Lorand Bartels

Human Rights Conditionality in the EU's International Agreements

INTRODUCTION PART ONE 1. Evolution of human rights clauses 2. Human rights clauses in practice 3. Human rights clauses in context PART TWO 4. Interpretation of human rights clauses 5. Procedures under human rights clauses 6. Substantive obligations under human rights clauses PART THREE 7. Community competence to include human rights clauses in international agreements 8. Member State obligations to perform international obligations undertaken ultra vires by the Community CONCLUSION

The Appellate Body's GSP decision

CHARNOVITZ: The Appellate Bodys decision in the Tariff Preferences case demonstrates the value of a second-level review of panel decisions. Notwithstanding the composition of the panel – which was as highly qualified, balanced, and diverse as any panel could possibly be – the panel issued a decision that met widespread disapproval. In what is probably a record for third-party support of the plaintiff, eight countries asked the Appellate Body to reverse key points. Happily, the Appellate Body did reverse many of the troubling holdings in the panel report. Unhappily for the world community, the Appellate Body did not have an opportunity to review the panels interpretation of GATT Article XX, which (like many previous panels) has chiseled away at vital exceptions.

The Inclusion of Aviation in the EU ETS: WTO Law Considerations

The aviation industry will be included in the EU’s emissions trading system (ETS) from 1 January 2012. Airlines will have to acquire and ‘surrender’ allowances for the carbon emissions produced by their flights. The scheme is comprehensive: it applies to EU and non-EU airlines (subject to a potential exemption), to passenger and cargo flights, and to flights between EU airports and between EU and non-EU airports. An airline that fails to surrender allowances is fined €100 per allowance and must make up the shortfall the following year. The EU’s scheme has already given rise to legal action in connection with the EU’s international civil aviation obligations. But, due to its impacts on trade in goods and services, the scheme also has implications for the EU’s obligations under the WTO law: specifically, under the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS). In particular, this raises the question of the scope of application of the GATS Annex on Air Transport Services. As this article shows, it is challenging to design a carbon scheme that is both administratively feasible and justifiable under WTO law.

‘Interim agreements’ under Article XXIV GATT

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International Economic Law and Human Rights: Friends, Enemies or Frenemies?

A state’s economic policies, including the protection of intellectual property and foreign investments, and trade liberalisation, can have an impact on the enjoyment of human rights. Some of these policies may also be encouraged by international treaties. But it does not follow that any given economic policy is required by those treaties. Determining whether this is the case requires a close analysis of the treaties at issue. In fact, most treaties typically contain exceptions clauses that permit states to comply with both their economic and their human rights obligations. In sum, while Sarah Joseph is right that, in principle, international economic law could hinder the enjoyment of human rights, it is more difficult to identify cases in which this is mandated. But even if this were the case, the logical solution is not to add human rights obligations to international economic agreements. It would be sufficient to ensure that those agreements contain exceptions that can permit—without mandating—states to comply with, and further, their existing human rights obligations.

Re-Thinking Reciprocity: A New Framework for WTO Disciplines on North-South Regional Trade Agreements

Abstract The Economic Partnership Agreement (EPA) negotiations between the European Union and its African, Caribbean and Pacific (ACP) partners represent the most significant free trade agreement negotiations between developed and developing countries to date, and hold valuable lessons for the ongoing review of WTO rules on development aspects of regional trade agreements. These negotiations, which have proceeded on the basis of existing WTO rules, serve neither trade nor development objectives. The central reason for this is that existing WTO rules – principally Article XXIV GATT – have a ‘tariff bias’ in which only liberalization in goods is taken into account in determining the legality of a regional trade agreement. Based on an analysis of the development and trade issues in the EPA negotiation process, this paper proposes a new view of measuring RTA liberalization in which account is also taken of a broader set of economic interests – including services, aid-for-trade and trade facilitation. This paper also demonstrates that such an understanding of regional trade liberalization does not conflict with the original purpose of Article XXIV, even if there is a need for some reform of this provision to bring it up to date. The paper concludes with a series of legal options that reflect this outcome, ranging from a re-interpretation of existing RTA disciplines to formal reform.

Treaty Conflicts in WTO Law — A Comment on William J. Davey’s Paper ‘The Quest for Consistency’

This contribution concentrates on how to determine when there is a conflict between WTO norms, such that it is necessary to apply the rules of international law on treaty conflict.1