Non-trade issues in EU trade policy: the EU promotion of LGBTI Human Rights

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Faculty of Humanities

Master of Arts in International Relations & European Union studies

Non-trade issues in EU trade policy: the EU promotion of LGBTI

Human Rights

RQ: To what extent does the EU effectively promote LGBTI rights when conducting trade policy?

Name: Mario Ceccarelli

Student number: s2280086

Email: m.ceccarelli@umail.leidenuniv.nl Academic year: 2019/2020

Supervisor: Marije Cornelissen Second reader: Jan Oster

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1. Introduction

Promoting values is one of the European Union’s (EU) primary goals when conducting foreign and trade policy. Due to its market power, the block is able to offer other countries substantial economic rewards, which could entail market accession or financial aid, in exchange of reforms aimed at promoting democratic values and Human Rights (HR). Nonetheless, the tool used for the promotion of such rights and values, namely the Human Rights Clause (HR Clause), is not something given, but it varies on a case-to-case basis and so do the outcomes. Consequently, this study investigates to what extent is the EU able to effectively promote HR in general, and LGBTI HR specifically in its trade policy.

After framing the EU as a ‘realist actor in normative clothes, the research kicks off with a contextualisation of the HR Clause and a review of the existing academic debate over EU conditionality and its (non-)effectiveness. The core of the research is then divided into three parts. The first part of the analysis focusses on the general HR situation, and the specific HR situation for LGBTI minorities in EU trade partners. This research considers exclusively trade agreements, due to the fact that countries that have established more than a simple economic relationship (such as countries in the accession process), might have a greater incentive to uphold fundamental rights. Here, common patterns, as well as possible explanations for a different inclusion of the HR Clause, are presented. Secondly, the research focusses on the implementation of the HR Clause and how this has been able to promote (or not) change in terms of HR in general and LGBTI HR specifically. Then, the research selects three case studies, namely the Zimbabwe EPA, the Peru Trade Agreement, and the EU-Canada Comprehensive Trade Agreement (CETA), to further investigate causalities that led to (or impeded) the improvement of HR for LGBTI minorities. Lastly, after a brief summary on the finding of the research, the thesis draws conclusions regarding the connection between EU trade agreements and improvement in HR and HR for LGBTI minorities in partner countries.

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2. EU conditionality: theoretically, historically, and in academia

2.1. Theoretical framework of the research

According to Manners (2002), the EU promotion of values makes the bloc a Normative Power, a political entity that makes use of its market power to promote norms and values. What makes the EU different from other political entities is that it promotes such rights without making use of any military power, but it operates through dialogue and cooperation, making links between HR issues and trade agreements or/and aid-packages (Manners 2002). In order to fully understand its normative character, it is important to remember that, historically, the concept of Normative Power of Europe (NPE) develops under particular circumstances. The European project started in the early 1950s with the Schuman declaration in a post-war context. At that time Europe was still deeply affected by genocide, death and economic degradation. Europeans sought a way to guarantee peace in the continent and boost economic prosperity (Manners 2002). This process was undoubtedly hastened by the breakout of the cold war between Russia and the USA. This represented a clear ideological divide between the West and its values, which obviously included HR, and the East (Manners 2002). As a consequence, promoting common norms, based on HR and democratic values was considered the only way to guarantee peace, stability and economic prosperity (Manners 2002). The European Communities played a fundamental role in doing this, using their market power and influence to promote such values, succeeding in maintaining peace in the continent. Today the conceptualisation of the NPE is widely accepted and these norms and values are included in the acquis communitaire along with a set of sub-values that the EU tries to promote, such as anti-discrimination, social solidarity, sustainable development, and good governance (Hardwick 2011). These norms, which were commonly agreed by the Member States, are increasingly promoted by the EU through its bilateral action with third countries.

Nevertheless, the conceptualisation of NPE was challenged by a later conceptualiser, Hyde-Price (2006, 220), who argues that the EU is a realist actor with state-like functions. In line with the neo-realist school, Hyde-Price (2006) argues that the Member States (MSs) aim at maximising their own interests and they use the EU as vehicle to promote their own values, security and economic agenda in the neighbourhood and worldwide. Consequently, with the EU market being one of the biggest markets in the world, MSs are able to coercively force

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third countries to bend to common EU values in order to maximise their own interests (Hardwick 2011). To further expand on this, the realist concept of ‘bandwagoning‘ can be useful. It usually refers to the decision of a weaker state to align with the interests of a stronger state, since the benefits of doing so are much greater than the costs of opposing it (Walt 1987). Here, weaker countries are usually faced with a choice, they can either decide to align with the EU and its values and gain access to its market or not, which would cause relevant economic damages to their economy. Nonetheless, the realist theory can be applied to EU conditionality and can be useful to explain the different approaches to non-trade issues in EU trade agreements.

Politically, the EU, in the period following the cold war, has been dominated by social democrats (Manners 2002), whereas in the last two decades the EU has witnessed a swing towards conservatives and liberals, with a considerable influence of right-wing and populist parties too (Mos 2020). This had an impact on the Normative side of the EU, due to the fact that some MS, such as for instance Poland and Hungary, have actively turned against HR, especially in relation to LGBTI rights, and it has become difficult for the EU to speak with one voice and to actively promote HR (Mos 2020).

This dissertation, however, does not assume that the EU is either an exclusively normative actor or a realist one, but it aligns with the discourse brought forward by Seeberg (2009) and Del Sarto & Schumacher (2005) that the EU is also pursuing its economic, geopolitical and security agenda when conducting trade policy. The EU is therefore defined as ‘realist actor in normative clothes’ (Seesbeg 2009). It is undeniable that, although to different extents, it has been able to promote its own values worldwide. Yet, it is also true that the EU’s economic and geopolitical considerations vary according to the region where it conducts trade policy and so do the outcomes. Different concessions in terms of EU conditionality are therefore explained by the EU pursuance of both a realist and normative agenda.

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2.2. From the historical background to the legal background of the EU promotion of HR

The linkage between trade liberalisation and HR is not something new in the EU (European Parliament (EP) 2019). This practise started as early as the 1970s with the introduction of the HR Clause in the EU’s international agreements (EP 2019). Back then, the HR Clause was intended as a mechanism for the then European Communities to suspend their international agreements in the case of serious violations of HR. Further in the years, a clear reference and linkage to HR was made for the first time in the Lomé Convention that was concluded in 1989 (EP 2019). In the subsequent years, the EU was increasingly able to include commonly agreed norms, amongst which HR, in its trade agreements (EP 2019) to the point that in 2009 a “common approach on the use of political clauses” was agreed by COREPER in the CEU. This entailed the systematic inclusion of fundamental values, such as Democracy, the Rule of Law and HR in all the EU agreements (EP 2019). For LGBTI rights, this was reinforced in 2013 by the CEU, which outlined “guidelines to promote and protect the enjoyment of all Human Rights by Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) persons” (CEU 2013). These values are usually introduced into the essential elements clauses of international agreements and give grounds to the EU to recede from or partially suspend an agreement in case there is a serious breach of the ‘essential elements’ (EP 2019). Moreover, the HR Clause is often complemented by provisions for cooperation and dialogue between the two parties and their civil societies on HR issues (EP 2019).

