Legal Issues Of Human Rights Clause In The External Relations Of The European Union

Especially since the early 1990s, orientation towards human rights has become more and more apparent in the external relations of the European Union(’EU’). A commitment to respect, promote and protect human rights and democratic principles is a key element of the EU’s relations with third countries. To meet those commitments, EU has introduced a broad range of instruments at its disposal, such as:(a)the human rights conditionality in the context of the EU enlargement, with which the candidate countries have to comply during the acceding process; (b) the human rights conditionality in the autonomous legislations on the GSP as well as financial and technical assistance, which plays the double role of carrot and stick; and (c)the human rights diplomacy under the CFSP pillar. Compared with all these basically unilateral human rights instruments, the systematic introduction of human rights clauses (’HRC’)in the bilateral agreements concluded by the European Community(’EC’) with third countries or groups has become a much publicized feature of the EU’s external relations. While many industrialized countries attributed high priority to human rights issues, the approach chosen by the EU in the external agreements is without doubt unique, considering its smoothness, flexibility and proactive nature.HRC originates from the practical need to suspend EC’s bilateral agreements with ACP counties (i.e. Lome I Convention) in case of serious breach of human rights in the middle of 1970s. Through persistent insistence of the EU in the treaty-making practice towards third countries, HRC has gradually evolved into one of the most distinguished instruments in the EU’s external human rights policy. According to the 1995 Commission Communication on HRC, the model HRC comprises preambular recitals, essential element clause, non-execution clause, and interpretative declaration. Respect for human rights, democratic principles and sometimes the rule of law is generally defined by the essential element clause as the basis of the domestic and external policies of both contracting parties, and also constitutes the essential element of the agreement. As a complementary clause, non-execution clause stipulates procedures and institutions for the adoption of’appropriate measures’by the innocent party, which ensures the operative nature of the HRC. HRC provides EU with a clear legal basis to take restrictive measures(sanctions), and even to suspend or terminate external agreements against third countries in response to serious and persistent violations of human tights or interruptions of the democratic process. By virtue of the bilateral nature of the external agreements, HRC is at least formally reciprocal, and therefore, overcome to great extent the accusation of intervention in the internal affairs of third countries when it comes to the traditional unilateral human rights instruments, which turns out to be one of the main reasons for the acceptance of third countries. In any way, the inclusion of HRC has become a general practice in international agreements negotiated or concluded by the EC with third countries.From the perspective of general international law, it is quite self-evident that essential element clause responds to the general principle of respect for human rights in international law, and follows the rule laid down in Article 60(3) VCLT which allows for the suspension or termination of the treaty due to a material breach. As for the non-execution clause, reference is generally made to the rules governing the use of countermeasures in the international law on State responsibility. Moreover, some EC’s agreements even contain dispute settlement procedures with different nature ranging from non-binding conciliation to binding arbitration, to which both contracting parties could logically resort for any dispute concerning the implementation and interpretation of the HRC. Besides, some advanced HRC, such as the HRC in the Cotonou Agreement, at the same time reforms and develops the rules of general international law from deferent dimensions. To sum up, HRC reflects the rule-oriented trend of EU’s human rights diplomacy, and in this sense can be regarded as a significant contribution to the international protection of human rights.From the perspective of EU Law, however, there is no sufficient legal bases for Community powers with regard to include and implement HRC in both the EU and EC basic Treaty. Not handicapped by the controversy over Community competence to include the HRC in international agreements though, the thin legal bases will unavoidably constrain the HRC’s implementation under the EU inner architecture. What is worse, due to the lack of a systematic internal implementation mechanism for almost all agreements with the HRC, the problem of incoherence and inconsistency is rampant between the EU and EC, the EU main institutions, as well as EU and its member states. Notwithstanding, the inner agreements of Lome IV bis Convention and Cotonou Agreement respectively stipulates measures to be taken and procedures to be followed for the implementation does in certain degree resolve such a troublesome problem, which set up a good example for other HRC’s implementation. In practice, the success and effectiveness of the HRC does not match its formulation in terms of the negative measures. Whereas, it is repeatedly emphasized by the EU documents on external human rights policy that the principal rationale for the HRC is to form a positive basis for advancing human rights in third countries through dialogue and persuasion. In other words, the preference is to use positive measures rather than negative or punitive ones. However, considering EU’s practice in international relations, the HRC can never get rid of the accusation from third countries of unilateralism, double standard and power politics.The Treaty of Lisbon brings the EU legal system with a variety of unprecedented changes in various aspects, which also benefits the future development of the HRC, such as the more consolidated and sufficient legal bases for the HRC, the improvement of coherence and consistency of EU’s external relations, and the enhancement of the role of European Parliament(’EP’) in the decision-making process. Moreover, the EP has been very active over the years concerning the HRC, with a special focus on the monitoring and implementation of the clause, as well as the role of EP and civil society. Predictably, with the entry into force of the Treaty of Lisbon and EP’s reform motion transformed into legal documents by the Council and Commission, the HRC will cover all international agreements concluded by the EC with third countries or groups, including the sectoral agreements and agreements with developed countries. Most important of all, the new model clause will be better designed and become more reasonable and acceptable; role of the HRC will be greatly enhanced as the objective clause in future agreements; its monitoring and implementation mechanism will definitely be more and more democratic, transparent and effective. EU’s HRC is absolutely a new creature in the international system for the protection of human rights, and therefore, unavoidably carries both advantages and disadvantages at present. This doctoral thesis engages with a thorough analysis on the legal issues of the HRC so as to provides legal expertise for Chinese government in the context of ongoing negotiation of Sino-EU Partnership and Cooperation Agreement(’PCA’). Faced up with EU’s insistence on the inclusion of the HRC in the future PCA, our Chinese government has to make a prudent decision from both the legal and political perspectives. On the one hand, if the HRC is to be accepted, the possible legal challenges of the HRC need to be considered carefully, especially the negative measures taken currently by the EU against third countries; if not, on the other hand, the political chances to the future elevation of Sino-EU relationship will be destined to pass away. Drawing a balance between the challenges and chances, the broad context of ’Comprehensive Strategic Partnership’should no doubt be deemed as the first and foremost criteria for Chinese government. In the long run, it seems reasonable for China to welcome the insertion of HRC in the PCA with the aim to enhance Sino-EU bilateral relations into a higher level through this new global agreement. Nevertheless, China should adhere to the principle of’qualified acceptance’of the HRC in order to decrease those negative legal challenges. That is to say, the HRC must be designed in a truly reciprocal way which reflects and respects China’s will. Last but not the least, whether the Sino-EU relationship will keep a positive and friendly atmosphere is also essential to the final decision of our Chinese government.