Presentation on the 12 Jun 2014 during the conference on "Market - - PDF document

1 Presentation on the 12 Jun 2014 during the conference on "Market Power Europe"

• Dr. Katia ROCHEREUIL

Today, the European Union (EU) is part of the small group of first commercial powers in the world, just after the United States but before China1. The distance covered from the European Coal and Steel Community established in 1952, within which trade was limited to coal and steel, to the European Community created in 1957, is important. It is a fact that market integration has been one of the factors allowing the European Union to take off. As Dr. Chad DAMRO underlined, "the common market and the common commercial policy served as original and essential building blocks of European integration" 2 . However, regarding the "Market Power Europe" theory developed by Dr. DAMRO, two others factors have contributed to the current commercial status of the European Union: institutional feature and interest

• contestation3. Among tools which have fostered the "Market Power Europe", there

are, as underlined by Dr Chad DAMRO, bilateral agreements, which constitute a "positive tool" and the conditionality clause, "an additional tool". Bilateral agreements are considered as being a positive tool as far as they are the free expression of the two contracting parties to respect the agreement within which they have defined their respective rights and obligations in order to reach the aim defined by the parties. The conditionality clause is qualified by a generic term "additional tool" because it covers different meanings. Indeed, conditionality can be either positive or negative and can apply to the political field as well as the economic field. Positive conditionality can be loosely defined as promising the benefits to a state if it fulfils the conditions whereas negative conditionality involves reducing, suspending or terminating those benefits if the state in question violates the conditions. Political conditionality entails the linking of perceived benefits to another state such as aid, trade concessions or cooperation agreements to the fulfilment of conditions relating to the protection of human rights and the

1 http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=ext_lt_introle&lang=fr 2 Chad DAMRO, "Market Power Europe", JEPP, 2012. 3 Ibid.

2 advancement of democratic principles4. Within the political conditionality clause, an economic conditionality has been added. It links obtaining benefits to the fulfilment

• f economic conditions usually involving the introduction of a market economy. The

EU’s conditionality policy is the object of much controversy and criticism, particularly regarding the consistency and effectiveness of the political clauses. However, I will introduce a nuance in the terms being used. Indeed, I consider the term "vector" to better reflect the impact of those "tools"! Which is the externalisation of European norms. Hence, we will see how bilateral agreements form a positive vector of externalization of Market Power Europe theory (I) and how political conditionality clause is an additional vector of that externalization (II).

4 Political conditionality clause is usually drafted as follows:

"Relations between the Parties, as well as all the provisions of the Agreement itself, shall be based on respect for human rights and democratic principles which guide their domestic and international policies and constitute an essential element of the Agreement".

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• I. Bilateral agreements as a positive vector of externalization of

Market Power Europe theory

The Market Power Europe theory is based on 3 axioms: market integration, institutional feature and interest contestations. Thanks to bilateral agreements, those are "transposed" into conventional relations established between the European Union and third countries. Today, the European Union is linked by about 60 bilateral agreements making market integration the core of the agreement. The degree of integration varies in relation to the legal basis. Those agreements are either based on Article 207 of the Treaty on the Functioning of the European Union (TFEU), also called "trade agreements"5 and, since Maastricht Treaty, on Article 211 TFUE relating to development cooperation 6 or on Article 217 TFUE usually called "association agreements"7.

5 Article 207 TFEU (ex. Article 133 TEC) lays down:

"1. The common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union's external action. [...]". For further developpements, see: Pierre Didier, Michael Hahn, Hervé Prince... [et al.], Politique commerciale commune, Bruxelles: Ed. de l'Université de Bruxelles, 2014, 255 p.

6 Article 211 TFEU (ex. Article 181 TEC) lays down:

"Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations". For further developpements, see: Catherine Flaesch-Mougin, "Le traité de Maastricht et les compétences externes de la Communauté européenne: à la recherche d'une politique externe de l'Union", Cahier de droit européen, 1993, pp. 351-398; Christian Mestre, "Titre XVII - Coopération au développement", in Vlad Constantinesco, Robert Kovar, Denys Simon, Traité sur l'Union européenne- Commentaire article par article, Paris: Economica, 1995, pp.489-504.

