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EU Political Conditionality as a Tool for the Promotion and Protection of Non-trade Values in Non-EU Countries

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Abstract

Conditionality has different meanings in different situations. Conditionality is applied in different policy areas such as lending or investment programmes, trade agreements and development cooperation aid. In international economic relations, for example, it indicates a performance-based aid allocation by international organizations such as the World Bank or the International Monetary Fund (IMF). In this financial and economic context, conditionality requires governments seeking aid to agree to economic policy adjustments defined by the donors. Conditionality can also refer to the process of tying aid to a specific use or it can describe projects and programmes aimed at supporting democracy or human rights protection

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Trade and the environment. Trade and workers’ rights. Trade and competition policy. Trade and eighteen million tiny feet. It begins to resemble a question from an IQ test: which of the preceding pairs of issues does not fit? Increasingly, it seems there is no pairing with trade for which some argument cannot be made. The “trade and …” industry is booming.
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The scope of human rights is undergoing a paradigm shift, from a territory-based conception to a functional conception, which tends to protect human rights against the extraterritorial exercise of public authority. In the EU domestic system, this is upheld by Articles 3(5) and 21 TUE, which establish the promotion and protection of human rights as a foreign policy directive. However, the normative effect of these provisions is limited. Due to restraints deriving from the EU Treaties, these two provisions do not seem capable of providing a sufficient legal basis for EU action aimed at promoting and protecting human rights. To endow the Union with the means of action necessary to discharge the engaging function of global protector of human rights, a further development of the European constitutional framework seems to be indispensable.
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Among the purposes of the EU’s GSP+ programme is to link human rights to trade incentives, with the idea of using such incentives to promote developing countries’ adoption of the values found in core human rights treaties. With the re-renewal of the GSP (and GSP+) programmes to take effect in January 2014, it is fruitful to examine their efficacy and consistency with WTO law. In this article, I argue the GSP+ programme is not only ineffective in obtaining an improvement in human rights conditions for the vast majority of the world’s population, but it is also incompatible with WTO law. A stick-based regime where human rights abuses are linked to trade sanctions is a better way to proceed. After outlining the GSP+ system, and its linkage of human rights and trade, I analyse its efficacy and WTO consistency. Having shown that it is ineffective and contrary to WTO law, I argue that trade sanctions based on a PPM distinction and/or GATT XX(a) may be the appropriate means of linking trade and human rights. The article ends with some concluding remarks on the need for the careful design of such a system.