Human Rights Clauses in EU Agreements

The inclusion of human rights clauses in EU international agreements has long been a traditional feature of human rights protection in EU external relations. In current practice, EU agreements containing human rights clauses follow a standard model. First, there is a reference in the preamble of the agreement to the ‘strong attachment’ of the contracting parties to non-trade values, such as democratic principles, human rights and the rule of law. Second, in the first part of the agreement there is a provision that defines the respect for human rights and other non-trade values as ‘essential element’ of the agreement. Third, a non-execution clause is included in the final part of most EU agreements, which stipulates how the EU is supposed react if an essential element of the agreement is violated. It is often observed that the violations of the values mentioned in the essential element clause have only triggered the application of the clause in a limited number of cases, all involving very serious violations of democratic principles and human rights. This infrequent application might thus call into question the real impact of the clause on the human rights situations of EU partner countries. However, the usefulness of the clause as a tool for the protection of human rights in EU external relations cannot be judged with exclusive reference to its enforcement record. On the one hand, the essential element clause and the non-execution clause establish a ‘self-contained regime’ allowing for the adoption of ‘appropriate measures’ to compel compliance. On the other hand, the essential element clause should also be evaluated per se, that is as an autonomous rule which can play a constructive role as a basis for political dialogue and for the adoption of positive measures. This paper examines the added value of the clause following this interpretative approach and contributes to the discussion of some problematic issues related to the clauses and to their enforcement.