Ambiguities in the EU's rights-based approach to liberal order

Abstract

The European Union has been characterized as a vanguard of a rights-based liberal international order. A prime example is making all cooperation agreements with third states conditioned on respect for human rights. But the EU's approach is contested on grounds of inconsistency and power imbalance. This article contributes to a more nuanced understanding of the relationship between authoritative human rights procedures and contestations of the liberal order. In doing so, the article brings to the fore ambiguities that are often glossed over in the literature related to representation in supranational political arrangements. Through a longitudinal case-study of the centrepiece of the EU's external human rights policy, the human rights clause, the article shows that the EU vacillates between supranational and intergovernmental political arrangements. It insists on a human rights clause that allows for sanctioning of non-compliance, but that also maintains core features of intergovernmental decision-making where executives in the EU and partner governments maintain the authority to initiate and settle disputes on human rights. The result is a half-hearted move towards a rights-based liberal order that neither fully respects nation-states' sovereignty nor fully allows for an impartial settlement of human rights disputes.

In the special section that this article is part of, we analyse the European Union (EU) as a vanguard of a rules-based liberal international order (LIO) in times of crisis. The starting point for the article is the observation that the relevance of the EU as a vanguard of the LIO has increased as liberal ideas of universal human rights, democracy and the rule of law have become the backbone of this order.¹ Human rights are defined as the EU's primary foreign policy objective and are central to its international identity.² Respect for human rights is a condition for EU membership and has gradually become a condition in the bloc's external policies, including its cooperation agreements with third countries. Over the years, human rights promotion ‘has shifted from being a concern of external action to the concern of external action’.³ But the EU's promotion of human rights has also been contested. Critics have pointed to the need for looking at what the EU ‘does’ instead of what it ‘is’.⁴ They have argued that the EU is using its power in an imperial fashion⁵ and have identified a pattern of inconsistent human rights promotion in which ‘the relative power of Europe vis-à-vis a country or region, rather than ethical and human rights concerns per se … determines the extent to which the EU emphasizes these clauses’.⁶

While contestation and critique of the EU's human rights policies are well documented, this literature is seldom connected to the debate about the crisis of the LIO and the EU as a promoter of a LIO. Predominant explanations of the crisis of the LIO focus on material and ideational changes to the order, inter alia the rise of new powers which challenge or seek to reform the liberal script.⁷ Another hypothesis posits that the contestation of the LIO is caused by a shift from liberal multilateralism to a more intrusive postnational liberalism.⁸ According to Börzel and Zurn, contestation is caused not only by shifts in power balances and contestation of liberal ideas, but also by the way the LIO has evolved. Namely, from a multilateral interstate structure in which the equal sovereignty of states is respected to an order characterized by the increase of international authority and supranational institutions in which the liberal ideal of universal human rights is placed above the principle of equal sovereignty between states.

This article uses Börzel and Zurn's hypothesis as a starting-point, while also adding theoretical and empirical nuance to why a more supranational LIO spurs contestation. I ask: what characterizes the EU's rights-based approach to the LIO, and is there something about the EU's approach that helps explain its contestation? By asking this question, I emphasize that we need a better understanding of the relationship between promoting human rights and contestations of the LIO. It is common to denote a tension or dilemma between the concerns for sovereignty and human rights. Kornprobst and Paul, for instance, note that human rights are ‘a major diplomatic battleground’⁹ in international institutions. Following from this insight, I argue that we should pay closer attention to the institutional design of human rights commitments. There might be particular traits associated with the EU's promotion of human rights that contribute to explaining its contestation. To investigate these questions, I conduct a case-study of the centrepiece of the EU's human rights promotion in its external action, namely the EU's human rights clause. I analyse the clause as it has materialized in the EU's relations with the Organisation of African, Caribbean and Pacific States (OACPS).¹⁰

The article contributes in two main ways to the literature on the EU's role as a vanguard of the LIO and the potential contribution of the EU to the crisis of the LIO. First, I argue that while the EU has assumed a more pronounced role as a vanguard of a rights-based LIO, there are ambiguities to the EU's approach which leaves room for contestation. The EU advocates for a shift towards supranational human rights commitments, yet its policies fall short of fully developed supranational political arrangements—as called for inter alia by Held¹¹—in which human rights trump state sovereignty. Instead, the EU is facing a split between a supranational ambition and a practice in which human rights disputes are resolved between executives. This creates ambiguities and legitimation problems for the EU. Second, the article contributes by unpacking this legitimation problem. It is common, among scholars, to view the relationship between order and justice as a tension between unreconcilable concepts.¹² Contrary to this assumption, and in line with the assumptions set out in the introduction to this special section,¹³ I assume that conceptions of the liberal world order cannot be disconnected from the claims of justice it rests on.¹⁴ Thus, I rely on insights from political philosophy to anchor the EU's ambition to conduct a rights-based approach in a conception of global political justice emphasizing impartiality. I show that, in addition to the earlier literature's focus on a legitimation problem arising from inconsistent application and power asymmetry, the EU's external human rights policy also manifests a democratic problem.

