Guide Promoting Democracy and the Rule of Law: American and European Strategies

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Indeed, it is now widely recognised that business operations affect the public interest and can impact on a range of human rights. However, the promotion and protection of human rights externally presents many challenges. In the first place, there are problems concerning vertical and horizontal consistency requiring all the Member States within the EU to speak with one voice in their external relations and, linked to this, the persistence of inter-institutional conflict at EU level. While internal cohesiveness is not a sufficient condition for the effectiveness of EU external action to occur and other factors need to be taken into account, such as bargaining configuration between the parties, 16 achieving and maintaining a common position at the EU inter-institutional level is a necessary condition for ensuring consistency in policy implementation.

Against this background, the paper explores and critiques selected aspects of the development of EU human rights promotion and integration in its external trade relations. The analysis starts with an examination of the fragmented human rights protection legal regime of the EU with a particular focus on the impact of the ToL. This analysis is important because it shows that despite the foundational and pervasive character of human rights in EU law —which has been made even more visible by the introduction of certain constitutional changes of the ToL— the legal framework for the respect of human rights remains fragmented and does not provide for a coherent legal system of human rights protection in both the internal and external sphere of EU action.

The paper then looks at the way the EU integrates human rights in its unilateral trade arrangements and regional and bilateral trade agreements.

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After having identified the main shortcomings concerning the practice of EU human rights conditionality it considers whether ex ante human rights-informed impact assessments combined with ex post evaluations can help improve the methodology for measuring the trade sustainability and human rights impact of trade agreements. The paper thus considers whether these improved impact assessments may be one of the ways to effectively tackle the extant limitations of EU human rights conditionality together with trade agreements, which are tailored to the specificities of the third country concerned.

The added value of these changes is that they would not require any further Treaty reform to ensure better promotion and respect for human rights. Together Articles 2 and 6 TEU:. They permeate the EU legal order in multiple forms: as primary law codified in the Charter , as general principles extracted from International Human Rights Law and common constitutional traditions of the Member States , and as minimum standards for action on the international scene in accordance with international law.

This omission was not accidental but the result of a deliberate choice. It shows how the Court resisted attempts by litigants to invoke fundamental rights and was unwilling to treat them as part of the Community legal order.

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Yet, this has not impeded the EU to develop narratives on fundamental rights at a later stage, which claim retrospectively that fundamental rights are and have always been inherent in the EU. In addition, the above human rights Treaty provisions do not make any reference to territory or jurisdiction. However, this may prove to be difficult in practice. The Charter rights and the standing rules for judicial review seem to be at variance with each another. The ruling also seems to ease the above tension between rights and NPAs legal standing in a number of respects.

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First, Frente Polisario, a national liberation movement for the independence and autonomy of the Sahrawi people in Western Sahara territory that is under the control of Morocco, has been found to have legal standing. Second, the EU is under an obligation to ensure respect for the fundamental rights of non-EU nationals in non-EU territory.

Another limitation of the Charter is that not all of its provisions can have direct effect as illustrated by those provisions concerning social rights. A careful reading of the Charter shows that the legally binding status it has acquired has not had the desired impact in relation to the qualification and place given to social rights. Only individual social rights are fully justiciable.

Chapter IV on Solidarity includes individual rights, guiding principles and objectives. For example, Article 34 EUCFR on social security and social assistance is considered a mere objective, 35 while Article 28 EUCFR on the right of collective bargaining is a guiding principle since its practical specification is left to national legislation. The first reason for such interpretation is that they are formulated in fairly concrete terms and seem capable of conferring a subjective right on individuals given their specific wording. The place of this provision within the EU acquis is further reinforced through secondary legislation based on Article 46 TFEU and its precursors.

Since the emergence of the internal fundamental rights regime, human rights have also become an important component of EU external relations. Taken together these provisions seem to require that the EU respects human rights in its external action and also in its internal policies with an external dimension. The various human rights provisions introduced by the ToL are considered to buttress the role of the EU as a global human rights actor.

