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

• DOI: http://doi.org/10.1111/1468-0386.00118
• Date: 01 March 2001
• Author: Elena Fierro
• Published date: 01 March 2001

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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)

routes.

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,

providing:

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.

1

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.

1

See `Co-operation agreement between the European Community and the Lao People's Democratic

Republic', [1997], OJL 334/15 of 5.12.1997.

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to suspend the agreement in line with the relevant provisions of the Vienna Conven-

tion of the Law of the Treaties (VCLT).

2

The so-called `non-execution' clause reads as

follows:

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

3

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.

4

A 1991 Commission

Communication armed that it was necessary to pro®t from the political

momentum to integrate human rights into development cooperation.

5

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.

6

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).

7

This resolution shaped the basis of the EC philosophy.

European Law Journal Volume 7

42 #Blackwell Publishers Ltd. 2001

2

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.

3

See Article 19 of the agreement.

4

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.

5

See Communication de la Commission au Conseil et au Parlament Europe

Âen, `droits de l'homme,

de

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.

6

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'.

7

See Council of the European Communities, press release, 1538

th

Council meeting on development

co-operation, Brussels, 28 December 1991.