7 The legal basis for concluding association agreements under EU law is Article 217 of the

Treaty on the Functioning of the European Union (TFEU). It states that: "The Union may conclude with one or more third countries or international organisations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure". The concept of association was written by the fathers of the Rome treaty in wide words leaving like this to the European Union a "freedom of association"! While the Treaty provision on the association agreement is unclear, it is nevertheless stipulated that the association agreement create: 1) reciprocal rights and obligations for the contracting party; 2) common action, and special procedure Furthermore, the Court in its Demirel judgment of 30 September 1987 (Case 12/86, EC reports 1987, p. 03719) came to explicit guidelines on the scope of an association in EU

4 Starting from the first commercial agreements, market integration was considered the main means for facilitating free movement of goods. According to the economic situation of the third countries, market integration rested either on a product or on a sector. In the seventies, the European Community concluded commercial agreements with developing countries like Pakistan, Bangladesh or India8 on specific products such as jute or coco, which represented an important part of their exportations. Whereas for Latin American Countries 9 , those agreements made agriculture a part of the market integration. Indeed, agriculture represented an important part of their economy. Succeeding generations of commercial agreements have covered different sectors and issues and specify a timetable for individual product tariff reductions in order to foster free movement of goods and services. The most recent trade agreements include non-tariff matters ranging from intellectual property to public procurement such as the latest one, belonging to the fourth generation known as the New Generation Free Trade Agreement, signed on 6 October 2010 with South Korea10. This wish to make market integration the core of the agreement to encourage the development of the third country was reinforced by the new legal basis introduced with the Maastricht Treaty, Article 130 Y (article 211 TFEU) concerning development cooperation11. Such agreements have aimed to favour trade exchange

external relations. The Court stated that an association agreement implies “creating special privileged links with a non-member country which must, at least to a certain extent, take part in the [Union] system”. Therefore, we may distinguish several elements which are inherent to association agreements under EU law: 1) reciprocal rights and obligations; 2) common action and special procedure; 3) privileged links between the EU and a third country; 4) the participation of a third country in the EU system. For further developpements, see: Marie-France Christophe-Tchakaloff, Le concept d'association dans les accords passés par la Communauté: essai de clarification: actes du colloque / organisé par le Centre de droit européen et comparé de la faculté de droit, Université René Descartes Paris V, Paris, 15 mai 1998, Bruxelles: Bruylant, 1999, 332 p.; Jean Raux, "Les compétences expresses de caractère général. Les associations", Juris- classeur Europe, 2002, pp. 1-48.

8 The European Community concluded agreements on trade in jute products with Pakistan

(OJ, n° L 170, 03.08.1970); India (OJ, n° L 82, 27.03.1974) and Bangladesh (OJ, n° L 304, 31.12.1972). Such agreements were also concluded with India on trade in coir products (OJ, n° L 82, 27.03.1974). Those agreements are no more in force.

9 Such agreements were concluded by the European Community with Argentina (OJ, n° L

249, 10.11.1971); Uruguay (OJ, n° L 333, 4.12.1973) and Mexico (OJ, n° L 247, 23.09.1975).

10 Free trade Agreement between the European Union and its Member States and the

Republic of Korea, OJ, n° L 127, 14.05.2011.

11 The introduction of this "new" politics in the Maastricht Treaty materialised the wish of

the European Community to engage towards developing countries while all regards were

5 thanks to an economic and politic cooperation. They are qualified as "non- preferential", which means that they apply the most-favoured nation (MFN) treatment: if one of the parties of the agreement grants a favour to another such as a lower customs duty rate for one of their product then, it has to do the same for all

• ther Word Trade Organization members. Such agreements were concluded with

developing countries located in Latin America12 as well as in Asia13. Commercial agreements and development cooperation agreements make market integration the means for facilitating free movement of goods, services and, since the Lisbon Treaty, investments. However, the European Union can go further in concluding association agreements with far-reaching integration objectives. Over the past two decades, the European Union has concluded several association agreements with far-reaching integration objectives, which either lead or might lead to eventual EU Membership such as association agreements concluded with Central and East European countries 14 or those established with Western Balkan countries15. The aim of association agreements is to establish economic and political cooperation. For example, those agreements allow the access of nationals from third countries to the EU internal market and provide financial assistance for certain political and legal reforms. In return, the third countries accept to harmonise their national legislation with that of the European Union. However, most of the EU association agreements do not lead to EU Membership. Instead, the

even more turned towards East countries and where North-South relations were almost forgotten. See: Catherine Flaesch-Mougin, "Le traité de Maastricht et les compétences externes de la Communauté européenne: à la recherche d'une politique externe de l'Union", Cahier de droit européen, 1993, pp. 351-398, spec. pp. 360-367.

