It is generally accepted in the case law, and arguably under customary international law, that international human rights conventions protect individuals when the State party performs its conduct outside its territory.1 However, it is much more uncertain whether international human rights law protects individuals abroad from the extraterritorial effects of the domestic policies of States, and a fortiori international organisations (IOs). Since 2014, fruitful debates have contributed to the theoretical framework of the human rights obligations of the European Union (EU) in its external policies.2 The opposing arguments for and against its binding so-called extraterritorial obligations focus on the scope of the human rights obligations of the EU, namely whether they impose a merely negative conduct to respect the human rights of persons affected by the policies of the EU outside its territory or indeed positive obligations to protect and that should be fulfiled.3 The scholarly debate also addresses the enforceability of those human rights obligations by persons affected by the policies of the EU outside its territory. However, as at summer 2018, few authors have focused on specific policies of the EU’s external action such as trade and investment treaties,4 which, because of the wide range of the EU’s partner States, might affect most individuals outside of the EU’s territory.
Moreover, several recent legal developments might now contribute to the debate. The first significant development is the case law of the Court of Justice of the European Union (CJEU) regarding trade in products from Western Sahara, occupied by Morocco. The EU and Morocco successively concluded an association agreement in 1996, a partnership agreement in the fisheries sector (‘Fisheries Agreement’) in 2006 and a liberalisation agreement with respect to agricultural and fisheries products in 2012 (‘Liberalisation Agreement’). The Front Polisario, a national liberation movement representing the Sahrawi people, brought an action before the General Court seeking the annulment of the decision on the Liberalisation Agreement, claiming among other reasons that applying the Liberalisation Agreement to Western Sahara would violate EU law and international law. By the first Polisario judgment, delivered on 10 December 2015, the General Court annulled the decision, finding, first, that the Liberalisation Agreement was applicable ‘to the territory of the Kingdom of Morocco’.5 The General Court held that the Council had failed to fulfil its obligation to examine, before the conclusion of the Liberalisation Agreement, whether there was any evidence of the exploitation of the natural resources of Western Sahara under Moroccan control likely to be to the detriment of its inhabitants and to infringe their fundamental rights. After the Council brought an action before the CJEU seeking the annulment of this judgment, on 21 December 2016 the CJEU concluded that the Liberalisation Agreement does not apply to the territory of Western Sahara and set aside the judgment of the General Court.6 The Court based its conclusion mainly on the rules of international law applicable to relations between the EU and Morocco, as required by the 1969 Vienna Convention on the Law of Treaties. In line with this second Polisario judgment, the CJEU later confirmed in a preliminary ruling that neither the Fisheries Agreement nor the Protocol thereto are applicable to the waters adjacent to the territory of Western Sahara, and consequently the EU acts relating to their conclusion and implementation are valid.7 What this case law shows is the importance of the protection of human rights in the external action of the EU.
Furthermore, beyond the case law of the CJEU, some other control mechanisms, such as the European Ombudsman and the European Data Protection Supervisor, reviewed the EU’s compliance with human rights in its external trade actions. Those control mechanisms addressed non-binding recommendations to the EU institutions as to the protection of human rights against extraterritorial effects of EU policies and might have influenced certain procedures of the CJEU.8
The present paper examines the EU’s human rights obligations in the context of its external trade and investment policies and submits that while the dominant case law and the primary law of the EU impose an enforceable obligation to respect the human rights of persons affected by the Common Commercial Policy, a dynamic view addressing due diligence obligations is recommended by human rights bodies inside and outside the institutional structure of the EU. Under this due diligence standard, the EU is expected to carry out a human rights impact assessment before engaging in any international trade policy to ensure that the envisaged policy measure complies with existing human rights obligations and standards and will have no adverse effects on human rights of individuals outside the EU. The paper answers two particular questions: (1) what are the legal foundations, and (2) is the duty to protect extraterritorially enforceable?
The paper thus focuses on regulation or conduct of the EU at the international level, which is considered as, strictly speaking, extraterritorial conduct or the Union’s external action,9 but it does not examine in details domestic regulation or conduct of the EU that produces detrimental effects from the perspective of human rights outside EU’s order and territory (domestic conduct having extraterritorial effects).
The paper proceeds as follows. Section 2 examines the legal foundations of the EU’s duty to protect extraterritorially, namely, the EU law foundations first (2.1), and the international law foundations second (2.2). Subsection 2.2 will illustrate that sources extraneous to the EU rules stemming from international law confirm the positive obligations of the EU to protect the human rights of individuals outside the EU affected by its trade policy. The same subsection discusses among the international law sources a substantial law obligation, the so-called due diligence standard. Section 3 explains that the same due diligence-focused interpretation might shape the enforcement of the human rights obligations of the EU. The conclusions clarify that the EU’s extraterritorial human rights obligations include procedural duties both as to the negotiation phase of international trade agreement and in respect of their implementation.
2. The legal foundations of the duty to protect extraterritorially
2.1. EU law foundations
Among the primary rules (the founding treaties and their amendments) addressing or giving guidance on the EU’s human rights obligations, the following main sources protect human rights: Articles 3(5), 6 and 21 of the Treaty on the European Union (TEU) and the Charter of Fundamental Rights of the European Union (EUCFR). The EUCFR was attached to the TEU by the Treaty of Lisbon and has the same legal value as the treaties.10
Article 3(5) TEU states the aims of the EU ‘[i]n its relations with the wider world’ to be, namely, the obligations to ‘uphold and promote its values and interests’ and to ‘contribute’ to certain norms such as ‘fair trade, eradication of poverty and the protection of human rights’. Consequently, when the EU adopts an act, ‘it is bound to observe international law in its entirety, including customary international law’11 and its international human rights obligations.12 Article 21(1) TEU is the other important provision concerning the EU’s human rights obligations. It provides that the EU ‘shall be guided by’ similar principles in its external action, including by ‘the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law’. Among the objectives of its external action, Article 21(2)(b) provides that the EU shall ‘consolidate and support democracy, the rule of law, human rights and the principles of international law’. These principles and objectives equally apply to the Common Commercial Policy.13
Furthermore, Article 21(3)(1) TEU provides:
The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union’s external action covered by this Title and by Part Five of the Treaty on the Functioning of the European Union, and of the external aspects of its other policies.14
This last provision is arguably wider than the others because it binds the EU not only in its external action, but also in all ‘the external aspects of its other policies’, including its internal policies having extraterritorial effects.15 Furthermore, respecting the aforementioned principles (‘the universality and indivisibility of human rights’) necessarily implies the duty to respect human rights.16
As the Court recognised in the European Parliament v. Council of the European Union case, compliance [with the principles of the rule of law, human rights and human dignity] is required of all actions of the European Union, including those in the area of the Common Foreign and Security Policy (CFSP), as is clear from the provisions, read together, set out in the first subparagraph of Article 21(1), Article 21(2)(b) and (3) TEU, and Article 23 TEU.17
Even though these treaty provisions use wordings that express positive obligations, such as ‘promote’, ‘contribute’, ‘consolidate and support’, some authors argue that they do not require the EU to act in a particular way to protect or fulfil the human rights of individuals outside the EU.18 Nevertheless, as the recent case law of the CJEU shows (below), it is more plausible to interpret those treaty Articles as imposing positive obligations.
