
On November 2011 Mr Mugraby presented his appeal alleging eight different grounds for the annulment of the order. The sixth one was the “misinterpretation of Articles 2 and 86 of the Association Agreement”, which are the HR clause and the suspension clause. The CJ dismissed the appeal confirming the GC´s ruling on the HR clause.
Case analysis
Article 2 of the Association Agreement between the EU and the Republic of Lebanon contains the standard reference to the respect for human rights as an essential element of the Agreement. Article 86 is the suspension clause which, however, is not like the standard one. It establishes that “If either Party considers that the other Party has failed to fulfil an obligation under his
86 Case C-581/11 Muhamad Mugraby v Council of the European Union and European Commission [2012] OJ C
9 from 12.01.2013, para 11. 87 Ibid. 88 Ibid. 89 Ibid. 90 Ibid. 91 Ibid. para 13.
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Agreement, it may take appropriate measures92”. As we previously saw with Israel and Russia,
this clause does not include the link to the essential element, therefore, it does not implicitly allow the parties to take appropriate measures in case of human rights violations. In any case, the CJEU did not address this issue and gave a ruling which put both types of suspension clauses at the same level. Thus, this analysis will be in principle carried out without differencing between them. Furthermore, it will focus on the relevant points that the Court made in relation to the applicability of the HR clause.
In September 2011 the GC addressed first Article 2 and declared that this clause `is not intended to permit or indeed to impose the recourse to and adoption of measures if the parties to that agreement fail to comply with´93 it. It concluded that this is just a provision stating that the agreement between the parties is based on the respect of human rights and democratic principles94. The Court did not mention anything about the essential element concept so we can confirm that, in any case, this provision itself does not grant any protection to human rights or democratic principles and neither it sets an obligation: alone is not enforceable.
The GC continued to address Article 86 focusing on its wording. Regarding the first part of the clause, it concluded that `each party to the agreement is free to decide whether there may be an infringement of the clause relating to the respect for fundamental human rights laid down in Article 2´.95 As to the second part, the Court found that the use of the word “may” cannot but
mean that `each party to the agreement is free to adopt the measure it regards as being the most appropriate96´. The Court recognized that while suspension is indeed a possible measure, the
Commission `is not obliged to adopt such a measure´.97 It went on to remind us about the “wide margin of discretion” that the EU enjoys when managing its external relations98 and extended
it to the Council and the Commission when dealing with article 86. The Court concluded that Mr Mugraby had not `established that the Council and the Commission have manifestly and gravely disregarded the limits´99 of their discretion. This way, the following key question
92 Euro-Mediterranean Agreement establishing an Association between the EC and its Member States, of the one
part, and the Republic of Lebanon, of the other part, Brussels 14 February 2006, article 86(2).
93 Case C-581/11 Muhamad Mugraby v Council of the European Union and European Commission [2012] OJ C
9 from 12.01.2013, 20. 94 Ibid. 95 Ibid, para 25. 96 Ibid. 97 Ibid. 98 Ibid. 99 Ibid.
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arises: when can it be considered that the Council and Commission have exceeded their discretion?
However, for Mr Mugraby, having the answer to this question would have been irrelevant. The final clarification provided by the GC was: `even assuming that those institutions had manifestly and gravely exceeded the limits of their discretion and had thereby infringed Article 86 of the Association Agreement, that article did not, in any event, give rights to individuals´.100 In July 2012 the CJ gave an order in response to Mr Mugraby´s appeal where it easily rejected all his arguments. Regarding the interpretation of article 2 and 86 by the GC, the CJ mainly reinforced the conclusions of the former without going into detail. On Article 86 it emphasised that `by using the words ‘may take’, the parties to the Association Agreement indicated clearly and unequivocally that each of them had a right, and not an obligation, to take such appropriate measures´.101 When Mr Mugraby claimed that `the GC failed to comply with the wording of Article 2 of the Association Agreement´102 because `the breach of an essential element of a treaty requires that a penalty should be imposed in that regard´103 and therefore it `relied on an unreasonable interpretation of the concept of `broad margin of discretion´´104, the CJ simply stated that those allegations were `too general and imprecise to be assessed by the Court´ and rejected the ground of appeal for being unfounded and inadmissible.105
Therefore, this ruling of the CJ does not add anything. The CJ could have given an interpretation of the concepts “broad margin of discretion” or “manifestly and gravely disregard of the discretion´s limits”, since from the first order it can be understood that the Union can potentially breach its own discretion and thus be obliged to apply the suspension clause (the GC admitted that art.86 could be infringed).
