The EU's Human Rights Obligations in Relation to Policies with Extraterritorial Effects

Abstract

That states can be responsible for the effects of their economic policies in third countries is not controversial. Thanks to a network of international trade agreements, virtually all states are under obligations designed to protect the economic interests of the producers of imported goods and services. And yet the proposition that states should also be responsible for the human rights effects of such policy measures is not universally accepted. Thus, a subsidy that causes injury to the domestic industry of a WTO Member or a market access barrier that negatively affects conditions of competition for imported products can violate trade obligations. But even if those effects on the producers of those products are severe, it is debatable whether they are capable of violating any given human rights obligations. In short, the extent to which human rights obligations apply to policies with extraterritorial effects is still very much an open question. This article considers the extent to which EU law applies to such policies, which is to say EU policies with extraterritorial effects on persons outside of EU territory. Section A discusses the human rights aspects of Article 3(5) and Article 21 of the Treaty on European Union (TEU), which date from the 2009 Lisbon Treaty. Section B looks at the jurisprudence of the EU Court of Justice on EU fundamental rights as these exist as general principles of EU law and in the EU Charter of Fundamental Rights, as influenced by the European Convention on Human Rights (ECHR). Section C discusses the EU’s obligation to comply with its international obligations, including with the human rights clauses found in all EU trade and cooperation agreements and with customary international law. Section D considers the enforceability of these obligations by the EU institutions and individuals. Section E summarises and concludes.