Finally, Article 6(1) TEU provides that ‘[t]he Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union’,19 while Article 6(3) considers fundamental rights ‘as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms [ECHR]’ and ‘as they result from the constitutional traditions common to the Member States’, as ‘general principles of the Union’s law’.20 These provisions bind all EU institutions in all their policies as common provisions and do not contain any territorial limitation. Similarly, the EUCFR defines its scope ratione materiae without defining any scope ratione loci. Its Article 51(1) provides that the provisions of the Charter ‘are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law’, ‘in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties’.21 Unlike several other international human rights treaties, which limit their territorial scope to the ‘jurisdiction’ of the State party, the EUCFR does not have such a provision. Indeed, it implies the general understanding that EU institutions are bound by its provisions while ‘implementing Union law’, whether it takes place within the territory of the Member States or outside the EU.22 From EU instruments, it is clear that whenever EU institutions act outside the territory of the EU, they are bound by the Charter.23 However, it is doubtful whether the Charter requires the EU to respect and protect the fundamental rights of individuals affected by extraterritorial effects of EU policies. Most provisions of the EUCFR do not distinguish between EU citizens and non-citizens, except the right to work and the citizens’ rights enshrined in Title V,24 and some provisions are expressly addressed to non-EU citizens.25
Some CJEU precedents confirm the view that the EUCFR is applicable to protect individuals against extraterritorial effects of EU policies. In the Mugraby case, the Court did not question the applicant’s assumption that damages can be claimed from the EU in respect of injuries that occurred as a result of the failure of the EU to adopt measures against the Republic of Lebanon on the basis of a human rights clause in the Association Agreement between the Community and the Republic of Lebanon.26 In the Petruhhin and Schotthöfer cases, the Court held more explicitly that the Charter is applicable where a Member State intends to extradite an EU national at the request of a third State, and the Member State shall verify that the extradition will not prejudice the rights referred to in Article 19 of the EUCFR.27 In various cases, the Court held that Articles 4 and 19(2) EUCFR require any Member State to assess in removal, expulsion or extradition proceedings whether there exist substantial grounds for believing that the third country national would face a real risk of being subjected to inhuman or degrading treatment if sent back to the country of origin.28 This case law follows also from the absolute nature of the prohibition of inhuman or degrading treatment,29 and the rule of harmonious interpretation with the case law of the European Convention on Human Rights (ECHR) under Article 52(3) EUCFR,30 and, in particular, the rich case law of the European Court of Human Rights applying Article 3 ECHR.31 Similarly, agents of the European Border Guard and Coast Guard ‘shall ensure that no person is disembarked in, forced to enter, conducted to, or otherwise handed over or returned to, the authorities of a country in contravention of the principle of non-refoulement’.32 In all of the above-mentioned cases, the risk assessment prevents human rights violations likely to occur in a third State as a consequence of the internal decision of a Member State.
In the Polisario judgment of December 2015, annulled by the Grand Chamber of the Court of Justice, the General Court held that before any export facilitation agreement, ‘the Council must examine, carefully and impartially, all the relevant facts in order to ensure that the production of goods for export is not conducted to the detriment of the population of the territory concerned, or entails infringements of fundamental rights’.33 On appeal, the Advocate General seemed to accept the obligation of the EU to resort to a prior human rights impact assessment under the said conclusion, but excluded the applicability of the EUCFR to extraterritorial effects.34 His reasoning was inspired from the case law of othe European Court of Human Rights (ECtHR) and the ‘jurisdiction clause’ of the ECHR. He claimed that the Charter does apply extraterritorially ‘where an activity is governed by EU law and carried out under the effective control of the EU and/or its Member States but outside their territory’, but could not apply in the case under consideration to Western Sahara ‘since in this case neither the European Union nor its Member States exercise control over Western Sahara and Western Sahara is not among the territories to which EU law is applicable’.35 He seemed to apply, without any reason, the territorial limitation of the ‘jurisdiction clause’ of the ECHR to the Charter and the spatial type of extraterritorial ‘effective control’ over an area developed in the case law of the ECtHR,36 disregarding the scope of application of the EUCFR as defined exclusively ratione materiae. However, the Court of Justice did not specifically address this point in its judgment and annulled the judgment for other reasons, namely on the basis of the territorial non-applicability of the Liberalisation Agreement to the territory of Western Sahara.37
These few precedents do not establish a coherent case law confirming the application of the EUCHR to protect individuals against extraterritorial effects of EU policies. However, they indicate the possibility of the CJEU continuing to follow such a broad interpretation in the future. As the next subsection (2.2) will show, the international law norms binding the EU provide additional legal basis for the EU’s obligations to protect human rights against extraterritorial effects of its policies.
2.2. International law foundations
Among the international law sources that impose human rights obligations on the EU are customary international law (2.2.1), human rights clauses of bilateral treaties concluded with third States (2.2.2), and multilateral human rights conventions to which the EU is or intends to be party (2.2.3). As a further foundation, the paper examines a substantial obligation, namely the so-called due diligence standard in trade and investment policies (2.2.4), which originates both from customary international law and treaty obligations.
