Abstract
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. Internal rules of the EU, namely the Founding Treaties and the Charter of Fundamental Rights, and various external norms, that is international law sources, impose human rights obligations on the EU. Those human rights obligations are increasingly interpreted by treaty monitoring bodies as requiring extraterritorial due diligence duties from States parties, in the sense that the creation of substantial and foreseeable effects outside the State’s territory establishes the jurisdiction of the State party. This jurisdiction leads to positive obligations, namely the duty to exert due diligence on trade and investment policies. The EU is expected to assess the risks of human rights violations by its trade and investment partners in and outside its Member States and take all reasonable efforts to avoid foreseeable human rights violations. Although those human rights are likely to continue to be unenforceable before the Court of Justice, the consistent reference to due diligence obligations by treaty monitoring bodies, the European Ombudsman and the European Data Protection Supervisor should encourage EU institutions to comply with their due diligence obligations.
Highlights
It is generally accepted in the case law, and arguably under customary international law, that international human rights conventions protect individuals when the State party performs its conduct outside its territory.1 it is much more uncertain whether international human rights law protects individuals abroad from the extraterritorial effects of the domestic policies of States, and a fortiori international organisations (IOs)
The European Union (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
Those human rights are likely to continue to be unenforceable before the Court of Justice, the consistent reference to due diligence obligations by treaty monitoring bodies, the European Ombudsman and the European Data Protection Supervisor should encourage EU institutions to comply with their due diligence obligations
Summary
It is generally accepted in the case law, and arguably under customary international law, that international human rights conventions protect individuals when the State party performs its conduct outside its territory. it is much more uncertain whether international human rights law protects individuals abroad from the extraterritorial effects of the domestic policies of States, and a fortiori international organisations (IOs). CJEU later confirmed in a preliminary ruling that neither the Fisheries Agreement nor the Protocol thereto are applicable to the waters adjacent to the territory of Western Sahara, and the EU acts relating to their conclusion and implementation are valid.7 What this case law shows is the importance of the protection of human rights in the external action of the EU. The present paper examines the EU’s human rights obligations in the context of its external trade and investment policies and submits that while the dominant case law and the primary law of the EU impose an enforceable obligation to respect the human rights of persons affected by the Common Commercial Policy, a dynamic view addressing due diligence obligations is recommended by human rights bodies inside and outside the institutional structure of the EU. The conclusions clarify that the EU’s extraterritorial human rights obligations include procedural duties both as to the negotiation phase of international trade agreement and in respect of their implementation
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