7 Colum. J. Eur. L. 307 (2001)
Diego J. Linán Nogueras. Ph.D., Professor of Public International Law and Jean Monnet Chair of European Law at the University of Granada.
Luis M. Hinojosa Martinez. Ph.D., LL.M. (Lond.), Professor of Public International Law and European Law at the University of Granada.
The establishment of a nexus between respect for human rights and external trade is a relatively recent phenomenon in international practice. Making the European Union’s economic relations with third countries depend on respect for fundamental rights is an apparently simple political operation, that enjoys wide support because of the virtue of its aim;’ hence its excellent reception by the institutions (European Parliament, Commission, Economic and Social Committee and, in a certain sense, the European Court of Justice (ECJ) itself) and by commentators giving rise to profound and extensive doctrine. The appearance of this connection has been facilitated by a favorable international situation, particularly identified with the universalization of human rights and by a progressive weakening of the legal international mechanisms protecting sovereignty. To these must be added the growing awareness of international public opinion about the horrid and tragic happenings in the last two decades, which has been promoted by the extraordinary advances in the communications media and by the efficient work of many non-governmental organizations (NGOs) in censuring such acts and bringing them to public attention.
The fact that the European Union (EU) rather than the individual Member State assumes this responsibility has various advantages. In the first place, the economic pressure exerted by the EU when it acts as a cohesive whole is much greater, providing a stronger incentive for the third country, who will also find itself facing a more powerful enemy if it intends to adopt countermeasures. In the second place, once the EU’s position on this issue is known, those States who want to strengthen their trade relations with the Union know that they must pay particular attention to their human rights policy if they are to avoid difficulties. Of course, the requirements are much more demanding if they wish to accede to the Union.
However, although these principles and their aim are widely shared, conditionality in international trade relations poses multiple problems from various philosophical and moral, as well as political, legal and, of course, economic angles. The present debate in the EU is not centered on the legitimacy of the link between trade and human rights, which is widely accepted, but rather on the nature of the measures that can be adopted with a solid basis of international legitimacy and legality.
When analyzing the problem of conditionality in the EU’s external policy, a clear distinction must be made between conditionality measures and aid programs for the promotion of human rights and democracy in the world, since each has a different framework of legality and legitimacy. The promotion programs essentially operate in the field of “aid,” or even of “humanitarian assistance.” Therefore, their parameters of legality/legitimacy are situated in the context of the general duty of cooperation between States (Resolution 2625 (XXV) of the General Assembly of the United Nations), or, in more problematical cases, in a notion such as the “right/duty to intervene,” which according to some authors is being consolidated as an exception to a weakened principle of non-intervention in States’ internal affairs. Although these aid programs make up the EU’s main instrument for the promotion of respect for human rights in developing countries, they do not directly determine trade relations with these countries and require a different analysis. When we speak of the conditionality of the EU’s external trade, we refer to the measures of commercial liberalization that are offered to those countries who commit themselves to respect specific fundamental rights (positive conditionality), as well as the withdrawal of unilateral trade concessions, non-compliance of treaty obligations, economic countermeasures and trade sanctions carried out as a reaction to the violation of human rights in a third country (negative conditionality). As will be seen later, these latter measures pose much more complex questions of legality and legitimacy than the former.
In any case, it does not seem excessive to comment on the late appearance of the phenomenon of conditionality in the EU’s external trade, bearing in mind that the first text that made an appraisal of the overall problem dates from 1995. In our opinion, the keys to explain this delay are found in two factors, which are more connected to the step-by-step construction of Europe than with the world of political choices. These two factors, which, to an extent, run parallel to each other, are the slow creation of the European Union’s own legal and political system in relation to democracy and fundamental rights and freedoms, and the no less slow and difficult articulation of political cooperation in European external policy. We shall look at each of these elements in turn.
It is well-known that the European system of integration set out in the originating Treaties of the fifties did not contain any provisions about the political systems of its Member States nor any protection for fundamental rights and freedoms. Subsequently, with the evolution of the model and the successive modifications of the constituent Treaties, this void has been more than filled, both with respect to fundamental rights and freedoms, and to the demand that democracy be the system of government of the EU’s Member States. Although for many the question has been resolved only in part,” in these issues that concern us here, it can be stated that the consolidation ad intra of the guarantee of fundamental rights and freedoms is firmly entrenched and it would be difficult to dispute the EU’s commitment in this area now.
However, at the same time it must be observed that the slowness and difficulty of this internal legal clarification has proved a burden when establishing a trade policy committed to the defence of fundamental rights and freedoms. The linking of the internal and external aspects in the field of human rights is a constant in the most relevant European texts on this subject. The second key that explains the delay comes from the slow but sure introduction of political elements in the Community’s external economic relations. In the original wording, the Treaty of Rome designed a trade policy exclusively directed at the “progressive abolition of restrictions on international trade” (Article 131 of the Treaty Establishing the European Community [TEC], ex Art. 110 of the Treaty Establishing the European Economic Community [TEEC]), as a complement to the customs union, or even more, as an exterior projection of the Common Market. Starting from that base, an extraordinary growth in the external competences of the EC took place, which include the introduction of express competences in the field of development cooperation (Articles 177-181 of the TEC), and a system for applying sanctions to third States (Article 301 of the TEC), as well as the progressive introduction of European Cooperation in the sphere of foreign policy, which eventually would become the Common Foreign and Security Policy after the Treaty of the European Union (TEU). It was when the EU became aware of its capacity as a political actor that it made clear the role that it could play using its commercial power in defence of human rights.