Conceptualizing a rights-based approach to the LIO

While most scholars agree that the LIO is anchored in human rights principles as they are enshrined in article 1 of the universal declaration of human rights,¹⁵ some scholars have observed a relationship between international institutions' increased authority to monitor and enforce human rights and the contestation of the LIO.¹⁶ This article seeks to contribute with theoretical insights and empirical evidence as to why this is the case. We need a better understanding of why supranational means to promote human rights contribute to contestation of the LIO and whether there are particular traits associated with how the EU goes about when it promotes a rights-based approach to the LIO that contributes to its contestation.

My starting-point is the assumption that the EU is a key proponent of a LIO anchored in the respect for human rights and for strengthening supranational authority to enforce these rights.¹⁷ This is evidenced by the inclusion of human rights clauses in the EU's cooperation agreements with third states, often called human rights conditionality.¹⁸ Such a clause is ‘a legally binding provision in international agreements with a standard form which aims to safeguard and bolster the EU's commitment to human rights in legal relations with third countries’,¹⁹ and its use has been highlighted as a key characteristic of the EU's prioritization of human rights promotion in its external action.²⁰ The observation of international agreements that are conditional on respect for human rights can, at first sight, be interpreted in line with a an approach to liberal order that emphasizes the universality of human rights. Human rights are of equal concern to all subjects, irrespective of which state or community they are born into. To secure human rights for individuals, an order with more robust institutions is needed. Such claims of justice resonate with what many would label cosmopolitanism.²¹ Human rights trump state sovereignty when in conflict. This is because rights are not provided to you by the state, but are something intrinsic to your status as an individual human being. Such theoretical assumptions are what the authors of the articles in this special section conceptualize as justice as impartiality.²² Justice as impartiality assumes that ‘the state does not necessarily represent the institutional arrangement that is best equipped to ensure that people are safe from arbitrary interference’.²³ Due to the transnational character of the challenges that face us today, the state is ill-equipped to realize the human rights of its citizens alone. More robust institutions are needed to realize individuals' rights, inter alia by being given the right to sanction non-compliance. One example that reminds us of this conception is the dispute-settlement mechanism of the World Trade Organization (WTO). It settles trade conflict between states through consultation with a panel of experts that are accepted a priori by the conflicting states. The success and legitimacy of this mechanism has been attributed to the technical character of trade disputes which had little impact on the citizens of the WTO's member states.²⁴

Yet, there are also increasing calls for citizen participation in the WTO's dispute-settlement procedure, due to the impact of trade policies on non-trade interests such as health, the environment and human rights. The impartiality of judges is difficult to sustain when we move from issues of a legal–technical character to issues that affect the rights and well-being of individuals. The logic behind the calls for increased civil society inclusion is that citizens are disorganized and that they lack strong channels for cooperation with national governments which would ensure that their interests and values are sufficiently safeguarded. Thus, critics hold that dispute settlements should be opened to stakeholder representation without them needing to rely on the intermediation of national governments.²⁵ This is especially important for minorities that might struggle to get their views heard. Hence, if we cannot secure impartial political arrangements, there is a need to strengthen democratic procedures. This is what Forst proposes when he calls for a structure of justification. Justice requires not only freedom, understood as non-arbitrary interference, but the autonomy of individuals, understood as being authors of the ‘laws they have to obey’ and co-determining agents who have access to hold those in power to account for their actions.²⁶ A structure of justification implies that individuals have the ‘right to participate in cross-border, normative discourses on an equal footing, and affected parties below the state level simultaneously have the right to demand participation in such discourses if the latter would otherwise ignore or perpetuate specific relations of domination’.²⁷ From this point of view, individuals are active participants and beneficiaries of their rights. Arrangements are needed so that individuals can present viewpoints and contest the arguments of agents that might subject them to domination. In other words, the requirement of democratic representation of citizens must be upheld also in supranational arrangements.

Expectations, method and data

Above, I have outlined an ideal-typical conception of global political justice—justice as impartiality—which I will use as a critical standard for analysing the EU's approach to the LIO. If the EU lives up to this conception, it would illustrate a move towards a supranational understanding of the LIO, in line with what Börzel and Zürn label ‘postnational liberalism’.²⁸ Following from this, it is possible to analyse whether there are particular traits associated with how the EU goes about promoting human rights that can help us explain the crisis of the LIO.