2.2.1. Customary international law
As derived subjects of international law, IOs are automatically bound by the rules of general international law,38 including customary international law. A customary international law norm binds any IO as far as its content is applicable to the functional legal personality of that IO.39
Various customary international law rules40 are binding on the EU41 and apply to EU policies that have extraterritorial effects. The customary rules relevant to this paper are the due diligence standard; the obligation to cooperate to bring a breach of a jus cogens norm to an end; and the obligation not to recognise the situation created by such a breach or to render aid or assistance in maintaining that situation.
First of all, customary international law requires States to comply with the so-called due diligence standard under which ‘no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein’.42 Certain human rights experts interpret this customary norm as requiring the State ‘to respect and protect human rights extraterritorially’,43 while the customary norm does not a priori create in itself a human right of the injured persons.44 An exception can be foreseen when the responsible State owes already the injured State a pre-existing obligation to respect the human rights of its citizens,45 for example under a human rights clause forming part of a bilateral trade treaty concluded between the EU and the third State.
Customary international law also obliges States and international organisations to cooperate internationally to bring to an end the jus cogens violations,46 understood as breaches of peremptory norms.47 In its case law on the review of the lawfulness of EU measures implementing UN Security Council resolutions, the CJEU itself recognised ‘the standard of universal protection of the fundamental rights of the human person covered by jus cogens’.48 Such peremptory norms include, for example, the right to self-determination, the prohibitions against genocide, crimes against humanity, war crimes, slavery, racial discrimination, extra-judicial executions, enforced disappearances, and torture, and other cruel, inhumane or degrading treatment or punishment.49 Thus, the duty to cooperate internationally to bring to an end those violations of peremptory norms requires the active cooperation of the EU, through its external action such as trade or development policies to eliminate for example slavery, torture or trafficking of human beings.50 The duty to cooperate includes the obligation to collaborate in investigating those international crimes and prosecuting the perpetrators. This is a so-called due diligence duty, as explained by the International Court of Justice (ICJ) in the case of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro).51 Indeed, the ICJ recognised the applicability of the same customary norms to IOs when it held in the Wall Advisory Opinion:
The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated regime, taking due account of the present Advisory Opinion.52
Furthermore, no State or international organisation shall recognise as lawful a situation created by a breach of a peremptory norm, nor render aid or assistance in maintaining that situation.53 For the same reason, in order to avoid a trade treaty that could contribute to the maintenance of a serious breach, the Advocate General proposed that ‘before concluding international agreements, the EU institutions must ensure compliance with the very short list of peremptory norms of international law’.54 Indeed, some authors are of the view that an EU trade agreement with respect to products originating from an occupied territory might breach the customary duty of non-recognition of violations of peremptory norms unless the EU ensures that these goods benefit the local population.55
2.2.2. Human rights clauses of bilateral treaties
Bilateral and multilateral conventions concluded by the EU, once they enter into force, impose international obligations on the Union and form an integral part of the EU legal order.56 The EU has concluded many bilateral partnership and trade agreements with third States. Since the 1990s it consistently inserts so-called human rights clauses in its framework agreements, which provide that the Parties respect human rights and are considered as an essential element clause. Most human rights clauses follow a standard formula, such as in the Association Agreement between the EU and Ukraine:
Respect for democratic principles, human rights and fundamental freedoms, as defined in particular in the Helsinki Final Act of 1975 of the Conference on Security and Cooperation in Europe and the Charter of Paris for a New Europe of 1990, and other relevant human rights instruments, among them the UN Universal Declaration of Human Rights and the European Convention on Human Rights and Fundamental Freedoms, and respect for the principle of the rule of law shall form the basis of the domestic and external policies of the Parties and constitute essential elements of this Agreement.57
An important feature of such human rights clauses is that they include reference to basic human rights instruments such as the Universal Declaration of Human Rights, considered as enshrining customary international law, or to human rights conventions to which the third State is already party to or to ‘other relevant human rights instruments’. The latter formula leaves ‘an open-ended possibility for future inclusion of international human rights instruments’,58 especially those conventions that are generally accepted to apply extraterritorially and to extraterritorial effects of domestic State policies such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) (see 2.2.3).
Furthermore, the human rights clauses are usually supported by a non-execution clause, which enables each of the Parties to adopt ‘appropriate measures’ in case of non-fulfilment of the obligations, including the human rights clause.59 A human rights clause prohibits, for example, involvement in human rights violations in other countries; the EU could accordingly take appropriate measures under the Cotonou Agreement against Liberia as a result of that country’s assistance to the Front uni révolutionnaire in Sierra Leone.60 The decision on taking such appropriate measures under the non-execution clause falls within the discretion of the given Party;61 in practice, such decisions have been rarely taken,62 and always as a reaction to violations of the human rights clause by the third State. However, the majority of authors accept that human rights clauses are legally binding,63 and not only on the third State, but also on the EU.64
The essential element clauses are considered as applying to the internal and external policies of the Parties.65 This is clear from the wording of human rights clauses, on the one hand, and from the human rights impact assessment policy of the European Commission, on the other hand. Regarding the wording of the human rights clauses, they generally provide that the respect for the democratic principles and fundamental human rights ‘shall form the basis of’ (or ‘inspire’) ‘the domestic and external policies of the Parties and constitute essential elements of this Agreement’.66 The Commission conducts its human rights impact assessment with a global view of the EU’s policies: it held that when considering the impact of trade policies on human rights issues, the EU’s ‘[i]nternational trade policy should be seen as one component in a jigsaw of policies’ including domestic policies in areas having an impact on the overall relations with the country/ies concerned.67 This is because trade agreements themselves are often unlikely to produce serious impacts on human rights on their own, but it is rather domestic policies that create such impacts.68 Consequently, essential element clauses apply both to external policies and the extraterritorial effects of domestic policies of the EU.69
2.2.3. Multilateral human rights conventions
Multilateral human rights conventions are normally open for signature by States, while it is rare that they allow the signature by IOs. As of June 2018, the EU has ratified only one multilateral human rights convention and recently signed another one.
