Bartels, L. 2012. A Legal Analysis of The Human Rights dimension of the Euro-Mediterranean Agreements. GREAT Insights, Volume 1, Issue 2. March-April 2012
This article takes a closer look at the human rights clauses in the Euro-Mediterranean association agreements, which have been negotiated and concluded in the context of the Barcelona process. To date, the human rights clauses in the Euro-Mediterranean association agreements have not played a significant role in the EU’s political relations with its Mediterranean neighbours.
Since the early 1990s, the European Union (EU) has maintained a policy of conditioning its economic relations with third countries on their compliance with human rights norms. One of the main elements of this policy is an insistence on the inclusion of ‘human rights clauses’ in all new bilateral trade, co-operation and association agreements that the EU concludes with third countries. The stated purpose of these clauses is to entitle either party to the agreement to take ‘appropriate measures’, including suspending the agreement, in the event that the other party fails to comply with specified human rights norms.
Given the recent social transformations in these countries, and the pressures on the EU Council and Commission from other institutional and non- institutional actors to make more effective use of these clauses, a legal analysis of these clauses seems timely. “What is the scope and operation of the human rights clauses in these agreements? What type of ‘appropriate measures’ can be taken in response to human rights violations? Can these clauses support ‘positive’ human rights policies, involving political dialogue, implementation and financial aid?”
The Human Rights Clauses: how far do they go?
The human rights ‘clauses’ are actually composites of a number of different provisions present in the association agreements. Not all of these provisions are found in all of the Euro- Mediterranean agreements, nor do they have identical wording. In general, the relevant provisions are threefold; the ‘essential elements’ clause, the ‘non-execution’ clause, and finally the provision defining cases of material breach or special urgency, and confirming that in all cases the ‘appropriate measures’ must be ‘taken in accordance with international law’.
Essential Elements Clauses: which human rights?
The ‘essential elements’ clause establishes the respect for the principles of human rights and democracy as an essential element of the agreement. With the possible exception of the Tunisia agreement, which does not mention the Universal Declaration of Human Rights, the human rights norms that are referenced in the Euro-Mediterranean agreements cover the full spectrum of civil, political, social, economic and cultural rights set out in that Declaration, including rights which have not attained the status of customary international law. This wide interpretation is also borne out in practice, based on those occasions on which human rights clauses, including those contained in other agreements, have been invoked (if not applied) within the EU institutions. Human rights clauses have been cited in connection with the Middle East crisis, but also in relation to democratic principle, child sex tourism, female genital mutilation, freedom of speech and labour rights, amongst others.
Non-execution clauses: operationalising conditionality
The ‘non-execution’ clause provides that ‘appropriate measures’ may be taken in cases of a failure to fulfil the obligations in the agreement. One interesting element of the non-execution clause is contained in the first sentence of its first paragraph, which states that:
“The Contracting Parties shall take any general or specific measures required to fulfil their obligations under this Agreement”.
If one makes the assumption that the essential elements clause does establish obligations, then there is no reason why this provision should not have an operative effect in this context. This first sentence could then be interpreted as meaning that the parties are under a positive obligation to do whatever is necessary to fulfil those obligations. At the very least, this would mean that the parties cannot claim that their human rights obligations only apply in the case of positive governmental action. A failure to act could then also lead to a violation of obligations.
In addition, this sentence could have the concrete effect, within the structure of the association agreement, of requiring the parties to implement mechanisms to ensure that the norms set out in the essential elements clause are being respected. This could require the establishment of monitoring and implementation mechanisms, along the lines suggested by the European Parliament.
Appropriate Measures: defining the scope of sanctions
The next question concerns the ‘appropriate measures’ that can be taken in response to a failure to fulfil obligations under the essential elements clause. The first reference to taking ‘appropriate measures’ in the non-execution clause gives no indication as to what such measures might be. The non-execution clause simply says that ‘[i]f either Party considers that the other Party has failed to fulfil an obligation under [the] Agreement, it may take appropriate measures’.
Given the historical origins of the human rights clause, and the context of the non-execution clause, there is little doubt that these measures would include the suspension of any benefits provided under the agreement. The EU Commission said in its 1995 Communication on the human rights clause that the range of appropriate measures could include the suspension of any benefits accorded under the agreement, such as trade preferences, public procurement rights, rights relating to cumulation of rules of origin, and rights relating to special commodity agreements.