In accordance with the above theoretical discussion, two expectations were devised. A first expectation would be that human rights are made legally binding between the EU and its partners and that collaborative supranational institutions are given the right to sanction non-compliance. A second expectation would be to find impartial or democratic procedures solving disputes concerning human rights breaches. This could be materialized either by using impartial human rights experts or through a democratic supranational mechanism where states and citizens are represented alongside each other.

To investigate these expectations, I conduct a qualitative case-study of the human rights clause in the EU–OACPS partnership. I systematically trace how the human rights clause has been spelled out, interpreted and justified in EU–OACPS relations since its inception and until its recent materialization in the post-Cotonou agreement.²⁹ The method applied is a systematic collection and interpretation of justifications provided by central policy-makers for their positions.³⁰ The analysis included public justifications, found in official documents and statements published by news outlets, and justifications given in an interview setting where the interviewees were asked to provide a rationale for their choice of action. The human rights clause case was selected for several reasons. It is a longitudinal case which allows us to study human rights promotion over time; it is representative of the EU's efforts to promote human rights in its external action;³¹ and it serves as a ‘critical’ case to investigate the hypothesis that the EU's human rights policies are moving towards cosmopolitan features. According to Yin, all of these are reasonable justifications for case selection.³² A case-study of the human rights clause further allows for in-depth insights into a complex phenomenon (human rights promotion) and emphasizing nuances that may have been glossed over in other studies.

To investigate the validity of my expectations I have used the following data sources: official documents from the EU and the OACPS, including the human rights clause as it is formulated in the Cotonou and post-Cotonou agreements; the EU and OACPS negotiation mandate (and accompanying reports) for the post-Cotonou agreement; and other relevant EU official documents which justify the EU's policies. To corroborate and nuance the findings from the official documents, four semi-structured interviews with EU officials were conducted in May 2018 and January 2020, during the early and concluding phases of the negotiations. Because only a few policy-makers work on the human rights clause, interviewees were not selected as representatives of a broader population but based on their centrality in the processes in which they participated. Finally, statements by relevant decision-makers in news outlets were used to cross-check and corroborate the data.

The human rights clause: a centrepiece in the EU's external relations

What characterizes the EU's rights-based approach to the LIO, and are there particular elements in how the EU goes about promoting human rights that spur its contestation? In the following, I seek to answer this question by zooming in on the human rights clause as it has materialized and developed in the EU–OACPS partnership. I will focus particularly on the legal status of the clause and the procedures for dispute settlement.

The origins of the human rights clause

In 1977, for the first time, the European Economic Community (EEC) suspended financial aid to a partner country, Uganda, as a direct result of human rights violations in the country. In its statement, the Council cited its members' common commitments to protect human rights under the Lomé Convention, and explained that the reason for withdrawing the aid was so that EEC funds did not contribute to the deterioration of human rights:

The Council agrees to take steps … to ensure that any assistance given by the Community to Uganda does not in any way have as its effect a reinforcement or prolongation of the denial of basic human rights to its people.³³

This Council statement, which later became known as the ‘Uganda guidelines’, constituted a breakthrough in what became a practice of suspending financial support following severe human rights violations.³⁴ After the Uganda incident, several cases of aid suspension occurred throughout the 1980s and 1990s. These decisions were taken unilaterally by the Council, where government ministers from each EU member state convene. Foreign policy decisions are traditionally considered an executive prerogative, because of the need to protect the state in an efficient and tactical manner. These early decisions to suspend financial aid can be understood as an expression of such a prerogative. As aid suspensions became more frequent, calls for transparency mounted. Yet it was not until 1995, as part of the Lomé IV bis Convention, that the EU's so-called ‘human rights conditionality’ was spelled out. During the negotiations on the fourth Lomé Convention the EU insisted on introducing a human rights clause which made full or partial suspension of the convention possible in cases of flagrant breaches of human rights. Suspension was intended as a measure of last resort, with ample room for political dialogue beforehand. While the clause created a common legal basis for the suspension of funds which would increase transparency on such decisions, the formulation of the essential elements and what would constitute a breach of these were ambiguous, leaving room for interpretation and thus also for selective implementation.³⁵

When the Lomé Convention came to an end at the end of the twentieth century, negotiations of a new partnership agreement between the EU and the then ACP Group of states were completed. The new Cotonou agreement expanded the human rights conditionality found in Lomé to cover respect for democratic principles, the rule of law (essential elements) and good governance (fundamental element).³⁶ The human rights clause consists of article 9, which defines the partnership's essential and fundamental elements, together with article 96, which sets out procedures for dispute settlement should one of the parties consider that the other party has not fulfilled the conditions of the agreement.

The Cotonou acquis

A legally binding commitment

At first sight, the human rights clause, as spelled out in the Cotonou agreement, reminds us of the central arguments posed in a conception of justice as impartiality. Human rights protection is given priority over state sovereignty by including legally binding procedures for conflict resolution and the ability to suspend cooperation in case of human rights breaches.

When breaches of essential elements occur, a first step is to conduct consultations between the parties to the agreement. Article 96 (2a) stipulates:

If, despite the political dialogue … a Party considers that the other Party fails to fulfil an obligation stemming from respect for human rights, democratic principles, and the rule of law … it shall … invite the other Party to hold consultations … to remedy the situation.³⁷

If these consultations do not lead to a satisfactory result, or in cases of so-called ‘special urgency’, parties can adopt ‘appropriate measures’ which are proportional to the violation. These measures can vary from providing extra funds to cutting financial support to projects that are associated with the breaches in question. The latter, also known as aid suspension, is a common EU tool, often denoted as part of the EU sanctions toolbox.³⁸ This would be in line with the first expectation derived from justice as impartiality, by making human rights legally binding and attaching a sanction mechanism for their enforcement.

Yet, if we look closer at the procedures for dispute settlement—namely, at who is entitled to implement, interpret and apply the human rights clause when breaches occur, questions arise with regard to whether the expectations of a conception of justice as impartiality are met.

Impartial dispute settlement?

Who exactly are the parties to the agreement that engage in dispute settlement, and can they be considered impartial? Article 96 (1) of the Cotonou agreement defines it in the following way: ‘the term “Party” refers to the Community and the Member States of the European Union, of the one part, and each ACP state, of the other part’.³⁹ If we look further into who participates in these consultations, the EU states: ‘In practice, consultations under article 96 take place at governmental level … The EU is represented in consultation procedures by the presidency of the Council and the European Commission’ (emphasis in original).⁴⁰ While the EU Council is commonly thought of as one of the legislative institutions of the EU, it also includes representatives from the executive bodies of each member state. The ACP working party, one of the preparatory bodies of the Council, plays an important role in discussing a possible initiation of article 96 as well as drafting the documents necessary for initiating consultations. The ACP working party consists of representatives (normally career diplomats) from the EU member states' permanent representations to the EU. Hence, on the EU side, consultations are conducted by representatives of the executive bodies of the EU and its member states, while members of national legislatures and the European Parliament are left out. In the consultations, the ACP is represented by government representatives from the relevant country(ies)—who are not impartial to human rights conflict, as they are the duty-bearers and thus either directly or indirectly party to human rights conflict within their state.

The use of executive actors in human rights dispute settlements did not go unnoticed during the early years of the Cotonou agreement. There have been calls for the inclusion of a broader set of actors in political dialogue and article 96 consultations between the EU and ACP. During the first revision of Cotonou, procedures for political dialogue were extended on the insistence of ACP negotiators to include representatives from the ACP–EU Joint Parliamentary Assembly and from the ACP secretariat.⁴¹ Yet, this applied only to the political dialogue covered in article 8 and not to consultations under article 96, and thus did little to secure a broader political representation and participation in these dialogue processes.

Article 96 consultations were frequent in the early years of the Cotonou agreement. 10 consultations occurred between 2000 and 2005.⁴² In some of these consultations, civil society representatives took an active part in the meetings. For instance, consultation between the EU and Mauritania after the Mauritanian coup d'état in 2005 included civil society representatives in the dispute settlement.⁴³ However, this was not typical, and it occurred only because government representatives decided to invite stakeholders to participate.

The right to initiate

Above, I have argued that political dialogue and consultations between the EU and ACP states is characterized by what we can call executive domination. Representative institutions or NGOs are seldom invited to the conversation, and they can only participate if executives find it worthwhile to invite them. This pattern also prevails when we look at who is entitled to initiate the clause.

According to article 2(a) of the Cotonou agreement, executives have the sole responsibility and right to define what constitutes a failure to fulfil obligation, or in other words, what kind of situation is considered sufficiently grave to initiate consultations.⁴⁴ In practice, only the EU has launched consultations with ACP states. The Council, on behalf of the community and the member states, sends a letter to the relevant ACP state inviting them to consultations. While members of the European Parliament and NGOs have asked the Council several times to initiate article 96 after human rights breaches, this is a decision taken by the Council alone. Indeed, a request from the European Parliament in 2014 that consultations be launched with Uganda and Nigeria, after both countries had introduced legislation criminalizing homosexuality and containing lengthy imprisonment penalties—and the death penalty, in the case of Nigeria—was not taken up.⁴⁵

In policy areas outside development, however, more representative procedures for dispute settlement exist. One example is the EU's Trade Barriers Regulation, under which companies and industry associations have the right to issue a complaint to the European Commission when they consider that a party is in breach of trade obligations. Bartels has proposed several ways in which civil society, directly or via the member states, could be given the opportunity to request the initiation of article 96 consultations.⁴⁶ The current lack of such a mechanism thus stands in contrast to similar agreements in the realm of trade—and in stark contrast to the EU's overall commitment to democratic principles and participation as enshrined in its treaties.