Nowadays, the EU in its trade policy makes use of three main different types of agreements which include: firstly, Customs Unions (CU); secondly, a group which is composed of (Stabilisation and) Association Agreements ((S)AAs), Free Trade Agreements (FTAs) and Economic Partnership Agreements (EPAs); and thirdly, Partnership and Cooperation Agreements (PCAs)(EC 2020c). Firstly, CU Agreements aim at eliminating all custom duties and establishing common external tariffs. The second group of agreements has the common goal of lowering tariffs in goods and services, however, (S)AAs are usually offered to those countries that have a special bond with EU Member States and/or to prospect EU members in order to enhance not only economic ties, but also to create social, political, cultural and security links between the EU and the partner country (EU monitor 2020). FTAs uniquely aim at reducing tariffs and promote trade in goods and services between the EU and third

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countries (EC 2020c). Yet, they still include the HR Clause. EPAs support trade development in African, Caribbean and Pacific Countries (ACP) and have the goal of poverty eradication (EU

monitor 2020). Thirdly, the last group is the one of Partnership and Cooperation Agreements

(PCAs) which provide a general framework for the democratic and economic development of the country, supporting a free market economy and providing a healthy climate for businesses and foreign direct investments, but customs duties remain unchanged (EU monitor 2020). Throughout all these agreements, the EU has the legal obligation to promote HR1_.

The EU in most of its agreements includes a different range of values such as Good Governance, Rule of Law, promotion of democratic Values, HR and the protection of minorities, such as LGBTI minorities (EP 2019). Yet, the HR Clause is not uniform throughout all the agreements (EP 2019). Indeed, the EU makes reference to different legal frameworks, which can be divided into three different configurations. A first legal framework, which was used for instance in the Cotonou agreement, makes no explicit reference to International, or to European norms, but requires EU’s trade partners to generally respect and uphold HR (EP 2019). Secondly, the EU in its agreements makes a clear reference to the UN Universal Declaration of Human Rights (UDHR), demanding its partners to promote laws in order to protect fundamental HR as they are intended in UDHR (EP 2019). This framework was used for instance in the EU-Colombia-Peru Trade Agreement. Finally, in a third legal framework, that was used in EU-Canada Agreement, the EU makes an explicit reference to both European norms, as intended in the European Convention on HR, and the UDHR (EP 2019).

1_{According to article 21 (1) of the Treaty of the European Union (TEU) ‘the Union's action on the international}

scene shall be guided by […] democracy, the rule of law, the universality and indivisibility of HR and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.’

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Table 1 - EU different legal approaches to HR in its trade agreements. FIRST CATEGORY: a clause

with no reference to international norms

SECOND CATEGORY: a clause with reference to international norms

THIRD CATEGORY: a clause with reference to international and European norms

• EU requests to respect HR, democratic principles and the Rule of Law.

• EU requests to respect HR, democratic principles and the Rule of Law as intended in: • UDHR • EU requests to respect HR, democratic principles and the Rule of Law as intended in: • UDHR • European

Convention on HR.

Table of the author. Source: EP (2019).

Furthermore, it is important to highlight that EU HR Clause is introduced in EU trade agreements either directly in the ‘essential elements’ of the agreement, or through the linkage to other political or framework agreements (Meissner et al. 2019).

2.3. The academic debate over EU conditionality and its effectiveness

In the literature, the HR Clause has been defined by many (Schimmelfennig et al. 2004; Fierro 2003; Butler 2014; Damro 2012) as a form of conditionality upon which the EU acts. Schimmelfennig et al. (2004) defines the HR Clause as ‘a strategy of the EU in which the Union sets rules as conditions that non-member states have to fulfil in order to get the EU rewards of assistance and institutional ties’ (Schimmelfennig et al. 2004, 663). Similarly, Fierro (2003, pp. 94-95) defines conditionality as the relationship amongst two unequal partners: a conditionality actor and a conditionality recipient. The conditionality actor tries to promote its own values over the recipient in exchange of social and/or economic benefits for the recipient. In simpler words, the EU is able to use its market and economic power to promote commonly agreed values (Fierro 2003). Economic and social benefits can be translated in financial aids for the recipient countries, as well as accession to the single market through the creation of FTAs and special conditions for the recipient country’s citizens to access the Schengen Area - such as visa-free travel zones (Fierro 2003).

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Nonetheless, EU conditionality has often been controversially at the centre of the academic debate. On the one hand, some (Butler 2014; Damro 2012; Da Conceição-Heldt 2014) argue that the EU has been an effective actor on the international stage in externalising its norms and values. Through the use of conditionality, it has been able to stimulate substantial structural changes and reforms, promoting Democracy and HR, including rights of LGBTI minorities. Butler (2014) argues that this approach proved particularly successful in the case of post-Soviet eastern and central states prior their accession to the EU in 2004, due to the attractiveness of the EU market to the then candidate MSs. By offering the membership card, the EU was able to give an important boost to Fundamental HR (Butler 2014). In hindsight, this seems not to be completely accurate for countries like Poland or Hungary, that in the recent years, after their accession, have recorded important backlashes in terms of Fundamental HR (Mos 2020). Once these countries accessed the EU, they ceased to be bound by EU conditionality, and they have recently witnessed a ‘backtrack’ in HR (Mos 2020). Although prior to their accession, HR did receive a boost in the respective countries, EU conditionality does not seem to be suitable to make change that is sustainable in the long term (Mos 2020).

Similarly, others (Damro 2012; Da Conceição-Heldt 2014) also positively argue on EU conditionality and its effectiveness from a market perspective. Damro (2012) kicks off his argument by identifying the EU as a market power, being the bloc one of the biggest markets in the world. Consequently, the Union is able to make use of its market size to exert considerable influence towards third countries, influencing political change and triggering democratic reforms and HR promotion (Damro 2012). The EU market power stands in the fact that for third countries, economic exclusion from the EU market, would undoubtedly result in significant economic loss. Da Conceição-Heldt (2014) argues that conditionality proves more effective in case the EU and its partner are in a condition of market asymmetry. Market asymmetry refers to the situation in which the EU represents the greater market power in comparison to another market and economic loss if no agreement is reached (or suspended) is greater for the EU partner, rather than for the EU itself (Da Conceição-Heldt 2014). When this condition verifies, the bloc is capable of exerting considerable power and to influence political change in its trade partners (Da Heldt 2014). Conversely, Da Conceição-Heldt (2014) also argues that in case of market symmetries, which refers to the condition

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where the EU and its partner both have markets fairly big in size, highly liberalised and well-integrated, the EU is not able to exert as much influence as in the earlier case.