The EU is formally party to the Convention on the Rights of Persons with Disabilities (CRPD), which is open for signature not only by States but also by regional integration organisations. It signed the Convention in 2007 and ratified it on the 23 December 2010.70 The CRPD itself requires the EU to adopt measures with extraterritorial effects: it provides for the obligation of international cooperation. The inclusion of this obligation in the CRPD was inspired by the general duty of international cooperation in Article 2(1) ICESCR and some rights in other core human rights treaties such as Article 28 Convention on the Rights of the Child (on education) or Article 11 ICESCR (on the right to an adequate standard of living).71 The major model provision, Article 2(1) ICESCR, is a clear obligation of means, as opposed to obligations of result, which require the achievement of a certain outcome, because it provides only on the way in which States parties shall act. Under the provision, each State party undertakes ‘to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means’.72 Among the general obligations, the CRPD reiterates the same duty of international cooperation with regard to economic, social and cultural rights of persons with disabilities.73 Furthermore, Article 32(1) provides more generally:
States Parties recognize the importance of international cooperation and its promotion, in support of national efforts for the realization of the purpose and objectives of the present Convention, and will undertake appropriate and effective measures in this regard, between and among States and, as appropriate, in partnership with relevant international and regional organizations and civil society, in particular organizations of persons with disabilities.74
It is clear that the provision expects a positive obligation from States parties, namely to support, through international cooperation, ‘the realization of the purpose and objectives’ of the CRPD. The same article enumerates some measures as examples implementing international cooperation, such as making development programmes inclusive of and accessible to persons with disabilities, facilitating and supporting capacity-building, facilitating cooperation in research and access to scientific and technical knowledge or ‘[p]roviding, as appropriate, technical and economic assistance’.75 From the first concluding observations formulated by the control body, the Committee on the Rights of Persons with Disabilities (Committee RPD), it is clear that Article 32 is addressed not only to subsidised States benefiting from development aids76 but also to donor countries offering various international cooperation programmes to other countries. The Committee RPD held that the obligation has a clear extraterritorial effect in the sense that the States parties shall formulate their programmes of international cooperation, such as development aid, in a certain manner so that the rights of persons with disabilities in third countries could be promoted.77
As a Party to the CRPD, the EU reiterated several times its commitment to ‘promote the rights of people with disabilities in their external action, including EU enlargement, neighbourhood and development programmes’.78 Indeed, the Committee RPD welcomes as positive aspects the trend ‘to include the rights of persons with disabilities in the financing of its external actions’ and ‘the inclusion of disability in priority areas of the European Union communication on the post-2015 Sustainable Development Goals’.79 However, the Committee noted with concern ‘the lack of a systematic and institutionalized approach to mainstream the rights of persons with disabilities’ in the EU international cooperation policies, ‘the lack of coordination and coherence among European Union institutions’, ‘the lack of disability focal points’ and the fact that EU ‘international development funding is used to create or renovate institutional settings for the placement of persons with disabilities, segregated special education schools and sheltered workshops, contrary to the principles and provisions of the Convention’.80 This confirms that the treaty monitoring body, arguably the international body enabled to provide the most authoritative interpretation of the CRPD, is of the view that Article 32 requires the EU to protect and promote the rights of persons with disabilities in third countries through its policies and programmes. As the Committee’s recommendations clarified, the EU development programmes, in particular, are appropriate policies to implement the duty of international cooperation. It recommended the EU among others to ‘adopt a harmonized policy on disability-inclusive development and establish a systematic approach to mainstream the rights of persons with disabilities’ in all of its international cooperation policies and programmes and to ‘identify and put in place mechanisms to disaggregate data on disability in order to monitor the rights of persons with disabilities in European Union development programmes’.81 It also recommended that the EU ‘interrupt any international development funding that is being used to perpetuate the segregation of persons with disabilities, and re-allocate such funding towards projects and initiatives that aim at compliance with the Convention’.82
Beyond the CRPD, the EU has committed itself to respect and accede to the ECHR,83 although the technical implementation of the accession to the convention has been and will be problematic. In its opinion 2/13 of 2014, the CJEU held that the agreement on the accession of the EU to the ECHR is not compatible with Article 6(2) TEU or with Protocol (No 8).84 The opinion has been much criticised by commentators as an attempt of the Court of Justice to safeguard the distinctiveness of the EU’s autonomy while risking undermining the agenda to adhere to the ECHR.85 The Court of Justice based its conclusion mainly on the assumption that the proposed accession agreement ‘is liable adversely to affect the specific characteristics and the autonomy of EU law’ in a number of its provisions. Among other issues, the Court held problematic that the envisaged agreement failed to respect the specific characteristics of judicial review in the area of CFSP: while certain acts adopted in the context of the CFSP fall outside the ambit of judicial review by the CJEU, under the accession agreement the ECtHR would be empowered to rule on the compatibility with the ECHR of those acts escaping the jurisdiction of the CJEU.86 If accession happens, the ECHR would undoubtedly bind the EU in relation to its external policies and domestic policies that have an extraterritorial effect.87
Less problematic is the recent signature by the EU of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) on 13 June 2017,88 the text of which expressly enables the EU to sign the convention.89 Similar to the CRPD, the Istanbul Convention provides direction on international cooperation and imposes obligations on the States parties in an entire chapter concerning international cooperation, consisting of four articles (on general principles, measures relating to persons at risk, information and data protection). From the point of view of trade and investment policies, it is remarkable that its Article 62(4) provides:
Parties shall endeavour to integrate, where appropriate, the prevention and the fight against violence against women and domestic violence in assistance programmes for development provided for the benefit of third States, including by entering into bilateral and multilateral agreements with third States with a view to facilitating the protection of victims in accordance with Article 18, paragraph 5.90
The aim of the integration of ‘the prevention and the fight against violence against women and domestic violence in assistance programmes for development’ is under Article 18(5) of the Istanbul Convention the provision of consular and other protection and support to nationals and other victims of violence. This means that in their development assistance programmes benefiting third States, States parties shall ‘take account of and duly incorporate issues relating mainly to the prevention of these forms of crimes [of violence against women and domestic violence], including with a view to facilitating the protection of victims’.91 The EU committed itself to give the Istanbul Convention ‘a more effective role in international fora’, ‘through internal and external EU policies’.92 As in relation to the CRPD, it is submitted that once the EU ratifies the Istanbul Convention, it is bound to promote the prevention and the fight against violence against women and domestic violence in third countries through its internal policies and external action, including EU enlargement as well as neighbourhood and development programmes.