So far, the analysis suggests that the human rights clause is characterized by executive domination, largely leaving out representatives of democratic institutions and civil society. Such a prioritization places the onus on the states and weakens individuals' ability to claim and realize their rights. Hence, the EU's rights-based approach is characterized by a prioritization of support to duty-bearers (states) to fulfil their human rights obligations over supporting the empowerment of rights-holders to realize their human rights.

Post-Cotonou: strengthening individual autonomy?

In 2018 the EU and its partners in the ACP Group commenced negotiations on a successor to the Cotonou agreement. In the discussions, the European Commission has flagged the ambition to build a partnership of equals with the ACP.⁴⁷ There is a change in narrative from development cooperation and aid to international partnership, evidenced by the change of name in 2021 of the former Europeaid—Directorate-General for International Cooperation and Development (DG DEVCO) to Directorate-General for International Partnerships (DG INTPA). Furthermore, the post-Cotonou agreement envisages an important role for local actors. Article 2(8) states: ‘The Parties shall promote a multi-stakeholder approach, enabling the active engagement of a wide variety of actors in partnership dialogue and cooperation processes, including parliaments, local authorities, civil society and the private sector.’⁴⁸ This begs the question: does this narrative on creating equal partnerships and strengthening local actors go hand in hand with arrangements that would strengthen individuals' ability to claim their rights?

A political agreement on the post-Cotonou text was reached between the EU and OACPS in December 2020.⁴⁹ The negotiation mandates of the EU and the ACP, as well as several official documents released in the phase leading up to the negotiations, shed light on the respective aims and objectives of the negotiating partners. In its mandate, the OACPS advocates for a new agreement without conditionalities: ‘The ACP Group's negotiations with the EU under this pillar should be guided by the following principles: (i) The need for an enhanced, balanced, and reinforced political dialogue without conditionalities …’. The mandate also states the ambition to include stakeholders in political dialogue processes: ‘(iii) political dialogue with a wide range of stakeholders [such as] state actors; [non-state actors], including the private sector and academia, [p]arliamentarians as well as regional organisations’.⁵⁰ Yet, as we shall see below, this ambition did not translate into a stronger role for stakeholder involvement in the new formulation of the human rights clause.

A human rights clause was essential for the EU

What becomes clear from a perusal of the EU documents is that, for EU institutions, the issue of including a human rights clause post-Cotonou was essential.⁵¹ In its evaluation of the Cotonou agreement, the European Commission highlights that the post-Cotonou agreement had to continue to be legally binding in order to uphold its predecessor's human rights commitments:⁵²

One of the objectives of the proposed partnership … is that of promoting human rights and fundamental freedoms … Should the legally binding nature of the partnership be abandoned, these commitments would be lost—and this would be undesirable, given the changing international scene with emerging powers not necessarily sharing these values and principles.⁵³

The importance of seeking a legally binding agreement was corroborated by interviewees:

You had already a legally binding agreement with Cotonou, for 20 years, which is a very strong document and strong partnership agreement … everybody agreed that the so-called Cotonou acquis, especially on human rights and democracy, it would not be useful to give it up.⁵⁴

It was important to keep what we have built up with them, especially in relation to the values.⁵⁵

In addition, preserving the human rights clause became essential to the EU. There are several reasons for this. First, the EU had reformed its development cooperation instruments. Before 2021 the development assistance allocated for the Cotonou agreement was enshrined in the European Development Fund (EDF), an intergovernmental fund which was financed by direct contributions from the member states. The intergovernmental nature of the EDF allowed for ample dialogue with ACP countries on priority areas. But, after recurrent attempts, the EU had moved forward on the process of reforming its budget for external actions and by that including the EDF in its budget. All development cooperation is now allocated through the new instrument which is called NDICI–Global Europe. The reform was carried out to increase the democratic oversight and transparency over development cooperation within Europe, but decreased ACP countries ability to voice their opinions and affect decisions over the funds that were allocated to them.⁵⁶ The reform signified that the EDF ceased to exist and there was no longer a possibility to include self-standing finances in the new EU–OACPS agreements. Second, trade had also been moved out of the Cotonou agreement. The EU and the OACPS regions had gone through a process of negotiating stand-alone trade agreements, called Economic Partnership Agreements (EPAs), which were contested and controversial. Many of these EPAs did not include a specific human rights clause, instead relying on a reference to the human rights clause in the Cotonou agreement. Therefore the status of these commitments would be unclear, were the Cotonou agreement to expire without a successor.⁵⁷ The European Commission and the European External Action Service (EEAS, the EU's diplomatic service) were concerned with designing the post-Cotonou agreement in a way that would confirm that human rights obligations remained in the EPAs.⁵⁸ Some legal scholars argued that the EPAs would not be affected, in legal terms, by the expiration of the Cotonou agreement.⁵⁹ Yet policy-makers were concerned about losing the commitment to the Cotonou acquis. As one interviewee noted: ‘It was already a difficult exercise to negotiate these agreements [the EPAs] … and they all refer to Cotonou, so it is very important that in the new agreement a link is properly made.’⁶⁰ Members of the European Parliament also highlighted that the inclusion of a human rights clause was essential.⁶¹