Differently, Postnikov et al. (2014) remind us that improvement in HR in EU’s partners is observable ‘ex post’, due to the ability of the bloc to positively engage with Civil Society and Non-Governmental Organisations (NGOs) and to initiate political dialogue with local governments, rather than in the inclusion of the HR Clause itself. In the implementation phase of the agreement, Postnikov et al. (2014) argue, the EU is able to exercise political pressure on the partners’ governments, as well as to establish dialogue and cooperation with Civil Society and relevant institutions in the trade partner countries. Yet, they (2014) also remind us that lack of improvement in terms of HR can be linked to the lack of a well-functioning, structured Civil Society.

On the other hand, however, many (Lirong 2011; Obie 2009; Algieri 2007; Mckenzie et al. 2017; Seesberg 2009) critically put into question the effectiveness of EU conditionality. Lirong (2011) talks about lack of effectiveness of EU conditionality due to geopolitical reasons or geopolitical influence of powerful players in a determined region. Lirong (2011) highlights that the ambiguous outcome in EU conditionality and promotion of HR towards ACP (African, Caribbean and Pacific States) can be related to the strategic interests of China in the regions, which offers these developing countries ‘non-string attached’ alternatives aid, differently from the EU.

Others (Obie 2009; Algieri 2007), although in principle they acknowledge that EU conditionality has been able to bring positive change, argue that ineffectiveness of the EU conditionality is related to the incoherent approach of the EU to issues relating Human Rights. For Algieri (2007) ineffectiveness also underlines the overall EU struggle in balancing fundamental rights with trade policy objectives/considerations. Different approaches to HR led to a lack of coherence in the EU HR Clause, and to debate over the extent to which the EU is an assertive Normative Power able to promote change (Obie 2009; Algieri 2007). Obie (2009) and Algieri (2007) both conclude that this policy ambivalence undoubtedly weakens the position of the EU and affects its credibility in the international arena.

Finally, Mckenzie et al. (2017) and Seesberg (2009) both talk about EU self-interests as the cause of ineffectiveness and different approaches to the HRC. On the one hand, Seesberg (2009) focusses more about the external interests of the EU, arguing that the bloc is driven by its own geopolitical, security and economic agenda and that is why conditionality

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varies. Seesberg (2009) proves this empirically by showing how most of the aid-packages are destined to North African and eastern countries neighbouring the EU. On the other hand, Mckenzie et al. (2017) focus more on the clashing interests between EU institutions and how this could explain different concessions in terms of conditionality. Indeed, they (2017) argue that different EU institutions with different intrests are involved and that is why concessions on conditionality vary from case to case. These are the European Commission – and more specifically the Directorate General (DG) on trade – the Council of Ministers, the EP and the European External Action Service (EEAS). On the one side, DG trade, which represents the interests of the EU, and the Council of Ministers, which represents the interests of the MSs, are mostly concerned with economic interests and therefore tend to overlook the HR obligations. On the other side, the EP and the EEAS tend to be more active on the HR Clause (Mckenzie et al. 2017). The EP has the power to veto an agreement in case HR Clause is not rightly included (Mckenzie et al. 2017). Yet, they (2017) continue arguing, a fair balancing between economic interests and HR tends to be extremely difficult when great economic interests are at stake.

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3. Methodological approach

3.1. Working definitions

This research adopts the working definitions used by the 2013 Foreign Affairs Council meeting on “guidelines to promote and protect the enjoyment of all Human Rights by Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) persons.” These definitions reflect the UNHRC “Guidance on working with LGBTI persons in forced displacement.” The EU uses the acronym LGBTI to identify a ‘group of persons who do not identify with the conventional or traditional notions of male and female gender roles’ (CEU 2013). These can also be referred as ‘sexual, gender and bodily minorities’ (CEU 2013). The Council of the EU (2013) defines a Lesbian as a ‘woman whose enduring physical, romantic and/or emotional attraction is to other women.’ Similarly, the word Gay describes ‘a man whose enduring physical, romantic and/or emotional attraction is to other men, although the term can be used to describe both gay men and lesbians’ (CEU 2013). A Bisexual is an ‘individual who is physically, romantically and/or emotionally attracted to both men and women’, whereas Transgender refers to individuals ‘whose gender identity and/or gender expression differs from the sex they were assigned at birth’ (CEU 2013). Intersex is used to address individuals whose ‘bodily variations in regard to culturally established standards of maleness and femaleness, including variations at the level of chromosomes, gonads and genitals’ (CEU 2013). Finally, it is relevant to highlight the difference between Sexual Orientation (SO) and Gender Identity (GI). SO relates to ‘each person’s capacity for emotional, affective and sexual attraction to, and intimate and sexual relations with, individuals of a different or the same gender or more than one gender’ (CEU 2013). Differently, GI relates to ‘each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth” (CEU 2013).

3.2. LGBTI rights as Fundamental HR.

This research approaches LGBTI rights as fundamental HR. In the European legal framework, LGBTI rights have been increasingly framed as fundamental rights and now have an extensive legal coverage in the EU (EP 2019b). To start with, LGBTI Human Rights are protected by Article 10 TFEU, which states that ‘[…] the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’ and Articles

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2 and 3 TEU, which generally state that the Union is funded on (and aim to protect) Human dignity, equality and HR, with special regards to ‘persons belonging to minorities’. The articles are complemented by the EU Charter of Fundamental Rights (EP 2019b). This, as of 2011, for the first time in the history of international HR charters, explicitly prohibits discrimination based on SO (EP 2019b).

Moreover, the Council of the EU (2013) highlights that LGBTI persons have the same fundamental rights as non-LGBTI persons and therefore there is no need to create new HR for them, but there is the necessity to uphold the already existing fundamental HR for LGBTI minorities. As was already mentioned, in 2013 the Council of the EU came up with “guidelines to promote and protect the enjoyment of all HR by Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) persons”. These are intended to be operational guidelines for the EU external promotion of HR for LGBTI persons (CEU 2013). Most relevantly, the document reports that the EU should actively condemn any policies, laws and/or practises that discriminate LGBTI relations and it invites the EU institutions to give particular attention on a case-by-case basis to HR violation based on SO or GI. The document also highlights fundamental HR that are tangible to violation for LGBTI groups, which most relevantly include: the Right to life; Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment; Right to Equality and Non-Discrimination (especially in employment and before the law); Freedom of Association and Assembly; Freedom of Information and Expression; and many more (CEU 2013).

Internationally, there are also several relevant statements and declarations that conceptualise LGBTI rights as fundamental HR and call for further action from the international community. Most relevantly, in 2006 the Yogyakarta conference, which united HR experts from all over the world, listed fundamental HR, that are likely to be violated based on SO and GI (Amnesty International 2020). There are also, UN statements and declarations, which are all supported by the EU and its Member States. These include the December 2006 UN HRC Joint Statement on “sexual orientation, gender identity and HR”, the 2008 UN General Assembly resolution “HR, sexual orientation and gender identity” as well as the 2011 report of the UN High Commissioner on HR on “Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity”. All these documents state and reinstate the non-discrimination principle towards LGBTI persons and condemn any kind of violation on HR based on SO or GI (CEU 2013). Also, they invite States to

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“pay due attention to HR violations based on sexual orientation and gender identity” (UN HRC Declaration 2006).

