Legal Basis and Scope of the Human Rights Clauses in EC Bilateral Agreements: Any Room for Positive Interpretation?

Date01 March 2001
AuthorElena Fierro
Published date01 March 2001
Legal Basis and Scope of the Human Rights
Clauses in EC Bilateral Agreements:
Any Room for Positive Interpretation?
Elena Fierro*
Abstract: It is well known nowadays that the European Community includes a so-called
human rights clause into the framework agreements that it concludes with third countries.
It is also widely recognised that, in virtue of the relevant provisions of the Vienna
Convention on the Law of the Treaties, such a clause grants the Community a right to
suspend the agreement should human rights and/or democratic principles be breached.
The question to be explored in the present paper is whether, in the light of its legal basis,
the clause ful®ls a mere `negative' or `sanctioning' function or, by contrast, there is room
for the pursuit of positive measures of active promotion of human rightsÐthat is the
granting of technical and ®nancial aid. It is argued here that the clauses present an ideal
starting point for the pursuit of a comprehensive human rights policy at the EU level.
Such a policy should encompass positive measures in the ®rst place, systematic dialogue
in the second, and suspension or negative measures of less extent only as ultima ratio in
particularly grave cases which cannot be addressed through ordinary (dialogue and aid)
I Introduction
Since the early 1990s the European Community includes a so-called `human rights
clause' in all framework agreements signed with third countries. This clause has
evolved over the years, but in its last version it is divided into two parts. The ®rst part
contains an `essential element clause' enshrined in the ®rst provisions of the agreement,
Respect for democratic principles and fundamental human rights [established by the Universal
Declaration of Human Rights] inspires the internal and international policies of the Parties and
constitutes and essential element of this agreement.
The second part is included in the ®nal dispositions of the agreement and awards the
possibility of taking `appropriate measures' in the case of violation of an essential
element. This provision, which is called `non-execution clause', refers again to the
essential elements of the agreement. This reference allows the Community, inter alia,
European Law Journal, Vol. 7, No. 1, March 2001, pp. 41±68.
#Blackwell Publishers Ltd. 2001, 108 Cowley Road, Oxford OX4 1JK, UK
and 350 Main Street, Malden, MA 02148, USA
* The author is a PHd candidate at the European University Institute, Florence. I am very grateful to
Professor Grainne de Burca for her comments in an early version of this article. The responsibility for the
errors remains mine alone.
See `Co-operation agreement between the European Community and the Lao People's Democratic
Republic', [1997], OJL 334/15 of 5.12.1997.
to suspend the agreement in line with the relevant provisions of the Vienna Conven-
tion of the Law of the Treaties (VCLT).
The so-called `non-execution' clause reads as
If either Party considers that the other Party has failed to ful®l an obligation under this Agreement, it
may take the appropriate measures. Before so doing, except in cases of special urgency, it shall supply
the Joint Committee with all relevant information required for a through examination of the situation
with a view to seeking a solution between the Parties. In the selection of measures, priority must be given
to those which least disturb the agreement . These measures shall be noti®ed immediately to the Joint
Committee if the other Party so requests
Often a joint interpretative declaration is added at the end of the agreement. It
provides that `cases of special urgency' means `cases of material breach of the
agreement by one of the parties', and that a material breach consists of a violation
of the essential elements of the agreement.
The human rights clause was ®rst included in the 1989 Lome
ÂIV agreement and
was followed by the cooperation agreement with Argentina.
A 1991 Commission
Communication armed that it was necessary to pro®t from the political
momentum to integrate human rights into development cooperation.
The 1991
Luxembourg Council welcomed the content of the Commission's Communication,
and recalled that the Community was pursuing a policy of including human
rights clauses in agreements with third developing countries.
This statement was
striking because, at that time, there was no mandate to include the clauses. The
authentic mandate came few month latter, through a resolution `on human rights,
development and democracy' enacted by the Council of Ministers (now the
landmark resolution).
This resolution shaped the basis of the EC philosophy.
European Law Journal Volume 7
42 #Blackwell Publishers Ltd. 2001
Article 60(1) and (3) of the Vienna Convention of the Law of the Treaties provide that a
`material breach' of a bilateral treaty by one of the parties allows the other party to invoke the
breach as a ground for terminating the treaty or suspending its operation in whole or in part. A
`material breach' is de®ned as a repudiation of the treaty contrary to the terms of repudiation
laid down in the Convention, or the violation of a provision `essential to the accomplishment of
the object or purpose of the Treaty'. Article 65 states that in terminating or suspending an
agreement pursuant to Article 60 no more than a three-month period will be given excepting in
cases of special urgency.
See Article 19 of the agreement.
See Article 5 of the IV Lome
ÂConvention, signed on 1 December 1989. See also Article 1 of the
`Framework agreement for trade and economic cooperation between the European Economic
Community and the Argentina Republic' OJL 295/68.
See Communication de la Commission au Conseil et au Parlament Europe
Âen, `droits de l'homme,
Âmocratie et politique de cooperation au de
Âveloppement' SEC (91) 61 ®nal. The political momentum
referred of course to the upheavals in Central and Eastern Europe and the perspectives of democratisa-
tion of a large part of the Latin American continent and the African continent. In this communication the
Commission stated that the priority now was to help to consolidate democracy in the world. It was not its
aim to impose a European model of democracy but rather to oer to third countries the European
experience on the matter.
See `Declaration on Human Rights' from the European Council meeting in Luxembourg, in Bulletin EC
6-1991, p. 17. On the basis of the Commission Communication, the European Council stated `through
their policy of co-operation and by including clauses on human rights in economic and cooperation
agreements with third countries, the Community and its Member States, actively promote human rights
and the participation, without discrimination, of all individuals or groups in the life of the society,
bearing in mind particularly the role of women'.
See Council of the European Communities, press release, 1538
Council meeting on development
co-operation, Brussels, 28 December 1991.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT