The European Union's External Human Rights Commitment: What is the Legal Value of Article 21 TEU?

Abstract

The Lisbon Treaty fundamentally changed the constitutional architecture of EU external action. As general principles, Article 21 and 3(5) TEU commit the EU to protect and promote human rights globally when developing and implementing its foreign policies. The legal value of this mandate and its concrete policy implication, however, have remained neglected by policy makers and legal scholarship. Aiming to provide a clear framework (of what can be done and what must be done) in EU foreign policy, this paper analyses the meaning of the human rights objective in the context of the vertical and horizontal division of competence (the 'can') and in context of fundamental rights protection endorsed by the EU (the 'must'). This analysis leads to two conclusions. In terms of the 'can,' the human rights objective gives new normative impetus that enables EU human rights policy to overcome its previous limited conception as being primarily a development concern or a mechanism for third country conditioning. In terms of the 'must,' Article 21 TEU should be seen in connection with the EU's fundamental rights responsibility that breaks with the territorial/extraterritorial dichotomy, which still cabins conventional international human rights jurisprudence and doctrine. The 'can' allows for sufficing the 'must,' which prescribes a human rights policy that is global in its extent and self-constraining in substance. Thereby the human rights objective exhibits a progressive concept of human rights responsibility that is able to adequately take into account the global reach of the EU’s legislative action.