3.3. Methodological approach

Methodologically, the thesis uses the EU 2009 ‘Common approach on the use of political clauses’ as the starting point of research. It then takes into consideration all the trade agreements that the EU conducted with third countries from 2009 up to December 31st_{, 2019.}

The research exclusively takes into consideration FTAs and (interim/steppingstone) EPAs, Trade Agreements, Global Agreements and Comprehensive Economic and Trade Agreements (CETA). This is because countries in the EU neighbourhood with accession clauses, as well as agreements that establish more than an economic relationship with the EU, such as (S)AA, CUs or a PCA, might have a greater incentive to improve HR. The research then initially focusses on the inclusion of the HR Clause in EU trade agreements and divides them into three categories: first, trade agreements that make general reference to HR; second, trade agreements that make reference to UDHR for the upholding of HR Clauses; and third, agreements that make both reference to the UDHR and EU norms for the upholding of the HR Clause.

The attention is then shifted to the general HR situation for every country of each category the year before the entry into force (or provisional application) of the agreements2_.

Firstly, Personal and Economic freedoms in each country are rated according to Human-Freedom Index (HFI) and compared to the global average rating of the year of reference for the agreement. The HFI rates on a scale from 0 to 10 the level of freedom of individuals in a given country, where 10 represents most free country and 0 represents the least free country. In order to so, the index looks into 76 different indicators that define the level both personal and economic freedom, which include: Rule of Law; Association, Assembly and Civil Society; Expression and Information; Identity and Relationships.3_{Freedom is to be understood as the}

absence of coercive measures (HFI 2020). Furthermore, the research highlights the most

2_{Exception is to be made for Japan and Singapore. Since the Human-Freedom Index reports up and until 2017,}

the latter will be used as year of reference.

3_{For more information concerning the indicators, please visit:}

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contested HR violations in the given country according to Human Rights Watch (HRW) and the Freedom House. The attention then is diverted on the more specific situation of HR for LGBTI persons, based on the ILGA State-Sponsored homophobia index. The aim is to establish whether LGBTI HR are the main ones being contested and to look for common denominators. Two contradicting hypotheses might verify regarding the link between the HR Clause and the HR situation in the partner country:

Hypothesis 1: Countries that are further removed from the observation of HR have a more detailed HR Clause.

This is because from an EU Normative perspective, it is more needed, and the bloc has been able to exert its influence and negotiate a more detailed clause.

Hypothesis 2: Countries that are further removed from the observation of HR have a less detailed HR Clause.

This could be the case if countries have been successful in negotiating a less obliging text and less is expected from them by the EU in terms of improvement of HR. The aim is to establish a probable link between more and less conditionality in EU trade agreements.

Next, the research looks into possible explanations for the EU different forms of inclusion of the HR Clause in trade agreements. More specifically, it firstly looks into economic a/symmetries between the EU market and the market of the EU trade partner, as one of the possible explanations. In order to establish economic a/symmetry in the EU-partner market, the thesis uses the GDP at Purchase Power Parity (PPP), as provided by the World Bank website. Furthermore, the dissertation looks into further political dependencies. More specifically, it looks into possible strategic interests, refugee flows or geopolitical nearness to a country that is of strategic interest to the EU. The aim is to determine whether the combination of the HR situation, economic dependency and political dependencies can explain the differences in the EU HR clauses.

Two more hypotheses can be made regarding the link between the HR clause and the economic balance between the EU and a partner country:

Hypothesis 3: Countries that are more economically dependent on the EU, have a more detailed HR Clause.

Hypothesis 4: Countries that are of geopolitical interest of a powerful player in a determined region have a less detailed HR Clause.

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The aim, once again, is to establish a probable link between more and less conditionality in EU trade agreements.

Finally, the research moves onto the implementation of the HR clauses and quantifies the extent to which the HR Clause has made a difference for the improvement of HR in general and LGBTI HR specifically. Due to the fact that both the EU-Singapore and EU-Japan agreements are quite recent, they will not be taken into account, since it would be difficult to quantify improvement. Another hypothesis is then made here:

Hypothesis 5: Countries that have a more detailed HR Clause advance more in terms of HR and LGBTI HR after the agreement with the EU enters into force.

Improvement is quantified based on the Human Freedom Index score for HR, and on the author’s rank on LGBTI rights, based on the existence of legislation aimed at protecting fundamental rights for LGBTI minorities, as reported by the ILGA State-sponsored homophobia indexes (see annex 1 for more information). To better demonstrate progress (or lack of progress), the research reports yearly, since those countries that have signed an agreement earlier might have an advantage on those that signed it later.

Finally, the attention is then shifted onto three case studies, on the ground of the findings of the research, each one from a different category of conditionality, to further explore causality of the improvement, or lack of improvement, of LGBTI rights. The author will try to conduct interviews with local HR associations LGBTI local and international associations operating in the targeted countries, as well as the EU delegations to the respective countries, and combines them with primary sources to further explore casualties. The author asks open questions about the progress or lack of progress in HR and LGBTI rights observance in the country between the adoption of the agreement and now, the role that they think the EU trade agreement has played in HR in general and LGBTI rights in particular, and what other factors they think are of influence on the HR and LGBTI rights situation in the country (see annex 2 for all questions).

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4. The Inclusion of the HR Clause in EU Agreements

4.1. The EU different categories of HR clauses

Between 2009 and December 31st_{, 2019 the EU has conducted a total of 11 agreements with}

22 different countries that fall under the category of FTA, EPA, CETA, Global Agreement or Trade Agreement. Of these, a total of five agreements with 18 countries make an indirect general reference to the respect of HR, 4 agreements make directly or indirectly explicit reference to the UDHR, and one agreement, namely EU-Canada CETA, makes indirectly reference both to EU/Canadian and international norms for the safeguard of HR. More specifically, in all the (interim/steppingstone) EPAs, which include the agreements with Cameroon, Eastern and Southern African Countries (ESA)4_{, Pacific States}5_{, South African}

Development Community (SADC)6_{and West African countries}7_{, the HR Clause is introduced}

through the linkage of the agreements to the Cotonou Agreement, which states that “Respect for HR, 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”(EP 2019), broadly committing EU partners to respect HR, Democratic Principles and the Rule of Law.