In sum, the CRPD obliges the EU to shape in a certain way the extraterritorial effects of its international cooperation policies and programmes, especially its development policy, EU enlargement or neighbourhood policies, so that they support, through international cooperation, ‘the realization of the purpose and objectives’ of the CRPD in third States. Beyond this, the aforementioned customary international law norms and the human rights clauses in trade agreements also oblige the EU to respect human rights in its domestic policies that have extraterritorial effects on persons in third States, but it is less clear whether they also require positive measures to protect and promote the human rights of those individuals, as in the case of the CRPD.
2.2.4. Due diligence standard with respect to trade and investment policies
‘Due diligence’ or ‘vigilance’ is a substantial law obligation that requires that the State take all reasonable efforts within its power to prevent and repress the commission of internationally wrongful acts law by others, that is non-state private actors or other States.93 Considered by the ICJ as a customary norm94 or general principle of law,95 due diligence is understood in the doctrine as a ‘standard’,96 that is a norm that prescribes the limits of legal conduct while allowing ‘a certain margin of attainment within the bounds of reason’, as opposed to a ‘rule’, defined as ‘capable of strictly logical application’.97 Under the due diligence standard in international human rights law, States are obliged to protect human rights against violations by third parties such as corporations. As the Inter-American Court of Human Rights recognised in the often-cited Velásquez Rodríguez v. Honduras case:
An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.98
Other universal and regional human rights bodies followed this standard when they confirmed that States have due diligence obligations to protect individuals from the infringement of their human rights by corporations.99 In trade and investment policies, human rights monitoring bodies and the CJEU have guided three main developments with respect to: (2.2.4.a) the application of the due diligence standard to the external action of States, (2.2.4.b) the extension of those obligations to IOs in general and (2.2.4.c) to the EU, in particular.
Increasingly, UN treaty monitoring bodies interpret treaties in a way that requires States parties to exert due diligence in their trade and investment policies. The Committee on Economic, Social and Cultural Rights (CESCR) is a pioneer in interpreting the States parties’ extraterritorial obligations, on the basis of the territorially unlimited scope of the Covenant and its Article 2(1) on international cooperation. The CESCR interpreted the Covenant as requiring States parties to ‘ensure that the right to health is given due attention in international agreements and, to that end, should consider the development of further legal instruments’, and that the States parties ‘should take steps to ensure that these instruments do not adversely impact upon the right to health’.100 In its General Comments relating to the right to water,101 the right to social security,102 the right to just and favourable conditions of work,103 as well as in its examination of States’ periodic reports, the CESCR has reiterated these positive obligations with regard to extraterritorial effects of the States parties’ policies. In this light, the creation of substantial and foreseeable effects outside the State’s territory establishes the jurisdiction of the State party.
Especially with regard to investment policy, treaty monitoring bodies recommend that States parties exercise due diligence over corporate nationals abroad by all means at their disposal whenever they know or should have known about the risk of a human rights violation. The Human Rights Committee recommended to certain States parties that all business enterprises domiciled in their territory and/or their jurisdiction respect human rights standards in accordance with the Covenant throughout their operations and that they establish investigation and legal redress mechanisms regarding the harmful activities of such business enterprises operating abroad.104
In its general comments, the CESCR often reiterated that States parties shall protect some economic, social and cultural rights by preventing their own citizens and national entities from violating those rights in other countries, even by expressly requiring the home State to establish its extraterritorial jurisdiction.105 The CESCR generally requires the capacity to influence the conduct of the corporate national, recommending that ‘[w]here States parties can take steps to influence third parties (non-State actors) within their jurisdiction to respect the right, through legal or political means, such steps should be taken in accordance with the Charter of the United Nations and applicable international law.’106 In its recent General Comment on State obligations in the Context of Business Activities, it reiterated that ‘States Parties are required to take the necessary steps to prevent human rights violations abroad by corporations domiciled in their territory and/or jurisdiction’.107 Based on this requirement, the Maastricht Principles, a set of guidelines elaborated by human rights experts aiming to clarify the content of extraterritorial State obligations to realise economic, social and cultural rights, also recognised the home State’s duty to regulate the extraterritorial operations of its corporate nationals.108
Other UN treaty bodies similarly recognised the home States’ duty to respect, protect and fulfil human rights in the context of their corporate nationals’ extraterritorial activities and operations.109 The numerous recommendations suggest that States parties are required to prevent the violation of human rights in third countries through regular human rights impact assessments and the States’ influence on third parties such as their trade partners or their corporate nationals. They are encouraged to appropriately regulate the investments and activities of their corporate nationals abroad110 and to adapt their legislative framework (civil, criminal and administrative) to ensure the legal accountability of companies and their subsidiaries operating in or managed from the State party’s territory in relation to abuses of human rights.111 Beyond the mere negative duty to respect, risk assessment and prevention that due diligence requires imply positive obligations to protect.
