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Bordelex | 14 March 2016
Human rights issues increase uncertainty for Morocco, Vietnam trade deals
An EU trade agreement with Morocco was thrown into disarray after a Court of Justice of the EU ruling on its human rights consequences for Western Saharan people. The recently concluded trade deal with Vietnam could also see rough times ahead after the EU Parliament picked up on the EU’s Ombudsman’s criticism of the lack of impact assessment on human rights.
A new legal world is emerging around the EU’s trade policy. Scrutiny over human rights compatibility of trade agreements is increasing under recent EU Ombudsman and Court of Justice moves regarding the recently concluded EU trade agreement with Vietnam and a 2012 agriculture trade agreement with Morocco.
Vietnam and Morocco trade deals in human rights limelight
Early March the EU’s 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. 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, in charge of the EU’s Ombudsman office, 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.
The FIDH itself considers 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, the independence movement that contests Morocco’s more than forty 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 took its decision on the grounds that the EU had not undertaken an ex ante assessment on merits of the potential negative human right effects of the agreement on the population of the territory which Morocco considers its own – but whose occupation is contested 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.
The Council, led by countries like France, and supported by the EU 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.
Uncertain fate of deals
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 Moroccoan Foreign Minister Salaheddine Mezouar, Ms Mogherini told journalists: “The agriculture agreement remains in force”. In fact the legal status is not so clear-cut as it is the domestic Council decision that makes the deal operational that 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 EU 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 told that CETA shows that changes to an agreed text are “feasible”.