Differently, the trade agreement with Colombia, Ecuador and Peru, the FTAs with Singapore and South Korea, and the global agreement with Japan make reference to the UDHR. More specifically, for the case of Colombia, Ecuador and Peru, this is directly introduced in the essential elements of the agreement. For the case of Japan, South Korea and Singapore, the commitment to the UDHR is observable in the preamble of the agreement, which states “REAFFIRMING their commitment to the Charter of the United Nations and having regard to the principles articulated in the Universal Declaration of HR” (EU-Japan global agreement). In principle the preamble is not legally binding, yet the wording of the agreement, especially in relation to the word ‘reaffirming’ suggests that all the parties are

4_{ESA countries as of 2009: Madagascar, Mauritius, Seychelles and Zimbabwe.} 5_{Pacific States as of 2009: Fiji and Samoa.}

6_{SADC countries as of 2009: Botswana, Eswatini, Lesotho, Mozambique, Namibia South Africa.} 7_{West African countries as of 2009: Ivory Coast, Ghana.}

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already legally committed to the UDHR (Oster 2020). Furthermore, for the Japanese and South Korean case the HR Clause is introduced through the linkage of the agreement with two separate framework agreements, that make explicit reference to the UDHR as an element that “underpins the internal and international policies of both Parties” (EU-South Korea framework agreement 2019). Similarly, EU-Singapore FTA makes use of linkage-clause to the EU-Singapore Partnership and Cooperation Agreement (PCA), which makes explicit reference to the UDHR. Nevertheless, the EU-Singapore PCA was accompanied by a ‘side letter’ signed by both parties that prevents the EU from legally challenging Singapore’s HR practises through the principle of conditionality (EU-Singapore PCA 2014). More specifically, this stated that ‘[…] at the time of signature of the agreement, they (both parties) are not aware, based on objectively available information, of any of each other's domestic laws or their application, which could lead to the invocation of the non-execution mechanism’ (EU-Singapore PCA 2014).

Finally, in the case of CETA with Canada, a direct reference to the UDHR in the agreement is made through the preamble in which the parties reaffirm their commitment to the Declaration. Furthermore, the CETA indirectly makes reference to both international and European norms concerning HR, through a linkage clause in the agreement to the EU-Canada Strategic and Partnership Agreement (SPA) (EU-Canada CETA 2017). In the SPA, it is stated that “Respect for democratic principles, HR and fundamental freedoms, as laid down in the Universal Declaration of HR and existing international HR 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” (EU-Canada SPA 2016).

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Table 2 summarising the differences in EU approaches to conditionality. A clause with no reference

to international norms

A clause with reference to international norms

A clause with reference to international and European norms

• Cameroon (EPA) (2014)

• ESA Countries (Interim EPA) (2012) • Pacific States (EPA)

(Fiji in 2014; Samoa 2018) • SADC Countries (EPA) (2016) • West Africa (Steppingstone EPA) (2016) • Colombia, Peru, Ecuador (Trade Agreement) (2013; Ecuador in 2017) • Japan (Global Agreement) (2019) • South Korea (2014) • Singapore (2019) • Canada (2017)

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4.2. The HR and LGBTI HR situation in the targeted countries

Table 3 EU-trade partners HR situation by country N/D=No Data

COUNTRY (PART of THE TREARTY) YE AR O F RE FE RE N C E Fre e d o m I n d e x ( FI ) FI (G lo b al a ve ra ge ) fo r th e ye ar o f re fe re n ce ).

MAIN CONTESTED HR VIOLATIONS (HRW & FREEDOM HOUSE).

1. Canada

2016 8,65 6,89 • Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment: no adequate protection against violence against indigenous women.

• Right of the Children: detention of immigrant children in prison-like facilities, with no adequate education and recreational activities.

2. Japan

2017 8,28 6,89 • Freedom of Expression: (generally upheld) the new Secrets Act that gives grounds to prosecute journalists that reveal State secrets.

• Right to Equality and Non-Discrimination: societal especially towards women and LGBTI minorities.

• Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment: Trafficking in Persons for sexual exploitation – destination/origin/transit.

• Right to Life: capital punishment–enforced.

3. Mauritius (ESA)

2011 8,25 6,99 • Freedom of Associations: concerns raised over right of association of police and government officials.

• Right to Equality and Non-Discrimination: societal towards women, legal towards LGBTI persons.

• Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment: although the government takes action against it, the country is a source of children, men and women for sexual exploitation purposes.

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4. South Korea

2014 8,23 6,93 • Freedom of Expression: (legally protected) yet during Lee Myung-bak 2008-2013 precedency censorship on online speeches increased considerably; statements supporting North Korean regime or communism are prohibited.

• Right to Equality and Non-Discrimination: ethnic minorities face legal and societal discrimination; women and LGBTI face societal discrimination.

• Right to Life: capital punishment-enforced.

5. Singapore

2017 8,11 6,89 • Freedom of Expression: government control of online speeches and use of criminal and civil laws to silence online speech/press.

• Freedom of Assembly and Association: Public Order Act requires permit for peaceful gatherings; associations of more than 10 people require government approval to be registered and can be denied for reasons of public order.

• Right to Equality and Non-Discrimination: Labour migrants in employment; LGBTI persons before the law.

• Right to Life: Capital punishment-enforced.

6. Peru (with Colombia and Ecuador)

2012 7,55 6,96 • Freedom of Expression: (generally guaranteed) occasionally journalists receive threats due to negative coverage on the government.

• Freedom of Association and Assembly: (generally guaranteed) however some reported cases of government criticising/threatening NGOs, accusing them to hinder economic development.

• Right to Equality and Non-Discrimination: towards indigenous regarding land use and property rights; LGBTI persons.

• Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment: forced labour, minors included, in mines in the amazon.

7. South Africa

2015 7,24 6,93 • Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment: Police excessive use of violence towards civilians; xenophobic violence/attacks against non-nationals.

• Right to Equality and Non-Discrimination: societal and before the law of indigenous groups; societal towards LGBTI.

• Right to Education: limited for children with disabilities, besides governments efforts.

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8. Botswana (SADC)

2015 7,00 6,93 • Freedom of Expression and Belief: (generally respected) concerns over lack of regulations/mechanism to limit surveillance by government and private bodies on individuals.

• Freedom of Association and Assembly: (generally respected) concerns over the government’s decision of not recognising indigenous associations (San people) and LGBTI associations.

• Right to Equality and Non-Discrimination: societal and legal towards women and LGBTI minorities.

• Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment: Human Trafficking – destination/origin/transit; domestic violence with no action being taken.

• Right to life: capital punishment & physical torture permitted by law – enforced.

9. Ghana (West Africa)

2015 6,96 6,93 • Freedom of Expression: (occasionally) restricted by the government on journalists. • Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment: especially towards LGBTI communities; trafficking of women – destination/origin/transit.

• Right of the Children: forced labour. • Right to life: capital punishment–enforced.

10. Namibia (SADC)

2015 6,94 6,89 • Freedom of expression: 2009 Communication Act allows the government to monitor telephone, e-mails and internet usage, without a warrant.

• Right to Equality and Non-Discrimination: societal and before the law for women and LGBTI communities.

• Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment: violence against women without laws on domestic abuse; Human Trafficking - source/transit/destination.

11. Ecuador (with Colombia and Peru)

2016 6,89 6,89 • Freedom of Expression: (severely limited) media controlled by the government and freedom of speech online.

• Freedom of Association: (severely limited) the government that can scrutinise the work of NGOs and dissolve them on not clear grounds.

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• Right to Equality and Non-Discrimination: societal and economic towards women, indigenous.

• Failure in upholding fundamental HR for refugees.

12. Fiji (Pacific)

2013 6,81 6,94 • Freedom of Expression: concerns raised over government using state power to silence critics.

• Freedom of Association: (severely limited), especially in relation to trade unions and collective bargaining.

• Right to Equality and Non-Discrimination: societal, economic and legal towards women and LGBTI minorities.

• Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment: Foreign and national women and children are subject to sex trafficking; military and police brutalities on civilians.

13. Colombia (with Ecuador and Peru)

2012 6,72 6,96 • Freedom of Expression: (constitutionally guaranteed) concerns over several murders never brought to justice of journalists investigating government corruption and drug cartels as well as HR advocates’ abductions.

• Freedom of Association and Assembly (constitutionally guaranteed) yet limited with violence from government action in relation to labour organisations (no collective bargain) and HR groups.

• Right to Equality and Non-Discrimination: societal and legal towards Afro-Colombians, with no action being taken.

• Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment/Right to Life: massive violations and killings carried out by the state officials and military in relation to guerrillas; domestic gender-based violence.

14. Madagascar (ES A)

2011 6,68 6,99 • Freedom of Expression: (limited) media/online speech are often censored by the government.

• Freedom of Assembly: it is severely regulated by the government.

• Right to Equality and Non-Discrimination: economic, societal and legal towards women and LGBTI communities.

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• Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment: Children’s trafficking towards the middle east for sexual/forced labour purposes.

15. Lesotho (SADC)

2015 6,65 6,93 • Freedom of Expression: doubts casted over the freedom of press. Journalist often receive threats.

• Freedom of Association and Assembly: (generally respected) yet Labour Unions’ members face great challenges when trying to join them.

• Right to Equality and Non-Discrimination: legal, economic and societal towards women and LGBTI persons*.

• Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment: trafficking in persons for forced labour/sexual exploitation – destination/origin/transit.

• Right to Life: capital punishment-enforced.

16. Ivory

Coast (West Africa)

2015 6,40 6,93 • Freedom of Expression: concerns over academic freedom after universities were military occupied in 2010-11.

• Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment: towards women, and LGBTI minorities; abuse of power of security forces on detainees (mistreatment/torture).

• Right to Equality and Non-Discrimination: legal, economic and societal towards women

• Right of the Children: Child Labour, especially in the cocoa industry; human trafficking – destination/origin/transit.

17. Eswatini (SADC)

2015 6,32 6,93 • Freedom of Expression: (constitutionally protected)(severely limited) by the monarchy in relation to anti-monarchy and pro-democracy speech; private discussion also limited.

• Freedom of Association & Assembly: (severely limited) by the monarchy through the 2008 Suppression Terrorism Act, which allows the government/king to declare organisations terrorist groups.

• Right to Equality and Non-Discrimination: economic and social towards women and LGBTI minorities.

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• Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment: women are victims of violence and unhealthy genital mutilation practises.

• Right to Life: Capital punishment–enforced.

18. Mozambique (S ADC)

2015 6,10 6,93 • Freedom of Expression: (legally guaranteed) yet press freedom often limited by government pressure/threats on journalists.

• Freedom of Association & Assembly: (generally guaranteed) yet it faces bureaucratic hurdles either for registration (association) or permits (assembly). • Right to Equality and Non-Discrimination: societal towards women socially

excluded; legal towards LGBTI persons.

• Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment: excessive use of violence of the police towards minorities, especially albinos; although government –limited– action Trafficking in Persons is on the rise.

19. Cameroon (Central Africa)

2013 5,99 6,94 • Freedom of Expression & Belief: (both constitutionally granted) limited in several circumstances on the grounds of public order and public security.

• Freedom of Association & Assembly: (Legally protected) both limited in several areas by state authorities on not clear grounds.

• Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment: mistreatment and torture on civilians by state police; Human Trafficking – destination/origin/transit.

• Right to Equality and Non-Discrimination: societal and legal towards women and LGBTI minorities.

• Right to Life: capital punishment & physical torture permitted by law – enforced.

20. Zimbabwe (ESA)

2011 5,13 6,99 • Freedom of Movement: (Severely limited) both for foreigners and nationals. • Freedom of expression: (severely limited) by the action of the government,

especially towards medias.

• Freedom of Association & Assembly: HR associations do not operate freely, as a result of laws that target the freedom of civil societies and public gatherings. • Right to Equality and Non-Discrimination: societal and before the law for LGBTI

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• Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment: abuse of power and mistreatment from police forces.

• Right to Life: capital punishment.

21. Samoa (Pacific)

2017 N/D 6,89 • Freedom of Expression & Belief: (generally guaranteed) yet there were episodes where politicians used it to spread disinformation; although freedom of religion is legally guaranteed, the state religion is Catholicism and there is strong societal pressures on other religious groups.

• Right to Equality and Non-Discrimination: towards women and LGBTI in employment; same-sex relations criminal offence.

22. Seychelles (ESA)

2011 N/D 6,99 • Freedom of Expression: the press is largely government owned and controlled. • Freedom of Assembly: the government occasionally impedes opposition

gatherings.

• Right to Equality and Non-Discrimination: before the law towards LGBTI; foreigners in the fishing sector subject to lower salaries.

• Right to Freedom from Torture or Cruel, Inhumane or Degrading Treatment: domestic violence against women; children vulnerable to sex expiation.

Table of the author. Miscellaneous sources retrieved from: HFI (2020); HRW (2020), Freedom House (2020).