From the early 2000s, international human rights monitoring bodies, especially UN Charter-based mechanisms, have started to address recommendations to both States and IOs. While admitting that States are clearly the primary addressees of human rights obligations, human rights monitoring bodies began to consider ‘the ways in which States acting collectively through international organizations, including those most closely related to globalization, also hold responsibilities to respect human rights in their fields of activity’.112 With respect to business and human rights, IOs were called on to take concrete steps to implement and facilitate human rights due diligence by small and medium-sized enterprises,113 to promote the implementation of the UN Guiding Principles on business and human rights114 and to ensure that focus on economic growth does not ignore human rights.115
Treaty monitoring bodies, empowered to give authoritative interpretation of the respective human rights treaty while reviewing its enforcement, initially emphasised the obligation of States parties to ensure that their actions as members of IOs take due account of the human rights enshrined in the relevant treaty.116 The Committee on the Rights of the Child expressly recommended, with regard to a Member State in the EU, that the State party engages ‘its responsibility within the European Union to ensure that cotton originated from child labour (produced in Europe or elsewhere) does not enter into the European market, using its leverage to ensure that children’s rights are respected within European trade agreements’.117
Beyond the compliance by the States parties with their treaty obligations as members in IOs, the CESCR recommended that IOs ‘should cooperate more effectively, building on their respective expertise, on the implementation of the right to food at the national level’ and that international financial institutions ‘should pay greater attention to the protection of the right to food’ in their conduct.118 The Committee on the Rights of the Child recently went beyond the membership of the States parties and emphasised that ‘[i]nternational organizations should have standards and procedures to assess the risk of harm to children in conjunction with new projects and to take measures to mitigate risks of such harm’.119 The wording ‘should’ instead of ‘shall’ implies that treaty bodies could only address those conclusions in a recommendatory sense, contributing to the progressive development of the treaty interpretation rather than creating new obligations.
It is noteworthy that States, in accordance with these recommendations, also accept that IOs have such obligations. Recently, the Human Rights Council adopted a resolution on the right to food that invited IOs
to promote such policies and projects that have a positive impact on the right to food, to ensure that partners respect the right to food in the implementation of common projects, to support strategies of Member States aimed at the fulfilment of the right to food and to avoid any actions that could have a negative impact on the realization of the right to food.120
This clarifies that IOs, just like States, are expected to assess the risks of human rights violations by their trade and investment partners in and outside their Member States and take all reasonable efforts to avoid such foreseeable human rights violations. These positive obligations bind the EU121 on the basis of its pre-existing internal and external sources of human rights duties.
Various EU instruments recognise that before concluding any trade or investment agreement, the risk of possible human rights violations should be assessed. The Council and the Commission committed themselves to ‘insert human rights in Impact Assessment, as and when it is carried out for legislative and non-legislative proposals … and trade agreements that have significant economic, social and environmental impacts’.122 As mentioned above (2.1), the General Court held in the Polisario case that before any export facilitation agreement is finalised, a human rights impact assessment must be carried out;123 on appeal, the Advocate General seemed to accept this obligation, and in final judgment the Court of Justice did not specifically address this point.124
Some commentators welcomed the General Court’s conclusion on prior human rights assessment in external trade policy.125 Nevertheless, it was criticised by others on several grounds: (1) the General Court departed from established case law; (2) the autonomy of the Union’s legal order would be compromised by making the legality of Union acts dependent on acts of third States;126 (3) the unlimited formulation; and (4) the unconvincing legal basis of the EU’s obligation. As this part explains, none of these criticisms convincingly weakens the extension of the due diligence standard to the EU.
As regards the first objection, the Court established the Council’s alleged obligation to examine ‘carefully and impartially all the relevant facts of the individual case’ in the Technische Universität München and Gowan cases,127 but not in an external relations context.128 Those cases concerned individual/administrative decisions or administrative procedures entailing complex technical evaluations by EU institutions. In the context of external relations, the Odigitria case laid down the applicable test. In the latter case, the Court held that in the field of the Community’s external economic relations, ‘review by the Community Court must be limited to examining whether the measure in question is vitiated by a manifest error or misuse of powers, or whether the authority in question has manifestly exceeded the limits of its discretion’.129 Nonetheless, the two tests can be reconciled: it is possible to assess a high number of complex factors in the external relations domain to the extent that the EU has the knowledge of foreseeable human rights violations and the means to prevent them.
With respect to the second objection, the prior human rights assessment would not compromise the autonomy of the EU’s legal order because it would focus only on foreseeable risks, that is, it would be an objective evaluation within the power of the EU.
The third objection is against the unlimited formulation of the EU’s obligation. While the General Court implied that the foreseeable risk of any violation of fundamental rights should exclude the conclusion of an agreement by the EU, the Court of Justice did not rule on this question. Advocate-General Wathelet, however, suggested a more restricted view – namely, to limit the EU’s obligation only to ensure compliance with jus cogens and erga omnes obligations rather than with the full range of fundamental rights.130 This view reflects the customary international law duty to refrain from rendering aid or assistance in maintaining situations created by jus cogens violations, and the duty to cooperate internationally to bring to an end human rights violations of peremptory norms such as slavery, torture or trafficking of human beings in the case law of the ECtHR.131
The fourth criticism concerns the unconvincing legal basis of the judgment. While the General Court based the EU’s obligation of risk assessment on Article 73 UN Charter, the UN Charter imposes obligations on States administering a non-self-governing territory and not on third States or IOs.132 Yet, while the General Court’s judgment failed to explain the source and the limits of the obligation of care/due diligence, customary international law and the human rights treaty obligations of the EU to protect the physical integrity of individuals should be the correct legal basis.133
To summarise this section, the EU has an obligation under its own ‘constitutional law’, customary international law and its human rights treaty obligations to assess and prevent foreseeable human rights violations in third countries as a consequence of its domestic policies. Therefore the EU has to integrate risk assessment in its trade and investment policies; furthermore, whenever it has knowledge of foreseeable human rights violations and the means to prevent them, it has to act proactively. The core of the due diligence standard is the EU’s obligation to ensure compliance with jus cogens and erga omnes obligations, especially to protect the physical integrity of individuals in third States against the harmful effects of its trade and investment policies.
3. The enforcement of the duty to protect extraterritorially
The enforcement of EU law and the enforcement of the EU’s international law obligations are regulated by different rules regarding enforcement and liability. While the institutions of the EU supervise the respect of the EU ‘constitutional law’, especially the CJEU (3.1), treaty monitoring bodies enforce the EU’s international law obligations (3.2).