12 The European Community concluded agreement for trade and economic cooperation with

the Argentine Republic, (OJ, n° L 295, 26.10.1990); the United Mexican States (OJ, n° L 340, 11.12.1991) and with the Federative Republic of Brazil (OJ, n° L 262, 1.11.1995).

13 The European Union concluded Cooperation agreement with East Asian Countries such

as India (OJ, n° L 223, 27.8.1994) and Sri Lanka (OJ, n° L 85, 19.04.1995) but also with South Asian Countries namely with Nepal (OJ, n° L 137, 8.6.1996); Vietnam (OJ, n° L 136, 07.06.1996); the Lao People's Democratic Republic (OJ, n° L 334, 05.12.1997); the Republic

• f Yemen (OJ, n° L 72, 11.03.1998) and the Kingdom of Cambodia (OJ, n° L 269,

19.10.1999).

14 The so-called "European Agreements" were concluded with Poland (OJ, n° L 348,

31.12.1993); Hungary (OJ, n° L 347, 31.12.1993); Czech Republic (OJ, n° L 360, 31.12.1994); Bulgaria (OJ, n° L 358, 31.12.1994), Rumania (OJ, n° L 357, 31.12.1994), Slovakia (OJ, n° L 359, 31.12.1994); Estonia (OJ, n° L 68, 09.03.1998), Latvia (OJ, n° L 26, 2.02.1998), Lithuania (OJ, n° L 51, 20.02.1998); Slovenia (OJ, n° L 51, 26.06.1999).

15 The so-called "Stabilisation and Association Agreements" have been concluded between the

European Union and the former Yugoslav Republic of Macedonia (OJ, n° L 84, 20.3.2004); Croatia (OJ, n° L 26 of 28.1.2005); Albania (OJ, n° L 107 of 28.4.2009) and Montenegro (OJ, n° L 108, 29.4.2010).

6 association agreements can be focused on sectorial cooperation such as the seven bilateral agreements concluded between the European Union and the Swiss Confederation on the free movement of persons, on Air transport, on Trade in agricultural products and so on16. They can also put in place political and economic cooperation leading to the establishment of free-trade areas between the parties such as Euro-Mediterranean agreements concluded with Tunisia, Morocco and

• thers17.

Thus, those bilateral agreements use market integration as a way to externalise the economy, and even the social market, while relying on policies and regulatory measures. However, externalisation is also carried out through the institutional feature, which indeed varies according to the degree of integration of the agreement. In the case of trade agreements, there is only a joint Committee without any binding power. It can only take recommendations. Thus, decision can only be reached by consensus between parties. In the case of development cooperation agreements and association agreements, the institutional features are close to those at the European scale. The institutional features of those bilateral agreements can be compared to a pyramidal institutional feature. At the top of the pyramid, we have the Association Council, within which bilateral meeting at ministerial level between parties are organised. The aim of this institution is to discuss all matters of approximation towards the European Union. To reach this aim, the Association Council can take decisions and make

• recommendations. Hence, the Association Council comes within the scope of

Council of Ministers. In the perspective of the role devoted to the European Commission, the Association Committee meets at senior official level. It manages the agreement in fields delegated by the Association Council. The Association Committee shall draw up its decisions by reaching an agreement between the

16 The European Union has concluded with the Swiss Confederation seven agreement on the

sectors free movement of persons, air and land transport, public procurement, scientific and technological cooperation, mutual recognition in relation to conformity assessment, and trade in agricultural products, OJ, n° L 114, 30.04.2002.

17 Euro-Mediterranean agreements have been concluded with Tunisia (OJ, n° L 97,

30.3.1998), Morocco (OJ, n° L 070, 18.3.2000), Israel (OJ, n° L 147 of 21.6.2000), Jordan (OJ, n° L 129, 15.5.2002), Egypt (OJ, n° L 304, 30.9.2004), Algeria (OJ, n° L 265, 10.10.2005), Lebanon (OJ, n° L 143, 30.5.2006).

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• Parties. These decisions shall be binding on the Parties, which shall take the