Table 4 highlights fundamental rights for LGBTI persons in EU trade partners according to the ILGA index. N/D = no data available

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COUNTRY (EU TRADE AGREEMENT) YE A R O F RE FE RE NC E A G E O F C O NSE NT CRIMINALISATION PROTECTION Sam e -s ex ac ts leg al G end er Max p enalt y Enf o rc ed in t he pa st 3 yr s? C o n stit u tio n Bro ad p ro tec tio n Em p lo ym e n t Hate cr im es In citem ent O th er s Ran k

1. Ecuador 2016 EQUAL YES ANY N/A N/A YES YES YES YES YES YES 10

2. South Africa 2015 EQUAL YES ANY N/A N/A YES YES YES NO YES NO 8

3. Canada 2016 UNEQ. YES ANY N/A N/A NO NO YES YES NO YES 6

4. Fiji 2013 EQUAL YES ANY N/A N/A YES NO YES NO NO NO 6

5. Colombia 2012 EQUAL YES ANY N/A N/A NO NO YES NO YES NO 5

6. Japan 2017 EQUAL YES ANY N/A N/A NO NO NO NO NO YES 5

7. Mozambique 2015 EQUAL YES ANY N/A N/A NO NO YES NO NO NO 5

8. Lesotho 2015 EQUAL YES ANY N/A N/A NO NO NO NO NO NO 4

9. Peru 2012 EQUAL YES ANY N/A N/A NO NO NO NO NO NO 4

10. Samoa 2017 N/A NO MALE 8-14 y NO NO NO YES YES NO NO 4

11. South Korea 2014 EQUAL YES ANY N/A N/A NO NO NO NO NO NO 4

12. Ivory Coast 2015 UNEQ. YES ANY N/A N/A NO NO NO NO NO NO 3

13. Madagascar 2011 UNEQ. YES ANY N/A N/A NO NO NO NO NO NO 3

14. Mauritius 2011 N/A NO MALE 5y N/D NO NO YES NO NO YES 3

15. Ghana 2015 N/A NO MALE 3-7 y NO NO NO NO NO NO NO 2

16. Seychelles 2011 N/A NO MALE 14 y N/D NO NO YES NO NO NO 2

17. Botswana 2015 N/A NO ANY 7 yrs N/D NO NO YES NO NO NO 1

18. Eswatini 2015 N/A NO MALE 8-14 y YES NO NO NO NO NO NO 1

19. Namibia 2015 N/A NO MALE N/D NO NO NO NO NO NO NO 1

20. Singapore 2017 N/A NO MALE 1m-2y ND NO NO NO NO NO NO 1

21. Zimbabwe 2011 N/A NO MALE 1y YES NO NO NO NO NO NO 1

22. Cameroon 2013 N/A NO ANY 6m-5y YES NO NO NO NO NO NO 0

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After a closer look to the data analysed, it seems that the more a country is removed from HR observance - and LGBTI HR - the less detailed the clause is and that hypothesis 1 is disproven and hypothesis 2 is proven. In the case for EPAs, despite the fact that most of these countries have been found in violation of fundamental HR, or at the time of the engagement with the EU were failing to implement measures to guarantee HR for LGBTI persons (see table 4), and a more detailed clause was needed from a Normative point of view, they all have a less detailed HR Clause with no reference to international norms or European ones. Of the 15 African and Pacific countries taken into consideration, a total of 8 (namely, Cameroon, Fiji, Ivory Coast, Eswatini, Lesotho, Madagascar, Mozambique, Namibia and Zimbabwe) scored below the world average of the HFI of their year of reference and there are several violations in terms of HR. Differently, Ghana, Botswana and Namibia scored slightly above the Global Average, yet some serious HR violations were reported in the respective countries, whereas South Africa and the Mauritius islands seem to have an overall better HR situation compared to other African countries. No data was found for the Seychelles and Samoa (See table 3). In all the countries (with exception of South Africa), HRW, the UNHRC and the ILGA index have contested that LGBTI persons face either legal or societal discrimination or both.

More specifically, in total of seven countries, which include Eswatini, Ghana, Mauritius, Namibia, Samos, Seychelles and Zimbabwe, same-sex relations between two males are criminalised (see table 4). Yet, it is important to observe that, besides criminalisation, Seychelles, Mauritius and Samoa’s legal systems offer legal protection to discrimination based on SO or GI on employment, and that Samoa, Ghana and Namibia have not enforced the provision in the past 3 years (see table 5). Two countries, namely Botswana and Cameroon criminalise same-sex relations between both male and female, without offering any kind of protection (see table 5). Differently, Ivory Coast, Lesotho, Madagascar and Mozambique, although same-sex relations are not criminalised, LGBTI persons are victim of discrimination on a daily basis. Mozambique and Fiji legal systems are the only ones of this sub-group that offer LGBTI persons protection on employment, whereas no protection of any type is offered to LGBTI persons in Ivory Coast, Lesotho and Madagascar. Finally, South Africa is the only EU-EPA trade partner that offers a broad protection of LGBTI rights.

Differently, countries that fall under the second category, although to different extents, seem to have an overall better situation for HR. These countries, with exception for Colombia, all score above the Global average on the HFI and Fundamental HR are generally

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better observed. Concerning LGBTI rights, Singapore is the only country in this group that criminalises same-sex relations between two males with imprisonment up to 2 years. Ecuador is the only country offering a broad protection on HR for LGBTI persons, although LGBTI persons still face great societal challenges, whereas Asian countries, although most of them do not criminalise same-sex relations, do not offer broad protection, and LGBTI persons are object of societal and legal discrimination.

Finally, EU-Canada CETA is the only agreement taken into consideration that includes reference to international norms and European/Canadian HR charters. Canada enjoys an outstanding global reputation for the promotion of HR domestically and globally (HRW 2020). Some long-standing HR violations are present in the country in relation to indigenous groups, however, the country ranked on the HRI above the average of all EU member states8_{in 2016,}

and LGBTI persons enjoyed quite a good degree of recognition before the law, yet some issues were reported in relation to the legal age of consent which is unequal between same-sex couples and heterosexual couples, and active discrimination that was embraced by the State in the ‘80s (Egale 2016). The analysis and data seem to confirm the argument that countries that are further removed from the observance of HR were able to negotiate a less detailed clause, whilst it was easier for the EU and Canada to agree on shared principles and values, due to the fact both countries actively promote fundamental HR.

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4.3. Economic asymmetries and dependencies.

Graph 1 GDP at PPP, and average GDP at PPP, of the countries in the first category in the year of the respective agreements.

Table of the own author. Miscellaneous sources accessed from World Bank (2020).

Graph 2 - GDP at PPP, and average GDP at PPP, of the countries in the second category in the year of the agreement with the EU.

Table of the own author. Miscellaneous sources accessed from World Bank (2020). 0 100 200 300 400 500 600 700 800

GDP (PPP) in US$ (billions)

0 1000 2000 3000 4000 5000 6000 7000 8000 9000 10000

ASEAN Singapore Colombia Ecuador Japan Peru South Korea Total Average

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Graph 3 GDP at PPP of Canada, the only country belonging to the third category.

Table of the own author. Sources accessed from World Bank (2020).

Graph 4 GDP at PPP of Canada, the only country belonging to the third category.

Table of the own author. Sources accessed from World Bank (2020).

