Abstract
This article examines the nature of the EU’s obligations in relation to human rights and social norms in its free trade agreements (FTAs) with a view to problematising the extent to which such clauses are justiciable and enforceable. While human rights do not fall within the area of exclusive EU competence, it is widely accepted that the EU may be liable for contributing to human rights violations in the context of trade agreements under international law and EU law. Conversely, it will be shown that social norms, including labour standards and principles such as sustainable development and environmental protection, which are increasingly set out in the Trade and Sustainable Development (TSD) chapters of FTAs, raise more complex questions regarding the territorial reach of EU law. It is submitted that EU FTAs are constructed in such a way as to exclude rights with the effect that the extraterritorial obligations of the EU in relation to human rights clauses and social norms are unlikely to be judicially enforceable in practice. However, in spite of the territorial limitations of EU law in relation to human rights clause and social norms, recent developments in the case law of the Court of Justice of the EU (CJEU) suggest that the EU is nevertheless under an obligation to ensure its trade agreements with developing countries are conducted in a ‘development-friendly’ manner. To conclude, this article advances the argument that the obligation to engage in ‘development-friendly’ trade may serve to extend the territorial reach of EU further, albeit within the confines of trade and cooperation agreements.
Highlights
As the world’s largest trading bloc and the second largest economy, the European Union (EU) has established itself as a significant market power[1] in the global trading system and its global reach has been expanded through an increasingly complex web of free trade agreements (FTAs)
While human rights do not fall within the area of exclusive EU competence, it is widely accepted that the EU may be liable for contributing to human rights violations in the context of trade agreements under international law and EU law
It will be shown that social norms, including labour standards and principles such as sustainable development and environmental protection, which are increasingly set out in the Trade and Sustainable Development (TSD) chapters of FTAs, raise more complex questions regarding the territorial reach of EU law
Summary
As the world’s largest trading bloc and the second largest economy, the European Union (EU) has established itself as a significant market power[1] in the global trading system and its global reach has been expanded through an increasingly complex web of free trade agreements (FTAs). The legal framework of the EU ‘assigns a more circumscribed role to human rights within the context of internally focused EU policies and the dominant focus is external, empowering and even obliging the EU to actively promote human rights in its international policies’.39 It is the two-tier system that ‘strikes at the heart of the principle of universality on which human rights rest both legally and conceptually’[40] and reveals the hypocrisy of the EU as a normative actor that rhetorically promotes universal values but in reality curtails the extent to which such universal values are protected
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