measures necessary to implement the decisions taken. Both institutions are assisted by various technical sub-committees, which form the base of the pyramid. Their aim is to monitor the implementation of the partnership priorities and the approximation of legislation. They do not have any decision-making power but may submit proposals to the Association Committee and thus, try to create a consensus in order to reach the implementation of a measure. Some association agreements also establish a joint Parliamentary Committees which link members of the national parliaments of the associated countries with members of the European Parliament. Regarding the institutional feature of those bilateral agreements, a parallel can be established with the European institutional structure especially with the Council of Ministers, the Commission and the Committee of Permanent Representatives (COREPER). The integration does not only rely on the market but also on institutions. Indeed, the more important the degree of market integration is, the more similar the institutional feature is to the European institutional framework and the more interest groups are taken into account. Finally, the place granted to interest groups within bilateral agreements is relative to the level of integration of the agreement18. Until the beginning of 2000's, trade agreements and development cooperation agreements did not include a reference to interest group. The enforcement of the agreement and the dispute settlement in the implementation or interpretation of the agreement were only entrusted to institutions composed of representatives on an intergovernmental level. However, a real change can be noticed with the free trade agreement concluded with South Korean on 6 October 2010 19 . Firstly, on an institutional level, a Trade Committee is established, which may notably "communicate with all interested parties including private sector and civil society

• rganisations"20. Secondly, regarding dispute settlement, a whole chapter is focused

18 This point was not developed during the presentation as it was evoked by Dr FAHEY. 19 Free trade Agreement between the European Union and its Member States and the

Republic of Korea, OJ, n° L 127, 14.05.2011.

20 Article 15. 1 of Free trade Agreement between the European Union and its Member States

and the Republic of Korea, OJ, n° L 127, 14.05.2011.

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• n it and describes all stages of the procedure, although this remains mainly an

intergovernmental process 21. Regarding association agreements, the importance granted to interest group has been growing over the past few years. Limited to joint Parliamentary Committee in the case of agreements having established one, civil society has progressively been taken into account as illustrated in article 11 of the association agreement concluded with Chile in 2002, which lays down: "The Parties will also promote regular meetings

• f

representatives of the Chilean and the European Union’s civil societies, including the academic community, social and economic partners, and non-governmental organisations in

• rder to keep them informed on the implementation of this

Agreement and gather their suggestions for its improvement". Dispute settlement may be a way for the interest group to express its point of view however it can be very difficult. Indeed, dispute settlement can be realised either within the parity body composed of representatives of both sides on a governmental level - the Association Council- or within an ad hoc body composed of two arbitrators representing each party. Although, priority is given to out-of court settlement, few bilateral agreements have established judicial remedies such as the Greece agreement concluded in 1961; the Ankara agreement concluded in 1963, and the European Economic Area-Agreement signed in 199222. Whatever the remedies established by the agreement, they are mainly intergovernmental remedies. Hence, it is not without raising problems especially regarding the place given to private individuals. Indeed, an individual of a contracting party who encounters a difficulty, to export his goods for example, has

21 For more details, see: chapter fourteen entitled "Dispute settlement" of the Free trade

Agreement concluded between the European Union and its Member States and the Republic

• f Korea, OJ, n° L 127, 14.05.2011.

22 For more details, see: Constantinos Lycourgos, L'association avec union douanière: un

mode de relations entre la CEE et des Etats tiers, Paris: P.U.F., 1994, 472 p.; Rusen Ergec and Koen Coppenholle, "Dispute settlement and judicial remedies under the customs union between EC and Turkey", R.A.E., 1996, pp.234-246; Sevón Leif, "The EEA Judicial System and the Suprem Courts of the EFTA States", in Olivier Jacot-Guillarmod (éd.), Accord EEE = EWR-Abkommen EEA Agreement : commentaires et réflexions erste Analysen comments and reflexions, Zürich Bern : Schulthess Polygraphischer Verlag StÄmpfli, 1992,

• pp. 603-615, spec. 606-607.

9 no other resource than to turn to the officials of his own country with the hope that they will bring the case before the parity body of the agreement. The European Union has constructed its relations with third countries regarding its own construction using the market as the integration vector. Indeed, the principal aim of external agreements is to favour trade between parties by elimination of the tariff and non-tariffs barriers. The more thorough the Market integration is, the more the institutional feature is close to that of the European Union and the better interest groups can express themselves, especially when the external agreements are concluded with the aim of becoming a full membership of the European Union. However, a problem arises when the degree of market integration is important but there is no prospect of gaining EU membership, as it is the case for countries belonging to the European Neighborhood Policy. Indeed, as shown in Haukkala's article entitled "The European Union as a Regional Normative Hegemon: The case of European Neighborhood Policy"23, "[t]he EU's demands for reforms in the neighbors without the "big carrot" (enlargement incentive) limit the EU's normative influence in its neighbors"24. It raises the question of whether making Market Integration the core of those external agreements is the best way to foster the partner's country development. Indeed, the European Union constructed itself with regards to liberal theory, wherein the market regulation is the best way for going through growth and encouraging the development of the third country. The nexus between trade and development is widely acknowledged. Nonetheless, it has also revealed its limits especially in the case of African Caribbean Pacific (ACP) countries but also Mediterranean countries. Thus, regarding countries which have no prospect of gaining full membership at some point, but also regarding developing countries, investments, education and social preoccupations should be taken into account even more to encourage growth. Furthermore, the EU should target civil society and interest groups in third countries to engender a bottom-up change in perceptions. Indeed, those are the first to cope with difficulties in the implementation of the

23 Haukkala H., "The European Union as a Regional Normative Hegemon: The case of

European Neighbourhood Policy", in Normative Power Europe. Empirical and theoretical perspectives, London: Palgrave, 2011, pp. 45-64.