3.1. The enforcement of the EU’s ‘constitutional law’ obligations
As some scholars argue, individuals affected by extraterritorial effects of EU policies in third countries cannot challenge the measures affecting their human rights and thus enforce the human rights obligations of the EU.134 The reason is the narrow definition of the standing rules of individual applicants before the CJEU under Article 263(1) of the Treaty on the Functioning of the European Union (TFEU). In the Commune de Champagne case, Swiss producers of wine brought action against the Council and the Commission, requesting the CJEU to annul the Agreement between the Community and the Swiss Confederation on Trade in Agricultural Products. Under Article 263(1) TFEU, the CJEU can only review the legality of EU acts ‘intended to produce legal effects vis-à-vis third parties’. Nonetheless, the Court of Justice held that the rule applies only to acts within the territory of the EU for two reasons. First, the Court points out ‘that the principle of sovereign equality enshrined in Article 2(1) of the United Nations Charter means that it is, as a rule, a matter for each State to legislate in its own territory and, accordingly, that generally a State may unilaterally impose binding rules only in its own territory’.135 Second, it held ‘that an act of an institution adopted pursuant to the Treaty, as a unilateral act of the Community, cannot create rights and obligations outside the territory thus defined’ and therefore ‘the scope of the contested decision is limited to that territory and it has no legal effect in the territory of Switzerland’.136 This results in the exclusion of individuals in third countries from having the standing to challenge an EU unilateral act before the CJEU on the basis of violations of their human rights extraterritorially.
The reasoning is contestable because the principle of sovereign equality does not ipso jure exclude States from exercising their jurisdiction in third States.137 In fact, the EU does exercise in various policies its prescriptive jurisdiction over individuals outside the territory of the Member States.138 The Advocate General139 and Court of Justice140 later recognised in other judgments that Member States may exercise their prescriptive jurisdiction with respect to situations in third countries.
However, the recent Polisario case does not change the Commune de Champagne case law.141 Moreover, the Polisario case did not address the issue of standing of individuals, given the fact that the General Court only accepted the direct and individual concern of Front Polisario as the representative of the people of Western Sahara. Another criterion of the ‘direct and individual concern’ is that the contested act affect the given natural or legal persons ‘by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person addressed’.142 The General Court held that this condition was fulfilled in the Polisario case because ‘[t]he Front Polisario is the only other participant in the UN-led negotiations between it and the Kingdom of Morocco with a view to determining the definitive international status of Western Sahara.’143 On appeal, the standing of the Front Polisario was neither addressed in the merits nor contested by the judgment of the Court of Justice.144
Likewise, individuals cannot enforce human rights clauses of bilateral agreements: the CJEU held in the Mugraby case that (1) the suspension of the agreement on account of the human rights clause is discretionary; each party to the agreement is free to decide whether there may be an infringement of the clause; (2) the discretionary power left for the parties means that the human rights clause could be attributed direct effect; and (3) individual applicants cannot establish how they could acquire a right from those expectations.145 It is no wonder that an author considered human rights clauses of bilateral trade agreements as ‘soft political conditions’.146
Notwithstanding the non-enforceability of extraterritorial human rights obligations by the affected individuals in third States, some non-judicial mechanisms might incite EU institutions to change their conduct or bring an action before the CJEU. As is well known, EU institutions and EU Member States are privileged applicants before the CJEU in the sense that they can challenge an EU act or omission even in the absence of direct effect, without the need to prove the fulfilment of the criteria direct effect and individual concern.147
The first possible intervener in any allegation of human rights violations caused by the extraterritorial effects of EU policies is the European Ombudsman. Only citizens of the Union or any natural or legal person residing or having its registered office in a Member State can file complaints with the European Ombudsman concerning instances of maladministration, that is, the breach of the right to good administration under Article 41 EUCFR, in the activities of the Union institutions, bodies, offices or agencies.148 Nevertheless, the right to good administration is not restricted to EU citizens, but ‘[e]very person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.’149 Moreover, nothing prevents the Ombudsman opening an inquiry on their own initiative150 or requires that legal persons be founded in a Member State with the sole purpose to represent individuals outside the EU. The outcome of the mechanism, if an instance of maladministration is found, is the non-binding reference of the matter to the institution, body, office or agency concerned, which shall have a period of three months in which to inform the Ombudsman of its views.151 Although EU bodies are not obliged to follow the recommendations of the European Ombudsman, they usually comply with the conclusions of any inquiry.
The European Ombudsman might enquire into human rights violations as a consequence of extraterritorial effects under the broader notion of ‘maladministration’. The European Ombudsman found, in her decision of 26 February 2016 on the European Commission’s failure to carry out a prior human rights impact assessment of the free trade agreement between the EU and Vietnam, that the Commission’s failure to provide valid reasons to justify its refusal to carry out such an assessment constituted maladministration.152 The Ombudsman derived the duty to carry out a human rights impact assessment before the conclusion of a trade agreement from Articles 21(1) and 21(2) TEU.153 In the Polisario case, the Advocate General cited this decision of the European Ombudsman, suggesting that there is no reason not to require that EU institutions, ‘before the conclusion of an international agreement, … examine the human rights situation in the other party to the agreement and the impact which the conclusion of the agreement at issue could have there in this regard’.154 The European Ombudsman recently confirmed the obligation of prior human rights impact assessment in her inquiry about the EU-Turkey Agreement, where she considered this duty ‘fundamental, since the implementation of the Agreement reasonably and necessarily has an impact (a) on the human rights of migrants (direct or indirect) and (b) on the ability of the EU and the Member States involved to fulfil their human rights obligations’.155
Correspondingly, in a case concerning a business contact concluded between the European External Action Service and a small company located in Tunisia, the Ombudsman derived from the right to good administration the obligation of the EU ‘to monitor the behaviour of its contractors and, naturally, the obligation to verify if, and to insist that, the contractor fulfils its obligations towards subcontractors’ in third States.156 Beyond the fact that the Ombudsman recognised extraterritorial due diligence obligations in business relations, it is remarkable that she opened her inquiry upon the complaint of a Tunisian private company. This shows that individuals from third States affected by EU policies and measures might hope for some remedy by addressing their claim to the European Ombudsman.