There are certain conditions on the ‘appropriate measures’ that might be taken under the non- execution clause. First, all of the Euro-Mediterranean agreements contain the requirement that priority must be given to measures that ‘least disturb the functioning of the agreement’.
This requirement can be explained by the fact that the non-execution clause had the original function of regulating the ‘appropriate measures’ which could be applied in cases of serious damage caused by imports or dumping (that is, safeguard and anti-dumping measures). In this context, the ‘least disturb’ function makes sense, because here the non- execution clause has a primarily defensive rationale.
It seems reasonable to propose that the most obvious way of protecting the ‘functioning of the agreement’ is to ensure that the agreement remains in force wherever this is possible. In practice, this means that measures should be chosen that are less severe than a full suspension or termination of the agreement. Furthermore, if the ‘agreement’ in this phrase is interpreted in terms of its object and purpose, then any measures taken should minimize their impact on the objectives of the relevant agreements, which relate to political dialogue and trade liberalization, with a view to improving the economic and social development of the population. These objectives are best protected by restricting any ‘appropriate measures’ to those that have a limited impact both on the objective of trade liberalization and on the economic and social development of the population of the targeted state.
Consequently, the requirement to take measures that ‘least disturb the functioning of the agreement’ could be understood as meaning that “any negative measures taken under a human rights clause must be as limited as possible, especially in their impact on the populations of the target state”.
In a similar vein, all of the Euro-Mediterranean agreements, except those with Israel and Tunisia, include an additional stipulation that the appropriate measures ‘shall be taken in accordance with international law’. Under international law, countermeasures in response to violations of international obligations are required to comply with principles of proportionality. It seems reasonable to propose that any appropriate measures that are taken under the non-execution clause must now be proportionate to the violation. Indeed, this is stated expressly in the agreements with Lebanon and Egypt, which specify that any appropriate measures must be ‘proportional to the violation’.
From this survey, a number of conclusions may be drawn. First, with two exceptions, all of the Euro-Mediterranean association agreements are ‘based’ on the full spectrum of human rights and principles set out in the Universal Declaration of Human Rights. The exceptions are the agreements with Algeria and Morocco, which do not refer to this Declaration, and therefore probably only include rights with the status of customary international law. Nevertheless, even in these cases, the human rights clause would cover not only civil and political rights, but also social, economic and cultural rights. It is therefore notable that, in the practice of the EU institutions, these clauses are only invoked in relation to civil and political rights, with the exception of labour rights violations. As with the EU’s political human rights dialogue, social and economic rights seem to be ignored.
The second conclusion is that there is legal support for the proposition that the human rights clause should not only be applied negatively, but also positively. The essential elements clause deems human rights and democratic principles to be an issue of common interest between the parties, which means that they can legitimately be insisted on in political dialogue between the EU and its Mediterranean partners. Further, the first sentence of the non-execution clause can be seen as an obligation on the parties to establish monitoring and implementation mechanisms to ensure that human rights and democratic principles are being respected. It is arguable also that ‘appropriate measures’ under the non-execution clause can include positive measures, such as direct funding, in response to non-compliance with the essential elements clause, although this does not conform to current EU practice.
When negative sanctions are adopted, only such measures can be taken as ‘least disturb the functioning of the agreement’. This means that, in the first instance, any sanctions must be limited in scope. Furthermore, under all of the agreements except those with Tunisia and Israel, these measures must be proportional to the violation. It is therefore only in very extreme cases that the entire agreement could be suspended.
In concluding, it might be observed that while the human rights clauses in the Euro-Mediterranean association agreements could have a genuine application, it seems that it is only with a significant change of heart on the part of the EU’s political leadership that their potential can be realized. It remains to be seen whether the Arab Spring revolts provide the political impetus to change the way the EU uses the human rights clauses in the Euro-Mediterranean agreements.
Dr Lorand Bartels is a University senior lecturer in Law and Fellow of Trinity Hall, University of Cambridge.
This article was published in GREAT Insights, Volume 1, Issue 2
Dr. Lorand Bartels