24 Assem Dandashly, "European Integration Revisited - From the Founding Fathers to the

Normative Power Europe", European Integration, vol. 34, No. 4, 419-426, June 2012.

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• agreement. Hence, taking their remarks into account could allow a better

implementation of the agreement. Lastly, about institutional feature, it is a shame Parliamentary Committee is not common to all bilateral agreements. Indeed, while since May 1995 the Commission provided for "the inclusion of respect for democratic principles and human rights in agreements between the Community and third countries" 25, it is surprising that the Parliament, considered as being the guardian of human rights, is not introduced in all external agreements. Does it mean that the conditionality clause introduced from the 90's firstly, in association agreements, then extended to most of the external agreements does not have the same impact according to the legal basis?

25 "Communication from the Commission on the inclusion of respect for democratic

principals and human rights in agreements between the Community and third countries", COM (1995) 216 of 23 May 1995.

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• II. Political conditionality clause as an additional vector of

externalization of Market Power Europe theory

Through the inclusion of a political conditionality clause in the trade, development cooperation and association agreements, the EU seeks to promote and transmit globally the values of human rights, democracy, and the rule of law. Indeed, the EU asserts that a democratic structure, in which respect for human rights and the rule of law is fostered, is a facilitating condition for accomplishing development through trade. Therefore, those EU bilateral agreements comprise a political conditionality clause called "essential element" clause relating to human rights and democracy clauses. The EU seeks to confer economic benefits on third countries as a reward for respecting the principles of human rights and democracy. However, the EU’s conditionality policy is the object of much controversy and criticism, in particular regarding consistency (A) and effectiveness (B).

• A. With regard to consistency

The lack of consistency of the political conditionality clause is to do with the redaction and its place within the bilateral agreements (1) as well as its implementation (2).

• 1. The lack of consistency concerning the insertion of the political

conditionality clause

Both the place within the agreement and the reference texts for respecting political conditionality clause differ from an agreement to another. For example, with respect to trade agreements such as that concluded with South Korea in October 2010 and that signed with Colombia and Peru in June 201226, they have not given the same impact to political conditionality. Indeed, in the South Korean free trade agreement, only the preamble refers to the commitment

• f the Parties to the United Nations Charter and to the Universal Declaration of

Human Rights. No clause of the agreement repeats this engagement. So, as the preamble is without legally-binding impact, in case of violation of Human rights by

• ne of the party, no sanction could be taken by the other one. On the other hand,

26 Trade Agreement between the European Union and its Member States, of the one part,

and Colombia and Peru, of the other part, (OJ, n° L 354 of 21.12.2012).

12 trade agreement between the European Union and Colombia and Peru firstly refers in the preamble to the United Nations Charter and to the Universal Declaration of Human Rights, then dedicates its first article to the respect of democratic principles and fundamental human rights, qualified as "an essential element" of the Agreement. Regarding association agreements it is just as blatant. Even when a human rights clause qualified as being "an essential element" clause is in the agreements; they do not refer to the same international Conventions. For example, the association agreements concluded with Western Balkan countries 27 refer in its "essential element clause" to the Universal Declaration of Human Rights, to the Helsinki Final Act and to the Charter of Paris for a New Europe whereas in the Euro-Mediterranean agreements and Cotonou Agreement, the "essential element" clause does not introduce any international Convention. It is only done in the preamble of each agreement. The Euro-Mediterranean agreements only mention the Charter of the United Nations whereas Cotonou agreement refer to it but also to "[...] the Universal Declaration of Human Rights, the conclusions of the 1993 Vienna Conference on Human Rights, the Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Elimination of all forms of Discrimination against Women, the International Convention on the Elimination of all forms of Racial Discrimination, the 1949 Geneva Conventions and the other instruments of international humanitarian law, the 1954 Convention relating to the status of stateless persons, the 1951 Geneva Convention relating to the Status of Refugees and the 1967 New York Protocol relating to the Status of Refugees; [...] the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe, the African Charter on Human and Peoples’ Rights and the American Convention on Human [...]" Thus, whatever the legal basis of bilateral agreements, it does not refer to the same international Conventions. This differentiation concerning the place of the political conditionality clause within the bilateral agreements as to the reference texts within the clause seems to be contrary to the principle of universality

