Uncertain fate of trade deals in human rights limelight

Federica Mogherini and Sallahedine Mezouar [European Council]

A new legal world is emerging around the EU’s trade policy. Scrutiny over the compatibility of trade agreements with human rights is increasing under recent Ombudsman and Court of Justice moves regarding the new trade agreement with Vietnam, and a 2012 agriculture agreement with Morocco.

In early March, European foreign policy chief Federica Mogherini flew to Morocco for damage control in a diplomatic relationship that has been shaken by a December 2015 ruling by the Court of Justice of the EU partly annulling a 2012 trade agreement between Brussels and Rabat.

In late February, Morocco suspended all formal relationships with EU institutions in response to the Court’s decision.

Late February, the EU Ombudswoman closed a case brought by the human rights organisation FIDH on the EU-Vietnam FTA that is awaiting ratification with a verdict of ‘maladministration’.

Emily O’Reilly criticised the Commission for refusing to undertake an ex-ante human rights impact assessment of the FTA. The issue was subsequently discussed in the human rights committee DROI in Parliament early March. The committee is expected to push for the inclusion of a human rights impact assessment of the EU Vietnam agreement regardless of the fact that the deal was formally concluded in December 2015.

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The FIDH itself believes that the EU-Vietnam FTA’s text must be changed to include legally binding and enforceable provisions on human rights. “For us there is an issue of legality,” Gaëlle Du Sépulchre, Brussels representative for the FIDH, told Borderlex.

The EU-Morocco agreement significantly liberalised trade in agriculture and fisheries products, under the form of an exchange of letters annexed to a 2000 Association Agreement. The CJEU ruling came after a complaint filed by the Frente Polisario, which is fighting to end Morocco’s forty plus year occupation of the former Spanish colony of Western Sahara, and whom it accuses of blocking a self-determination referendum under UN auspices.

The CJEU made its decision on the grounds that the EU had not undertaken an ex-ante assessment on the potential negative human right effects of the agreement on the population of the territory which Morocco considers its own – but whose occupation is resisted by the Polisario Front, and is not recognised internationally.

The Court deemed the case admissible, although it concerns an international agreement. Formally, the Court has no jurisdiction over EU international agreements. But the Court caught the EU by another angle. The Court’s grounds for admissibility were that the agreement was followed by a Council decision – i.e. by domestic EU lawmaking – something that is almost always the case after a trade agreement is put into force in the EU.

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The Council, led by countries like France, and supported by the European Commission, lodged an appeal against the verdict. Morocco is seen as a key strategic partner and a haven of stability worthy of EU support in a volatile African region: no member state is keen on jeopardising the relationship.

An appeals procedure at the Court takes at a minimum of nine months. In the meantime, the agreement remains in limbo.

After her meeting with Moroccan Foreign Minister Salaheddine Mezouar, Mogherini told journalists: “The agriculture agreement remains in force”. In fact the legal status is not so clear-cut as the domestic Council decisionthat was annulled. For Morocco, the court’s decision is perceived as a political judgment.

“It is not a simply judicial affair, it is an eminently strategic matter, a fundamental element for the continuation of [our] partnership,” Mezouar said.

The fate of the EU-Vietnam agreement remains open. Leaders in the trade committee of the European Parliament generally support the conclusion of the FTA as it is, given that it includes a long chapter on labour and environment and is tied into a broader Partnership and Cooperation agreement that includes human rights clauses.

The fact that the EU managed to retroactively substantially alter the EU-Canada trade agreement (CETA) in February 2016 to include an investment court could embolden pressure groups.

The FIDH’s du Sépulchre said that CETA shows that changes to an agreed text are “feasible”.

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