However, there are no signs of a wish to reform the human rights clause in line with ambition to strengthen local ownership and engage in more direct ways with citizens. Rather, what is visible in the EU mandate for post-Cotonou is a strengthened role for political dialogue with OACPS governments. In the new agreement's article 101, which replaces article 96 of the Cotonou agreement, there is stronger language around political dialogue, especially to avoid ‘appropriate measures’ Article 101(4) states:

The Parties shall address divergences between them within the partnership dialogue, with a view to preventing situations arising in which one party might deem it necessary to have recourse to the consultations … ⁶²

The parties to the agreement are defined in the following way: ‘the term “Party” refers to the [EU Party], on the one part, and each OACPS Member, on the other part’ (Article 101(3)).⁶³ According to interviewees, this formulation was inserted to reinforce the message that dialogue is the first option and that appropriate measures (i.e. sanctions) under article 101 are only to be used as a last resort.⁶⁴ The OACPS opposed the inclusion of a human rights clause in the post-Cotonou negotiations and wanted to water down the conditionality mechanism.⁶⁵ For instance, the ACP's negotiation mandate proposed a strengthening of political dialogue to ‘[p]revent situations arising in which one Party might deem it necessary to have recourse to the consultation procedures’.⁶⁶ EU policy-makers are aware of this position, with one interviewee stating: ‘it is very much perceived by the Africans, where it has taken place, as a punishment procedure’.⁶⁷ Therefore, the EU has sought to revise the mechanism by reinforcing the dialogue element:

It is better that we have an established process so that in the heat of the discussion we meet, and we dialogue … It is important that everybody realizes what it is about, it is to install a process of dialogue, and steps that will be taken so that it is clear for everybody what will happen when the situation is very complex and also to avoid these ad hoc approaches.⁶⁸

With the renewed formulation, the EU sought to emphasize the difference between political dialogue on human rights and the article 96/101 procedures:

In Cotonou, sometimes political dialogue was perceived as a pre-chamber to article 96 consultations, which it actually isn't … It is not stated in the agreement like that, but it was perceived like that … we have to see how we can make this clearer, so that the partners are more open to political dialogue, which should affect all areas of our partnership, not only controversial issues.⁶⁹

Yet, the main concern for the EU is to maintain the dialogue's bilateral nature between executives.

Less asymmetrical but more executive

A new feature in the post-Cotonou human rights clause is the inclusion of a special joint committee that will provide advice on the resolution of disputes.

While preserving the bilateral character of the consultations, a special joint committee shall be involved upon agreement of the Parties concerned … The Special Joint Committee, consisting of an equal number of representatives of the [EU Party] and OACPS Members … shall provide advice on the fulfilment of obligations.⁷⁰

The establishment of the new committee is likely to improve the asymmetric nature of consultations between the EU and OACPS.⁷¹ However, it will do little to increase transparency and representation of non-state actors and affected parties in the consultation process. Another new formulation in the post-Cotonou text is the possibility to include regional and international actors in the consultation process:

The Parties agree that consultations shall be conducted at the level, and in the form, considered most conducive to reaching a mutually acceptable solution. They agree that, while preserving the bilateral character of the consultations, relevant regional and international actors may be involved in the consultation process upon agreement of the Parties concerned.⁷²

This formulation does little, however, to increase citizens' representation in relation to the decisions that affect them. While international and regional representatives and experts might be a welcome addition to the dialogue, it remains for EU and OACPS executives to decide whether such representatives should be invited—and these representatives are not likely to be drawn from citizens' initiatives, parliamentary institutions or NGOs.