Finally, we can learn two things from Mugraby: first, `individuals cannot enforce HR clauses of bilateral agreements´.106 Second, although the EU´s wide discretional power in the application of the HR clauses has so far, no recognised limits, the Court left the possibility open
100 Ibid. 101 Ibid, para 70. 102 Ibid, para 65. 103 Ibid. 104 Ibid. para 72. 105 Ibid. para 73.
106Antal Berkes ‘The extraterritorial human rights obligations of the EU in its external trade and investment
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for the EU institutions to breach that discretion and therefore, the EU can be accused of inconsistent.
Other relevant case law
As mentioned before, apart from Mugraby there is no other CJEU jurisprudence regarding HRC. Therefore, in order to fill the gap that the Court left concerning the limits of the Union´s discretion, since it did not clarify what would entail a manifest and grave disregard of those limits, we must broaden the case law search to other similar contexts. For example, the CJEU has dealt with numerous cases regarding EU sanctions imposed to individuals or simply concerning the validity of EU Association Agreements. While in all of them it has granted the Union with a broad discretion, it has also given a definition of that discretion:
In Council of the European Union v Manufacturing Support & Procurement Kala Naft Co., Tehran, the Court held that `the EU legislature must be allowed a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments´ and it continued defining that the breach of that discretion would be found `only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue´.107
In Yassin Abdullah Kadi v European Commission the Court held when ruling on EU actions regarding the prevention of terrorism that `the competent Community institution had broad discretion as to what matters to take into consideration for the purpose of adopting economic and financial sanctions´ and continued to explain that ´this discretion concerns, in particular, the assessment of the considerations of appropriateness on which such decisions are based´.108 So far, it seems that the “manifest and grave” breach of the Union´s discretion is linked to the inappropriateness of the institution´s action. However, we still have to define what would entail such inappropriateness. In order to do so, we can look into two cases:
In Zoofachhandel Züpke GmbH and others v European Commission, the Court established that when an EU institution enjoys a wide discretion, it has to observe certain guarantees while exercising it: `the obligation to examine carefully and impartially all the relevant elements of
107 Case C-348/12 P, Council of the European Union v Manufacturing Support & Procurement Kala Naft Co.,
Tehran, ECLI:EU:C:2013:776, 28.11.2013, p.18 para 120.
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the individual case and the obligation to give an adequate statement of the reasons for its decision´.109 The Commission, in particular, has the `duty to gather, in a diligent manner, the
factual elements necessary for the exercise of its wide discretion´.110
However, the judgment that gives a better sense of the discretion that the EU institutions enjoy is the one given by the GC in Front Polisario v Council of the European Union. In its Opinion, the AG Wathelet said that the Union Courts have recognised that the EU `institutions enjoy a wide discretion in the field of external economic relations, which includes the Association and Liberalisation Agreements´.111 The GC also granted a wide margin of discretion to the institutions and had stated that `judicial review must necessarily be limited to the question whether the competent EU institution […] made manifest errors of assessment´.112 Therefore, the GC continued to establish that
where [an] EU institution enjoys a wide discretion, in order to verify whether it has committed a manifest error of assessment, the Courts of the EU must verify whether it has examined carefully and impartially all the relevant facts of the individual case, facts which support the conclusions reached.113
Then, the Court said that that examination was especially necessary since the protection of fundamental rights `is of particular importance´.114 The GC concluded that the Council `in the
examination of all the relevant facts of the present case, with a view to exercising its wide discretion […] should have satisfied itself that there was no evidence of […]´ fundamental rights infringement in the Western Sahara by Morocco.115
Therefore, we can see that when fundamental rights are at stake, it seems that the limits of the EU´s discretion are stricter and that the EU institutions must undertake a thorough analysis of the human rights situation in the partner country in order for its actions not to be inappropriate.
109 Case T-817/14, Zoofachhandel Züpke GmbH and others v European Commission, ECLI:EU:T:2016:157,
17.03.2016, P.18 para 107.
110 Ibid.
111 Case C-104/16 P, Opinion of Advocate General Wathelet, Council of the European Union v Front populaire
pour la libération de la saguia-el-hamra et du rio de oro, ECLI:EU:C:2016:677, 13.09.2016, P.34 para 221.
112 Case T-512/12, Front Polisario v Council of the European Union, ECLI:EU: T:2015:953, 10.12.2015, P.31
para 224.