Another possible intervener in the protection of human rights against extraterritorial effects of EU policies is the European Data Protection Supervisor (EDPS) who is charged with the protection of personal data by the EU institutions. The EDPS is the independent supervisory authority who ‘shall be responsible for ensuring that the fundamental rights and freedoms of natural persons, and in particular their right to privacy, are respected by the Community institutions and bodies’.157 Consequently, the EDPS’s mandate is not restricted to EU citizens, but protects the ‘personal data’ of any natural person, that is, ‘any information relating to an identified or identifiable natural person’ (‘data subject’).158 Within their mandate, the EDPS may ‘refer the matter to the Community institution or body concerned and, if necessary, to the European Parliament, the Council and the Commission’, ‘refer the matter to the Court of Justice of the European Communities under the conditions provided for in the Treaty’ and ‘intervene in actions brought before the Court of Justice of the European Communities’.159 The EDPS’s opinions on the effects of EU policies on personal data might persuade EU institutions to bring the matter to the CJEU, as happened in the case of the draft agreement between Canada and the EU on the transfer and processing of passenger name record data. After the EDPS opined that the international agreement is likely to lower the level of protection of the fundamental right under Article 8 EUCFR,160 the European Parliament decided to ask for the opinion of the CJEU before adopting the agreement.
In the proceedings of Opinion 1/15, the Court was required for the first time to rule on the compatibility of a draft international agreement with the fundamental rights enshrined in the EUCFR, namely with those relating to respect for private and family life affected by the draft agreement between Canada and the EU on the transfer and processing of passenger name record data.161 While one can argue that through bringing the procedure before the Court of Justice, the European Parliament intended to protect the personal data of EU citizens and not individuals from third States, the draft agreement has a personal scope covering all passengers flying to or from a third country, Canada and the EU.162 In his opinion, the Advocate General required compliance by various due diligence duties, such as requiring that the agreement establish effective remedies by Canada,163 sufficient guarantees for individuals that ‘their data will be afforded effective protection against the risks of abuse and also against any unlawful access to and any unlawful use of that data’,164 the control by an independent authority of the respect for the private life and protection of the personal data of passengers,165 and so on. Several of his recommendations were backed by the EDPS.166 In its opinion, the CJEU confirmed these concerns. It followed the due diligence logic in so far as it required that the transfer of personal data from the EU to a non-member country shall take place ‘only if that country ensures a level of protection of fundamental rights and freedoms that is essentially equivalent to that guaranteed within the European Union’.167 As the Court did not find this requirement satisfied, it concluded that the agreement could not be concluded in its current form because several of its provisions are incompatible with the fundamental rights recognised by the EU.
Finally, even if individuals from third States cannot directly challenge the EU’s trade and investment policies before the CJEU, they might ask domestic courts in Member States to initiate preliminary reference procedures where the question of admissibility will not be an issue. Such a domestic court procedure initiated by the Western Sahara Campaign, an independent voluntary organisation, led to the preliminary reference procedure in which the Court of Justice concluded that the Fisheries Agreement is not applicable to Western Sahara and to its adjacent waters.168 From the point of view of human rights, the preliminary ruling was important as it confirmed that including Western Sahara within the scope of the Association Agreement concluded with Morocco would be contrary to certain rules of general international law, especially the principle of self-determination.169 One must add that, as of April 2018, there is another pending case before the CJEU on Western Sahara: an action for annulment of a Council decision to conclude a Fisheries Protocol with Morocco brought by Front Polisario.170
In sum, although individuals from third States do not have standing to challenge trade and investment policies and measures of the EU before the CJEU, non-judicial mechanisms – the European Ombudsman or the EDPS – might lead EU institutions to change their conduct or enhance their compliance with their human rights obligations toward individuals outside the EU or to bring applications before the Court.
3.2. The enforcement of the EU’s international law obligations
The EU’s treaty obligations are enforced, as in the case of States parties to human rights treaties, by the relevant treaty monitoring bodies. The Committee RPD bases its concluding observations on the report prepared by the EU,171 while the Istanbul Convention’s monitoring body, once the EU ratifies the Convention, will be able to monitor the implementation by the EU in a reporting procedure or in an urgent inquiry procedure.172 While recommendations of those treaty monitoring bodies are non-binding, the international publicity and authority of their conclusions might ensure compliance by the EU. As a sign of its compliance with the CRPD, the EU took measures in conformity with three of the recommendations of the Committee RPD on which the latter requested information within a year,173 and the EU shall provide information on the implementation of the other recommendations in its next periodic report. In relation to the recommendation by the Committee RPD on the EU’s international cooperation policies, the Commission formulated some commitments to ensure that, in its external actions, EU development cooperation reaches persons with disabilities.174 In the next reporting round, the Committee RPD will consider whether the measures taken fully comply with the positive obligations of the EU in its external action.
The EU is bound by human rights obligations toward individuals outside the territory of its Member States who are affected by its trade and investment policies. On the one hand, internal rules of the EU impose such human rights obligations, namely the Founding Treaties and the EUCFR, which all apply to the EU’s internal and external policies. On the other hand, various external norms bind the EU, especially customary international law, human rights clauses of bilateral treaties concluded with third States and international human rights treaties to which the EU is or intends to be party. Based on both customary international law and treaty obligations, the due diligence standard, in particular, binds the EU in its trade and investment policies. UN treaty monitoring bodies increasingly interpret the States parties’ treaty obligations in accordance with the due diligence standard, expecting extraterritorial obligations to protect. Like States parties to human rights conventions, the EU is expected to assess the risks of human rights violations by its trade and investment partners in and outside its Member States and take all reasonable efforts to avoid foreseeable human rights violations. At the very least, the EU has a positive law obligation to ensure compliance with jus cogens and erga omnes obligations, especially to protect the physical integrity of individuals in third States against the harmful effects of its trade and investment policies.
As for the enforcement of the duty to protect extraterritorially, a wide range of control bodies should consistently monitor the EU’s compliance with its obligations. The CJEU and non-judicial control bodies within the EU, such as the European Ombudsman or the EDPS, should ensure the enforcement of the EU’s ‘constitutional law’ obligations to protect extraterritorially. The more they explain the source and the scope of the obligation of due diligence, the more persuasive their impact will be on the conduct of EU institutions. While affected individuals in third States cannot enforce the EU’s extraterritorial human rights obligations before the CJEU, they can initiate the mechanism of the European Ombudsman or the EDPS or ask domestic courts in Member States to initiate preliminary reference procedures before the CJEU. The EU’s international law obligations should be, however, enforced in dialogue between the EU and the concerned treaty monitoring bodies.