Firstly, the EU lacks a serious and coherent human rights policy and mechanism, which applies also to its Member States. Secondly, and linked to the former, the EU maintains double standards between its internal and its external policies. In spite of the broad set of objectives laid down by Articles 3 5 and 21 TEU these two provisions do not confer new competences on the EU. Hence, some observations are warranted. In part, the EU seeks to exert some degree of political and economic domination over third countries because the failure to export its standards developed within its Internal Market to others outside the EU would put European firms at a competitive disadvantage.

Moreover, by acting as a global regulator, the EU can defend its social preferences without compromising the competitiveness of its industries. The ToL has given the EU Parliament a stronger role in relation to the conclusion of international agreements, which is of great significance given that it constitutes a formally independent voice for EU citizens 55 and that it is a strong human rights advocate. This flows from its ongoing commitment to the protection of human rights generally as well as its democratic legitimation function that may be said to be independent and separate from that of the Member States.

The EU Parliament has been given a right to be informed at all stages of the procedure for adopting international agreements. That said, the role of the EU Parliament remains limited in the context of the Common Foreign and Security Policy CFSP , including human rights matters, and can only exercise influence on the general policy choices. Kadi is illustrative.

As posited by Martines:. Linked to the autonomy of the EU legal order, the current constitutional framework —anti-discrimination law being an exception— does not envisage a major role for human rights in the EU internal policies 79 and, more generally, any legal or constitutional discussion of human rights issues concerning the EU is still constrained by the lack of or limited EU competence and powers.

This fragmented legal framework for the promotion of human rights is somewhat in contradiction with the fact that the EU is bound by human rights obligations, both of its Member States and of its own. More generally, human rights concerns feature prominently in EU external trade. It was first set up in 85 and since then subject to periodical revision. Through this scheme the EU provides preferential access to the EU market to a certain number of developing countries and territories, in the form of reduced tariffs for their goods when entering the EU market. To this end, it accords tariff preferences to countries, which fulfil certain economic criteria in terms of poverty and non-diversification of exports.

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Secondly, it also aims at improving their political and social situation. The EU has used its power to withdraw access from beneficiary countries very rarely, and only in response to grave violations of ILO labour standards rather than human rights more generally. In the Council withdrew GSP status from Myanmar for forced labour practices, 88 which were then reinstated in June Infringements of CLS have often been reported and the EU Parliament has continuously called upon the Commission to monitor more strictly the compliance with ILO labour standards and asking for the suspension of preferences in respect of countries that breach fundamental social rights.

Consequently, the Commission stopped its investigation in March Even though Articles 3 5 and 21 3 1 TEU require the EU to respect human rights in relation to its external policies and internal policies with external effects, it is unclear whether these provisions require the EU also to protect human rights extraterritorially or to fulfil human rights other than in general terms.

The foregoing provides a mixed picture of the GSP scheme. To date the EU has concluded and is in the process of negotiating an array of international trade agreements, which vary in nature and belong to very different contexts, namely, purely trade relationships to much broader partnerships of which trade is only one element. According to the Commission sanctions under the clause should be reserved only for the most extreme and flagrant violations of human rights.

The sustainable development chapter of the agreement contains obligations on the effective implementation of, and non-derogation from, domestic labour laws, recognition of the ILO decent work principles and their relevance for trade and labour. They are also the first post-Lisbon agreements in the region.

This is important insofar as the inclusion of human rights conditionality in the three AAs is now mandated by EU primary law. All three agreements include two different forms of conditionality. The AAs are premised on the idea that these countries have special privileged links whereby the party must take part in the Union system thus illustrating the process of gradual integration in the EU acquis.

The human rights clauses included in these agreements are conceived differently in comparison with the human rights clauses discussed above due to the legal and political specificities of these countries.