113 Ibid, para 225. 114 Ibid, para 227. 115 Ibid, para 241.
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Furthermore, we cannot but pay attention to a revealing paragraph of Front Polisario in which the GC held the following when comparing the case at hand with the EU sanctions against Syria:
The argument based on the adoption by the EU of restrictive measures with regard to the situation in other countries is also insufficient to establish a supposed ‘inconsistency’ in EU policy. It should be recalled, as follows, in particular, from the case-law on restrictive measures adopted with regard to the situation in Syria, the Council has discretion in that matter. Therefore, it cannot be criticised for inconsistency on the ground that it adopted restrictive measures with regard to the situation in one country and not in another.116
Therefore, it could be extracted from this statement that inside the CJEU the belief is that the discretion of the Union in its external relations allows it to act in an inconsistent manner or, in other words, that discretion prevents inconsistency. Nevertheless, this argument must be discarded since it manifestly goes against article 21(3) TEU which establishes that the Union shall act consistently in its external relations. This way, even though the EU has discretion regarding HR clauses, it should not be acting inconsistently.
Finally and on another note, in Front Polisario the GC had recourse to the extraterritoriality of the EU Charter when it stated that, in light of the agreement with Morocco, the Council had to guarantee that the goods exported to the Union were not produced under circumstances in which the fundamental rights laid down in the EU Charter were being infringed, like the rights to human dignity, to conduct a business freely or the prohibition to forced labour117. The Council had argued that the Union could not be responsible for the acts committed by other countries in their own territory,118 but the Court answered:
That argument is correct, but it ignores the fact that, if the European Union allows the export to its Member States of products originating in that other country which have been produced or obtained in conditions which do not respect the fundamental rights of the population of the territory from which they originate, it may indirectly encourage such infringements or profit from them.119
116 Ibid, para 156. 117 Ibid, para 228. 118 Ibid, para 230. 119 Ibid, para 231.
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Therefore, this extraterritoriality of the Charter could be, together with the human rights clauses´ mechanism, the GSP and the budget support, another way in which the EU can protect human rights abroad. This way, according to Berkes, `the EU is bound by human rights obligations toward individuals outside the territory of its Member States who are affected by its trade and investment policies´120 and Velluti concluded that the judgment in Front Polisario on extraterritoriality reinforced the idea that the EU should not `undertake trade obligations which would undermine its ability to fulfil its human rights obligations´.121
V. BEHIND THE INCONSISTENCY OF THE EU
We have seen how the EU´s enforcement of the HR clauses has been accused of inconsistent, selective and even `hypocritical´.122 This is problematic, the Union can lose its legitimacy as a strong human rights defender and its credibility as a `normative international actor´.123 Putting aside whether this behaviour is at breach of the EU Treaties, it seems necessary to look at the possible originating causes in order to have a better understanding of the issue and be able to find a solution.
There are many hypothesis and theories regarding the motives of the Union for applying the HR clauses in such a criticized manner. Some have been supported by factual evidence and others discredited by it. After reading and analysing most of these theories I concluded that the following mix of the most reliable and proven theories leads to a valid theory itself which would provide for a general explanation for the inconsistency of the EU.
This theory resides in the disagreement between the actors responsible for taking the decision of enforcing the HR clauses. The MS may have different interests and objectives than those of the Union and therefore, the mixity of many of the agreements holding the HR clauses complicates the adoption of any decision which would fall under the competences of both.124
120Antal Berkes ‘The extraterritorial human rights obligations of the EU in its external trade and investment
policies’ [2018] Europe and the World: A law review 1, 20.
121 Samantha Velluti `The Promotion of Social Rights and Labour Standards in the EU’s External Trade Relations´
[2016] Centre for the Law of EU External Relations: Protecting Human Rights in the European Union´s External Relations 83, 113.
122 Johanne Døhlie Saltnes `The European Union’s human rights policy: is the EU’s use of the human rights clause
inconsistent? ´ [2018] Global Affairs 277, 285.
123 Anne-Carlijn Prickartz and Isabel Staudinger, `Policy vs practice: The use, implementation and enforcement
of human rights clauses in the European Union’s international trade agreements´, [2019] Europe and the World: a law review [23], 22.