What can be observed from the graphs is that the hypothesis 3 seems to be disproven in most of the cases and that the more a country is economically dependent from the EU the less the clause is detailed. However, exception is to be made for the case of Singapore. As it was mentioned above, reference to the UDHR was made through a reference clause to the

0 200 400 600 800 1000 1200 1400 1600 1800 2000 Canada

GDP (PPP) US$ billions

0 5000 10000 15000 20000 25000 2011 2012 2013 2014 2015 2016 2017 Average

EU GDP (PPP) in US$ billions

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EU-Singapore Partnership and Cooperation Agreement (EUSPCA) (European Commission 2020a). Here, although on the theoretical level reference to the UDHR is made in the essential elements of the agreement, as well as in the preamble of the agreement, the ‘side letter’ that was introduced in the EUSPCA, prevents the EU to legally challenge Singapore in case of HR violations and de-facto nullifies the validity of the clause (EUSPCA 2014). In this context, economic dependencies and EU economic interest in the region seems to be a valuable explanation for the EU-Singapore side letter (See graph 2 and 4). More precisely, although Singapore’s market is relatively small compared to the EU’s, it enjoys a privileged position due to its membership to the Association of Southeast Asian Nations (ASEAN), which makes it a hub for international trade, and it is a highly integrated economy which enjoys very low to no tariffs with most of the countries in the world (European Commission 2020a; World Bank 2020). Furthermore, the EU has an overall positive balance of trade in goods and services with Singapore and Foreign Direct Investment between the bloc and Singapore in 2017 accounted €334 billion (European Commission 2020a). Therefore, the theory of market symmetries seems to be valuable to explain why the HR clause was not effective in the case of Singapore.

4.4. Geopolitical and other interests

For the EPAs case, a discourse that revolves around geopolitical interests can offer a possible explanation for a less strict clause that was agreed in relation to African and Pacific partners. Both in the African continent and Pacific islands, China is of particular influence. Indeed, in the past two decades China has been one of most relevant donors in financial aids (Sun 2014). For the African case, the Chinese Government provides ‘non-strings attached’ assistance which consists of zero-interest loans, grants, debt relief, and concessional loans (Sun 2014), in exchange of secured natural resources in the African countries. Furthermore, China provides unofficially assistance to African countries through equity funds that stimulate Chinese companies to invest in African countries, but also the establishment of a fund to ‘on-lend up to US$1 billion to African small and medium enterprises through local African banks’ (Sun 2014). According to data presented by Johan Hopkins University (JHU) (2020), in 2016 the total of loans granted to African governments amounted to roughly US$ 30 billion, with Cameroon being over all the biggest recipient. China is particularly active in terms of financial aid/loans in the Pacific area too (JHU 2020). Both the Fiji and Samoa have received substantial

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financial aid from China (JHU 2020). More specifically, forms assistance for both countries included debt forgiveness, loans for the building of infrastructures (JHU 2020). Furthermore, China pledged around US$ 4.5 billion in assistance to the Pacific region, surpassing the aid pledged by the US and Australia (JHU 2020). As a consequence, the geopolitical influence of China on the African and Pacific countries and the non-strings attached aid proposed by it, might explain why the EU to negotiated and agreed on a less detailed HR Clause. Differently, Geopolitical considerations and interests do not seem to explain why countries belonging to the second and third category have more detailed clause (with exception of the smaller South American countries, which have a high political interest in the EU) Indeed, other actors, such as the US for Canada, and again China for the Asian Countries is of particular influence for them. Nonetheless, the EU succeeded in negotiating a more detailed clause.

4.5. Conclusions

The research has found that Hypothesis 1 and Hypothesis 3 are in most of the cases disproven and they cannot be used to explain different categories of the HR Clause, whilst Hypothesis 3 (on geopolitical factors) is partly proven for the case of EPAs, and Hypothesis 2, which states that ‘countries that are further removed from the observance of HR have a less detailed HR Clause’, seems to be the most plausible to explain a different inclusion of the HR clause in EU agreements. Indeed, the data presents a situation of where the further a county is removed from HR observance, the less the clause is detailed (this is the case for all the EU-EPAs cases), whilst countries like Canada, which is notably a global leader in the promotion of HR, has signed an agreement that makes reference both to UDHR and European/Canadian norms. Also economic dependencies between the EU and its partners, with the exception of the EU-Singapore FTA, do not seem to be a valuable explanation for the different approach, since less developed economies have negotiated a less detailed clause with no reference to international norms, whilst economies that have more significant market influence, all make reference at least to UDHR for the upholding of HR. Finally, geopolitical influences, especially in relation to developing countries, seem to also play an important role for the inclusion of the HR Clause, as it was proven with the case of EPAs.

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5. The implementation of the HR Clause in EU trade agreements.

5.1. Development of HR and LGBTI Human Rights

Graphs 5 – Development of HR and HR LGBTI for countries in Category 1 (2012)

0 1 2 3 4 5 6 7 8 9 2011 2012 2013 2014 2015 2016 2017

Category 1 (2012)

Madagascar Mauritius Zimbabwe

0 0.5 1 1.5 2 2.5 3 3.5 4 4.5 2011 2012 2013 2014 2015 2016 2017 2018 2019 Category 1 LGBTI progress (2012; author's rank)

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Graphs 6 – Development of HR and LGBTI HR for countries in Category 1 (2013) 6.9 7 7.1 7.2 7.3 7.4 7.5 7.6 2011 2012 2013 2014 2015 2016 2017

Category 1 (Seychelles; 2013)

0 1 2 3 4 5 6 7 2011 2012 2013 2014 2015 2016 2017 2018 2019

Category 1 LGBTI progress (Seychelles; 2013;

autohr's rank)

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Graphs 7 – Development of HR and LGBTI HR for countries in Category 1 (2014) 0 1 2 3 4 5 6 7 8 2011 2012 2013 2014 2015 2016 2017

Category 1 (2014)

Cameroon Fiji 0 1 2 3 4 5 6 7 8 9 2011 2012 2013 2014 2015 2016 2017 2018 2019

Category 1 LGBTI progress (2014;

author's rank)

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Graphs 8 – Development of HR and LGBTI HR for countries in Category 1 (2016) 5.5 5.7 5.9 6.1 6.3 6.5 6.7 6.9 7.1 7.3 7.5 2011 2012 2013 2014 2015 2016 2017

Category 1 (2016)

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0 1 2 3 4 5 6 7 8 9 2011 2012 2013 2014 2015 2016 2017 2018 2019

Category 1 LGBTI progress (2016; author's rank)

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Graphs 9 – Development of HR and LGBTI HR for countries in Category 2 6 6.5 7 7.5 8 8.5 2011 2012 2013 2014 2015 2016 2017

Category 2

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0 2 4 6 8 10 12 2011 2012 2013 2014 2015 2016 2017 2018 2019

Category 2 LGBTI progress (author's rank)

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Graphs 10 – Development of HR and LGBTI HR for countries in Category 3.

Graphs of the author. Miscellaneous sources accessed from ILGA (2020); Human Freedom Index (2019). 8.45 8.5 8.55 8.6 8.65 8.7 8.75 8.8 2011 2012 2013 2014 2015 2016 2017

Category 3 (Canada; 2017)

0 1 2 3 4 5 6 7 8 9 10 2011 2012 2013 2014 2015 2016 2017 2018 2019

Non-trade issues in EU trade policy: the EU promotion of LGBTI Human Rights