Moreover, there are two external factors that facilitate the development of the discourse on conditionality in the external trade of the EU in the last decade. Firstly, the political reality of the bipolar order until the end of the eighties made it impossible to establish any type of conditionality in relations with the Central and Eastern Europe Countries (CEECs) or with the rest of the countries in the U.S.S.R.’s sphere. Although it was for other reasons, the developing countries also did no accept conditionality during that period, since many had gained their independence only recently and belligerently defended both the right of every people to choose freely its political system, and the principle of non-intervention in the internal affairs of other States. Once this bipolar order disappeared in the nineties, the process of universalization of human rights accelerated, which generated a relativization of the principle of sovereignty, while at the same time, some of the political obstacles put up by the developing countries disappeared.
Secondly, some sectors of the trade unions and employers organizations began to denounce the deplorable conditions of work in which some goods were produced in certain developing countries. They demanded the adoption of trade restrictions to protect themselves from what they considered unfair competition,”‘ which encouraged the violation of economic and social rights in poor countries. To this objection, some NGOs added public awareness campaigns and pressure on the institutions. If this debate had its origins in protectionist interests, with time the EU has tackled this question from a promotional perspective in the context of development cooperation, reserving negative conditionality for the most serious cases of human rights abuses (e.g. slavery).
In any event, what we are concerned with here is that all these factors have contributed to delay the appearance of a sound political discourse on conditionality in the EU’s external trade. Nevertheless, the present-day political scene is totally different from that of the first decades of the Community, and its discourse now goes beyond that of any other international organization. In fact, it would be no exaggeration to say that the Union’s discourse in this context is very similar to that of the most advanced States, with all their virtues and defects.
In an international system governed by the principles of sovereign equality and independence of States, it is evident that unilateralism,’9 discretionality and extraterritoriality, which seem to be all of a piece with conditionality, raise serious problems of legality and legitimacy. In fact, these measures are on the dividing line that separates a committed policy defending certain values from an imperialist or protectionist one. In consequence, the discourse of economic conditionality demands a well-constructed legal system to avoid excesses and departures from its aim.
Clearly, the subject is not new in the international field. It is enough to remember the serious debate in the United States on the reforms undertaken in the seventies with the Foreign Assistance Act of 1966,”1 and which emerges with intensity from time to time in United States foreign policy on the occasion of several particular crises (Helms-Burton Act, Iran and Libya Sanctions Act, etc.).
However, what is new is the establishment of a policy of this nature in a political-institutional as special as the European Union. These reflections are thus directed primarily at describing the legal and institutional bases on which the discourse on conditionality is built (Section II), so that the specific mechanisms created for its application in the EU’s external trade can be examined (Section II1). We shall then be in a position to study separately the parameters of legality and legitimacy by which these measures must be judged (Section IV).competences of the EC took place, which include the introduction of express competences in the field of development cooperation (Articles 177-181 of the TEC), and a system for applying sanctions to third States (Article 301 of the TEC), as well as the progressive introduction of European Cooperation in the sphere of foreign policy, which eventually would become the Common Foreign and Security Policy after the Treaty of the European Union (TEU). It was when the EU became aware of its capacity as a political actor that it made clear the role that it could play using its commercial power in defence of human rights.
Moreover, there are two external factors that facilitate the development of the discourse on conditionality in the external trade of the EU in the last decade. Firstly, the political reality of the bipolar order until the end of the eighties made it impossible to establish any type of conditionality in relations with the Central and Eastern Europe Countries (CEECs) or with the rest of the countries in the U.S.S.R.’s sphere. Although it was for other reasons, the developing countries also did not accept conditionality during that period, since many had gained their independence only recently and belligerently defended both the right of every people to choose freely its political system, and the principle of non-intervention in the internal affairs of other States. Once this bipolar order disappeared in the nineties, the process of universalization of human rights accelerated, which generated a relativization of the principle of sovereignty, while at the same time, some of the political obstacles put up by the developing countries disappeared.
Secondly, some sectors of the trade unions and employers organizations began to denounce the deplorable conditions of work in which some goods were produced in certain developing countries. They demanded the adoption of trade restrictions to protect themselves from what they considered unfair competition,”‘ which encouraged the violation of economic and social rights in poor countries. To this objection, some NGOs added public awareness campaigns and pressure on the institutions. If this debate had its origins in protectionist interests, with time the EU has tackled this question from a promotional perspective in the context of development cooperation, reserving negative conditionality for the most serious cases of human rights abuses (e.g. slavery).
In any event, what we are concerned with here is that all these factors have contributed to delay the appearance of a sound political discourse on conditionality in the EU’s external trade. Nevertheless, the present-day political scene is totally different from that of the first decades of the Community, and its discourse now goes beyond that of any other international organization. In fact, it would be no exaggeration to say that the Union’s discourse in this context is very similar to that of the most advanced States, with all their virtues and defects.
In an international system governed by the principles of sovereign equality and independence of States, it is evident that unilateralism,’9 discretionality and extraterritoriality, which seem to be all of a piece with conditionality, raise serious problems of legality and legitimacy. In fact, these measures are on the dividing line that separates a committed policy defending certain values from an imperialist or protectionist one. In consequence, the discourse of economic conditionality demands a well-constructed legal system to avoid excesses and departures from its aim.
Clearly, the subject is not new in the international field. It is enough to remember the serious debate in the United States on the reforms undertaken in the seventies with the Foreign Assistance Act of 1966,”1 and which emerges with intensity from time to time in United States foreign policy on the occasion of several particular crises (Helms-Burton Act, Iran and Libya Sanctions Act, etc.).
However, what is new is the establishment of a policy of this nature in a political-institutional as special as the European Union. These reflections are thus directed primarily at describing the legal and institutional bases on which the discourse on conditionality is built (Section II), so that the specific mechanisms created for its application in the EU’s external trade can be examined (Section III). We shall then be in a position to study separately the parameters of legality and legitimacy by which these measures must be judged (Section IV).