27 The so-called "Stabilisation and Association Agreements" have been concluded between the

European Union and the former Yugoslav Republic of Macedonia (OJ, n° L 84, 20.3.2004); Croatia (OJ, n° L 26 of 28.1.2005); Albania (OJ, n° L 107 of 28.4.2009) and Montenegro (OJ, n° L 108, 29.4.2010).

13 advocated by the European Commission28. Furthermore, such differentiation in the protection of human rights in external agreements is not without raising questions. As Peter Uvin has asked: which human rights and democratic principles have to be considered the most important? Which human rights have to be respected as a matter of priority? What should happen if a country makes improvements in one area but relapses in another? 29 Finally, it is regrettable that the political conditionality clauses refer primarily to the Universal Declaration of Human Rights, a legally non-binding tool. In this way, the EU does not demand anything new of its partners as the clauses usually reaffirm states' commitment to certain principles to which they have already committed themselves. Thus, as underlined by Fabienne Zwagemakers, while the EU does not demand anything new of its partners, "it implicitly positions itself as an ‘arbiter’ (albeit without any real legal authority to do so), potentially questioning the compliance of its partners with their broader international obligations. Understandably, third parties frown upon this attitude, which is generally perceived as condescending"30. This lack of consistency of the political conditionality clause in terms of redaction and place within the bilateral agreements also exists regarding its implementation.

• 2. The lack of consistency in the implementation of the political

conditionality clause

Since the inclusion of conditionality clauses in the EU’s commercial policy became compulsory in 1995, the EU has been stricter in imposing conditionality clauses with developing countries than with affluent countries. This led to accusations that the EU was using double standards, posing as a strong defender

• f human rights in relations with poor countries but backtracking when dealing

with major powers. In addition, conditionality clauses are still not applied consistently to trade agreements in all sectors. Conditionality clauses are absent in agreements on fisheries, steel, and textiles, even though these agreements are negotiated with countries that are known for their poor human rights record. An

28 L'Union européenne et les droits de l'homme dans le monde, Bull. UE, suppl. 3/95, Office

des publications officielles des Communautés européennes: Luxembourg, 1996, p. 11.

29 Peter Uvin, "Do As I Say, Not As I Do: The Limits of Political Conditionality", in Georg

Sorensen, Political Conditionality, London: Cass; Geneva: European Association of Development Research and Training Institutes, 1993, 134 p., p. 70.

30 Fabienne Zwagemakers, "The EU's Conditionality Policy: A New Strategy to Achieve

Compliance", Instituto Affari Internazionali Working Papers, January 2012.

14 example in the trade in steel products is the agreement with Ukraine31. As to textile agreements, the agreement on trade in textile products concluded with Cambodia32 can be referred to. This lack of consistency has led to a credibility deficit of the EU’s conditionality policy. Whatever the aim of the bilateral agreement and its juridical base, the European Union should have a similar political conditionality clause; otherwise it harms its international credibility. The pragmatism of the European Union inherent to its international relations undermine the coherence of its external policy expressed in article 21 § 3 TEU33 and also its credibility on the international scene. In that sense, the EU should insist on consistent application of conditionality, as consistency and coherence are prerequisites for an effective policy. Consistency entails that the EU should include conditionality clauses in all sectorial trade agreements on matters such as fisheries, steel and textiles, including with affluent countries34, and in the connections between EU member states and third countries to convey a clear message about the indivisibility of human rights. This raised the question of whether to rewrite the conditionality clause. In the continuity suggestions made by the European Parliament35, this clause should include the usual triptych - democracy, human rights and state of rights, including minority rights and principle of good governance36. Likewise, parties should only refer to

31 Agreement between the European Community and the Government of Ukraine on trade in

certain steel products, OJ, n° L 178, 06.07.2007.

32 Agreement between the European Community and the Kingdom of Cambodia, on trade in

textile products, OJ, n° L 349, 24.12.2002.

33 The article 21 § 3 TEU lays down that "[t] he 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. The Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect".

34 For more details, see: Lorand Bartels, The Application of Human Rights Conditionality in

the EU's Bilateral Trade Agreements and Other Trade Arrangements with Third Countries, Brussels, European Parliament, November 2008 (Policy Department External Policies Study), http://www.europarl.europa.eu/activities/committees/studies/download.do?language=e n&file=23557.