Finally, article 101 also includes a new formulation that enables the EU and OACPS to keep dispute resolution away from the public:

Any question related to the interpretation of this Agreement may be resolved through consultations within the OACPS-EU Council of Ministers or, upon the Parties' agreement, a special subcommittee, or any other appropriate mechanism reporting to the OACPS-EU Council of Ministers.⁷³

In practice, this section of article 101 reduces the need for using the consultation procedure, in that it provides for any dispute to be resolved between the parties in the OACPS–EU Council of Ministers. On the one hand, this formulation then goes some way towards meeting OACPS demands for reducing conditionalities and solving disputes through dialogue, instead of the consultation procedure. Yet, on the other hand, it increases executive domination and reduces transparency for EU and OACPS citizens in terms of which disputes are discussed and what solutions are found to end them. In sum, the changes in the human rights clause relate to strengthening EU dialogue with ACP governments, and do not reflect a concern for extending this dialogue or the consultation procedure to include relevant stakeholders in a systematic way.

In sum, the post-Cotonou human rights clause is similar to its predecessor. The new formulations that exist reinforce the dominance of executives rather than securing impartiality or representation. This turn towards more executive dominance is exacerbated by the lack of participation by NGOs and civil society groups in the negotiations of the post-Cotonou agreement,⁷⁴ leaving citizens' representatives without opportunities to get their voices heard. The human rights clause falls short of the second expectation set out by a conception of justice as impartiality, namely securing procedures for impartial or democratic dispute settlement.

Reconsidering a rights-based approach to the LIO

What do these findings tell us about the EU's approach to the LIO and its contestation? The analysis above brings to the fore some weaknesses of the EU's human rights clause that have yet to be addressed in the literature. This article has shown that, in addition to inconsistency and power imbalance, the human rights clause has a democratic problem. This is because the human rights clause makes a move towards supranationalism—towards more authoritative, legally binding human rights commitments. However, it falls short of a conclusive move towards what in this article has been labelled global justice as impartiality. Instead, the clause is characterized by a combination of supranational human rights commitments and intergovernmental features where executives in the EU and partner governments maintain the authority to initiate and settle disputes on human rights. The result is a half-hearted move towards supranational human rights commitments that neither fully respects nation-states' sovereignty nor fully allows for a supranational and impartial dispute settlement mechanism.

This halfway solution creates a justificatory and legitimation problem for the EU. While the literature has discussed the legitimation problem as an issue of double standards and abuse of power, this article has brought to the fore other weaknesses that contribute to unpacking and nuancing our understanding of the connection between the EU's human rights policies and its contestation. Critiques of the human rights clause argue that the EU has double standards with regards to human rights commitments. The inconsistent application of the clause makes it impossible to determine whether the EU acts in line with its human rights concerns or operates out of concern for commercial or security interests.⁷⁵ More radical critics argue that the EU does not promote human rights, but rather engages in neo-colonial intervention. These critics rely on the assumption that the asymmetric distribution of power between the EU and its partners in the global South allows for EU domination over its partners.⁷⁶ The same factors are highlighted in the debate about contestations of the LIO. Börzel and Zurn argue that the move towards greater liberal intrusiveness in the LIO has given rise to contestation in different forms.⁷⁷ They highlight double standards and western dominance as causal mechanisms which limit the legitimation of liberal authority. Does that mean that we have shifted too far towards postnational liberalism, and that the solution is to reintroduce the hierarchy between sovereignty and human rights?

Perhaps not. First, if policy-makers decide to reintroduce the hierarchy between sovereignty and human rights in the EU's cooperation agreements with third states, there is no guarantee that domination in line with what is described above would disappear. While this would mean the end of the consultation procedure for human rights disputes, it will not take away the possibility that the EU will unilaterally suspend funding—or other types of cooperation—when human rights breaches occur. The example of the suspension of EU financial aid to Uganda in 1977, described earlier, highlights this.

Another possible solution would be to make a conclusive move towards a supranational order by giving human rights equal status to the rights of states, and improving the arrangements in place to solve disputes between parties. One would have to reduce the risk of arbitrary implementation and qualitatively improve the mechanisms for dispute settlement in line with either impartial dispute settlement procedures, or with procedures for democratic representation where the affected parties would be given a voice. Whether such a move would entail a reform of the human rights clause or a more fundamental move—where the clause is scrapped, and a new mechanism, perhaps entirely separate from EU and OACPS institutions, is constructed—is not the point of discussion here.⁷⁸ The point is rather to illustrate the theoretical possibility of making the human rights clause a fully supranational mechanism that would enable individuals' democratic participation.