124 Lorand Bartels `A Model Human Rights Clause for the EU’s International Trade Agreements´ [2014] German
22
According to Burton, some MS were against the introduction of these clauses and only agreed because they believed the eventual application was `cheap talk´.125 In favour of this theory we
find the fact that in the context of the Cotonou Agreement the EU and the MS agreed to conclude an internal agreement by which the MS authorised the EU Council to be the one adopting the “appropriate measures” under the HR clause by qualified majority126. As we
know, since the Cotonou Agreement´s HR clause is the only one which has been enforced, it could be argued that this internal agreement, which does not exist in relation to any other agreement, eliminates the problem of the internal differences (by removing the problems of unanimity and mixity) and therefore its absence `inhibits the use of the HR clauses´.127
Thus, without this type of internal agreement, the adoption of “appropriate measures” or the suspension of the rest of the EU agreements by the application of its HR clauses is left, in many cases, to a unanimous decision by the Council. If we look into article 218 TFEU, which is the legal basis for the conclusion of the IAs, we see that 218(8) states that the Council shall act by qualified majority throughout the whole procedure. Then, article 218(9) provides the legal basis for the suspension and for the establishment of the Union´s position towards that agreement. According to AG Cruz Villalón, there is a consensus regarding the belief that that part of the article was established just as a result of the introduction of HRC clauses.128 However, this part
of the article does not indicate the voting method by which the Council should decide on suspension. Therefore, should it be assumed that qualified majority is required for the enforcement of the HR clauses? It is not that simple. First of all, because in 218(8) it is established the unanimity requirement for when it comes to association agreements, so, on the contrary, it could also be assumed that in the context of association agreements (which are the ones often holding the HR clauses), the unanimity requirement applies. This is supported by the actus contrarius theory, which is sometimes used by the EU in order to solve the lack of Treaty guidance regarding the process for termination of IAs. According to this theory, `the identical procedure should be followed for concluding and terminating the agreement´.129 This
125 Emilie M. Hafner-Burton ´ The Power Politics of Regime Complexity: Human Rights Trade Conditionality in
Europe´ [2009] Perspectives on Politics 33, 36.
126 Lorand Bartels `A Model Human Rights Clause for the EU’s International Trade Agreements´ [2014] German
Institute for Human Rights 6, 34.
127 Ibid.
128 Case C-399/12, Opinion of Advocate General Cruz Villalón, Federal Republic of Germany v Council of the
European Union, ECLI:EU:C:2014:289, 29.04.2014, para 64.
129 P.J. Kuijper, J. Wouters, F. Hoffmeister, G. De Baere and T. Ramopoulos (eds.), The Law of EU International
Relations. Cases, Materials and Commentary on the EU as an International Legal Actor, 2nd edition, Oxford University Press (2015) 91.
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way, since the association agreements were concluded by unanimity, they should at least, be suspended by unanimity. Therefore, the internal differences inside the Council may be hindering the enforcement of the HR clauses.
It may seem that this theory forgets agreements which are not required to be adopted by unanimity. However, some of them might have needed unanimity if they cover a field for which unanimity is required (art.218(8) TFEU). In any case, this is not an absolute theory, it aims to explain the lack of enforcement of HRC in general but it does not intend to cover every case of non-application.
The above-mentioned internal differences can generate from diverse reasons. Each MS has its own priorities so when facing the dilemma `international trade law v international human rights law´130 some of them resist adopting restrictive measures. For example, because they believe that the withdrawal of trade benefits can worsen the HR violations situation,131 because they maintain a special trade relationship with the targeted country,132 or simply because they consider trade should not be affected by HR considerations since the EU has other instruments to address HR violations.133 Furthermore, even the EU seems to prefer in certain situations positive rather than negative conditionality,134 like the choice of incentives instead of sanctions in the context of EU-Mexico Global Agreement.135 In any event, we cannot know with certainty
the reasons that lead a MS to choose trade over human rights protection, but we see that they are able to `impose their will over the defence of those values´ within the Council.136
The Commission, which has to propose the adoption of appropriate measures or the suspension of the agreement to the Council, might be suffering from this conflict of interests as well, or simply sees the prospect of this internal differences trumping the enforcement of the HR clauses as a deterrent factor for considering the starting of the procedure. In the end, as many authors
130 Diego J Liñán Nogueras and Luis M Hinojosa Martinez, 'Human Rights Conditionality in the External Trade
of the European Union: Legal and Legitimacy Problems' [2001] Colum J Eur L 307, 335.
131 Anna Micara `Human rights protection in new generation’s free trade agreements of the European Union´
[2018] The International Journal of Human Rights 1447, 1453.
132 Anne-Carlijn Prickartz and Isabel Staudinger, `Policy vs practice: The use, implementation and enforcement
of human rights clauses in the European Union’s international trade agreements´, [2019] Europe and the World: a law review [23], 22.
133 Ibid. 134 Ibid, 1454.
135 Isabelle Loannides `The effects of human rights related clauses in the EU-Mexico Global Agreement and the
EU-Chile Association Agreement. Ex-Post Impact Assessment´ PE 558.764 [2017] EPRS European Parliamentary Research Service, Ex-Post Impact Assessment Unit 4, 44.
136 Diego J Liñán Nogueras and Luis M Hinojosa Martinez, 'Human Rights Conditionality in the External Trade