35 Report on the human rights and democracy clause in European Union agreements, PE

v05-00 A6-0004/2006, 23.01.2006., 27 p., p. 6.

36 The triptych - democracy, rule of law, human rights- are evoked in Article 21 § 2 b).

Concerning the minorities rights, these are implicitly expressed in the Article 21 § 2 a) relating to the safeguards of the European Union's values. These one are developed in

15 international agreements already ratified. In order to make the external policy of the European Union even more credible on the international scene, it is necessary not

• nly to reinforce the consistency of the political conditionality clause but also to

guarantee its effectiveness.

• B. The effectiveness of the political conditionality clause

The conditionality clause constituting one of the legal instruments aiming to the effectiveness of the agreement 37, it is essential that it is guaranteed by a procedure of sanction in the event of a violation. Whatever the legal basis of bilateral agreements, in case of conflicts in the implementation or interpretation of the agreement, priority is given to conciliation. However, a clause complementary to the "essential element" clause was introduced in the 1990's. The clause of suspension or "Baltic clause" made it possible to react with immediate effect in case of a violation of human rights. Trade, commercial and economic cooperation agreements concluded between the European Community with the Republic of Albania, Estonia, Latvia and Lithuania laid down in their respective Article 21 that "[t]he parties reserve the right to suspend this Agreement in whole or in part with immediate effect if a serious violation occurs

• f the essential provisions of the present Agreement"38. Although clearly and briefly

formulated, this clause had a limited impact. Firstly, because of a terminological inaccuracy; this one could be implemented only in the case of "serious violation" of the fundamental provisions. This is not without raising questions on the meaning of "serious violation". Secondly, because of its unilateral nature, only the immediate suspension of the agreement was considered without the establishment of a preliminary consultation. These certainly explain why this clause was not reintroduced in the next agreements. Then, it was replaced by a general clause of non-fulfilment also known as "Bulgarian clause". It was introduced for the first time in association agreements

Article 2 TEU within the minorities' rights are introduced. Finally, concerning the good governance, this one is quoted in the Article 21 § 2 h).

37 The duty of loyalty is a complementary way for guarantying the effectiveness of the

bilateral agreements. For more details, see: Eleftheria Neframi, "The duty of loyalty: rethinking its scope through its application in the field of EU external relations", C.M.L.R., 2010, pp. 323-359.

38 Article 21 of the Trade, commercial and economic cooperation agreement concluded

between the European Community with the Republic of Albania (OJ, n° L 343, 25.11.1992), Estonia, Latvia and Lithuania (OJ, n° L 403, 31.12.1992).

16 concluded with Romania and Bulgaria in 1993, then in the later European agreements and in the partnership and cooperation agreements concluded with Russia, countries of Eastern Europe, the Southern Caucasus and Central Asia. This clause is more moderate in terms of its field of application as to the procedural methods in the event of violation. From a material point of view, the Bulgarian clause can be called in the event of non-observance of the obligation of the agreement in its globality and not mainly in the event of violation of the human rights clause. From a procedural point of view, the Bulgarian clause privileges the recourse to conciliation between parties within the Association Council. However, in case of special urgency, parties are invited to take the appropriate measures which will less disturb the operation of the agreement. Thus, the "Bulgarian clause" aims to seek a satisfactory solution for the both parties and so to preserve the effectiveness of the agreement. That procedure of sanction is a general procedure which aims at sanctioning the violation of a provision of the agreement and not a specific procedure condemning a violation of the "essential element" clause. Even if this can constitute one of the reasons for the sanction; it is difficult to determine a way which could be applied on a purely specific basis. However, the Cotonou Agreement reached with the African, Caribbean and Pacific States in June 200039 has marked an advance in the event of violation of the "essential element" clause. Indeed, Article 96 of the Cotonou Agreement provides the legal basis for the suspension of the Agreement in cases where one of the parties feels that the "essential" and "fundamental elements" of the agreement are not being respected. The use of Article 96 should be preceded by a period of dialogue and it is therefore only to be used if all attempts to resolve differences have

• failed. Indeed, the main content of Article 96 relates to further discussion or

"consultations" as it is laid down. The emphasis is therefore heavily on dialogue and trying to reach an agreement. In the absence of clause of non-fulfilment introduced into the agreement, it is the procedure of sanction established by the European treaties which applies.

