EU Free Trade Agreements and Constitutional Rights

Publication Date: 
24 October 2014
John Wiley & Sons Ltd
Publication Place: 
Publication Language: 
Appearing in: 
European Law Journal

How are constitutional rights protected or undermined in free trade agreements
(FTAs) involving the European Union (EU)? Such rights include the traditional
first-generation civil and political rights; the second-generation social, economic and
cultural rights, as well as third-generation rights that include the environment. Over
the past decade, there has been a clear increase in the number of FTAs entered into
by the EU. In the majority of these agreements, respect for human rights is often
presented as an essential element. From the EU’s perspective, focus has always been
on using these agreements to foster its normative standing. This entailed a promotion
of its core values on human rights and good governance. The critical factor has
always been to use these agreements to check excesses of repressive regimes. But given
that human rights are regarded as indivisible, there is also a strong desire from critics
that greater attention is equally placed on socio-economic rights. This argument is
further stretched in those countries with constitutions that clearly stipulate the pro-
tection of second- and third-generation rights.
There are many reasons why rights have been included in EU FTAs. From the
EU’s perspective, not only are its normative values extended farther afield through
such clauses, but it also signals that commercial policy cannot be conducted in
isolation. Rather it is part of a package of tools in foreign affairs that the Union can
use. From the perspective of partner countries, embracing such rights may actually be
a strategy with which to sell a more burnished image that is attractive to foreign
investors and visitors. What is more, some of these countries also embrace the clauses
mindful of the salience accorded to human rights in their own national constitutions.
The EU is not alone in using such provisions in its FTAs. The United States has also
been keen to integrate human rights and soft political provisions in its trade deals as
well as preferential schemes such as the one sanctioned under the African Growth and
Opportunity Act. The approach used by the EU since the 1990s has been that of
carrots and sticks: providing perks to good performers and forfeiting the same to