39 Partnership agreement between the members of the African, Caribbean and Pacific Group

• f States of the one part, and the European Community and its Member States, of the other

part, signed in Cotonou on 23 June 2000, OJ, n° L 317 du 15.12.2000.

17 Initially, the European Community could adopt economic sanctions40. Then a procedure of sanction was codified with the Maastricht Treaty, which appears now at Article 215 TFEU. The adoption of a restrictive measure is voted by a qualified majority of the Council. However, this adoption is subordinated to a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the Commission. Since the Lisbon Treaty, the European Parliament shall be informed, which constitutes progress as the European Parliament is considered as a defender of human rights. Hence, the adoption of a restrictive decision is subject to the institutional triptych - the High Representative of the Union for Foreign Affairs and Security Policy, the Commission and the European Parliament. Finally, concerning the recipients of the restrictive measure, those are not

• nly towards third countries but can also be against natural or legal persons and

groups or non-State entities. If the European Union wants to go further, it can suspend application of the agreement on the Article 218 § 9 TFEU. Indeed, "[t]he Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt a decision suspending application

• f an agreement [...]". Even the adoption of that decision by a qualified majority is

the rule; the use of unanimity has been enlarged with the Lisbon Treaty. Indeed, this is no longer limited to agreements covering a field for which unanimity is required, or to association agreements, but also refers to agreements with the States which are candidates for accession. The extension of the recourse unanimously for the suspension of an international agreement shows well the political acuteness of such a decision. Indubitably, bilateral agreements and political conditionality clauses constitute a way for the European Union to externalise its norms as well as its

• politics. However, the transposition of its own way of construction does not

necessary suit third countries. As the European Union introduces pragmatism in its external relations, it strikes a blow at "consistency between the different areas of its external action and between these and its other policies" as lays down Article 21 § 3

• TEU. This is somewhat of a vicious circle.

40 Such sanctions were based on old Article 133 EC (new Article 217 TFEU), which conferred

• n the old Community competence to regulate commercial flows on import and export with

third countries.

18 For going further: ALSTON (Ph.), L'Union européenne et les droits de l'homme, Bruxelles: Bruylant, 2001, 983 p. AUVRET- FINCK (J.), "Les procédures de sanction internationale en vigueur dans l'ordre interne de l'Union et la défense des droits de l'homme dans le monde", R.T.D.E., janv.-mars 2003, pp. 1-21. CREMONA (M.), "The EU's Approach to Human Rights Conditionality in Practice", European law review, 2003, p. 916. DIEZ (T.), "Normative power as hegemony", Cooperation and Conflict, 2013, pp. 194- 210. FIERRO (E.), The EU's approach to human rights conditionality in practice, The Hague; New York: M. Nijhoff, 2003, 423 p. MANNERS (I.), "Normative power Europe: a contradiction in terms?", Journal of Common Market Studies, 2002, pp. 235-258. MANNERS (I.), "Normative power Europe reconsidered: beyond the crossroads", Journal of European Public Policy, 2006, pp. 182-199. MANNERS (I.), "Assessing the decennial, reassessing the global: Understanding European Union normative power in global politics", Cooperation and Conflict, 2013,

• pp. 304-329.

RIDEAU (J.), "Projection des droits de l'homme dans les relations extérieures de l'Union Européenne", R.C.A.D.I., 1997, pp. 356-455. RIDEAU (J.), "Les clauses de conditionnalité droits de l'homme dans les accords d'association avec la Communauté européenne", in Marie-France Christophe Tchakaloff (Dir.), Le concept d'association dans les accords passés par la Communauté: essai de clarification : actes du colloque organisé par le Centre de droit européen et comparé de la Faculté de droit, Université René Descartes Paris V, Paris, 15 mai 1998, Bruxelles: Bruylant, 1999, pp. 139-196. Schneider (C.), "Réflexion sur le rôle de la conditionnalité politique dans l’affirmation de l’Union européenne comme acteur global dans le nouvel ordre mondial", http://cejm.upmf-grenoble.fr/index.php?dossier_nav=767, intervention du 8 septembre 2005, Académie d'été 2005, "Quelles perspectives pour l’Union Européenne, acteur international du nouvel ordre mondial ?", pp. 1-5. TUCNY (E.), L'élargissement de l'Union Européenne aux pays d'Europe Centrale et Orientale: la conditionnalité politique, Paris, Montréal: L'Harmattan, 2000, 185 p. WHITMAN RG (ed.), Normative Power Europe: Empirical and Theoretical Perspectives, Basingstoke: Palgrave, 2011, 304 p.