Sceptics might point out that a more conclusive move towards a democratic supranational human rights mechanism is not, in fact, what the EU's partners want. They might also point to the fact that the OACPS has contested the human rights clause's supranational character and has sought a reform of the human rights clause in line with less intrusive authority, focusing on dialogue instead of consultations with a suspension mechanism.⁷⁹ Yet, this contestation of the consultation mechanism comes mainly from ACP governments, which have little interest in expanding the debate about their possible participation in human rights breaches to include multiple stakeholders or affected parties in their own countries. If we look to the voices of civil society organizations representing affected parties in partner countries where human rights are under pressure, the international community, including the EU, serves as key interlocutors in those affected parties' fights to realize their rights. The crackdown on LGBTI human rights in Uganda in 2014 is a telling example. When the European Parliament called on the Council to open article 96 consultations with Uganda due to a harshly repressive anti-LGBTI law, a split reaction was observed on the part of authorities and affected groups in Uganda. On the one hand, the ACP reacted with a statement calling ‘upon the EU to respect the democratic processes of sovereign States and to refrain from taking action which with could undermine the basis of its development partnership with the ACP group … and to desist from tying sexual orientation and homosexuality to development aid and cooperation’.⁸⁰ A coalition of civil society organizations in Uganda, on the other hand, called for the international community to take an active role in condemning the bill and for donors to conduct an ‘urgent review of Aid to organizations and government institutions that have failed to demonstrate respect for Human Rights and those that have been actively supporting this bill’.⁸¹ While there is no specific call to launch the EU–ACP human rights clause, the same statement reflects a call for an active involvement by international actors in condemning and punishing a government that represses these activists' human rights.⁸² Calls for a less executive-driven Africa–Europe partnership with more permanent stakeholder engagement mechanisms have also increased: among the most visible were during the 2022 Africa–Europe Week⁸³ and in the public consultation on post-Cotonou conducted in 2015.⁸⁴

Such calls for better avenues for representation are also visible in the literatures on LIO and relations between the EU and Africa. Reus-Smith and Zarakol identify recognitional justice claims as a key feature of the crisis of the LIO.⁸⁵ Acharya calls for ‘representation and participation of the postcolonial countries to legitimize and transform the European-derived international order into a truly global order’ in his 2018 book Constructing global order.⁸⁶ He highlights some instances of global South agency in the construction of the liberal international order. Contrary to the widely held assumption that global South countries advocate first and foremost for equal sovereignty between states, he shows how African agency was central to limit state sovereignty in the creation of the Responsibility to Protect (R2P) doctrine. In the field of development policy, there are longstanding calls for widening our lenses with respect to the principles of ownership, from focusing on partner government ownership to focusing on the involvement of multiple stakeholders in their countries' development trajectories, allowing for democratic ownership.⁸⁷

Emphasizing claims of recognitional justice widens our lens as to why the EU's human rights-based approach to the LIO is contested. There might be more to this than a breach of the sovereignty principle. This article has contributed with a more nuanced picture of why the human rights clause is controversial. The EU aspires to create supranational and impartial solutions for solving human rights breaches. But the human rights clause falls short of becoming a completely impartial solution to human rights dispute settlement. Rather, it is characterized by a combination of supranational and intergovernmental solutions that neither respects the equal sovereignty of states nor allows for a democratic or impartial settlement of disputes. The ambiguities with which the EU makes this half-hearted shift towards a supranational human rights foreign policy leave room for critique and contestation.

Conclusion

In this article, I have argued that in addition to the problems of inconsistency and power imbalance, the EU's human rights policy has a democratic and representational problem. I have made this argument by showing that the EU's human rights clause lingers somewhere between an intergovernmental dialogue, which respects equal sovereignty between states, and a supranational mechanism in which an impartial or democratic authority can sanction non-compliance with collective decisions. On the one hand, the human rights clause makes respect for human rights legally binding and spells out conditions for sanctioning non-compliance—something that is indicative of supranational arrangements. On the other hand, the initiation and execution of the consultation procedure is left in the hands of executives in the EU and its partner states, and does not allow for impartial or democratic dispute settlement. The EU's vacillation between these ideal-typical solutions results in a compromise that leaves its human rights policy rife with ambiguities and leaves ample room for contestation.

By making this argument, the article contributes to the theoretical and empirical discussion about the crisis of the LIO. I started from the assumption developed in the introductory article to this special section, namely that the ‘troubles facing the liberal order’ are linked to a ‘quest for undominated relations’.⁸⁸ To understand what it takes to move away from domination, I outlined an ideal-typical conception of justice as impartiality which would give human rights principles equal standing with state sovereignty, provide institutions beyond states with supranational authority and develop an impartial or democratic mechanism for dispute resolution. This theoretical perspective leads to a better understanding of what it would take for the EU to realize a rights-based approach to the liberal order. The order cannot be decoupled from the claims of justice on which it relies. This theoretical move also helps identify in what ways the EU falls short of its ambitions, and the ambiguities that the EU's attempted move creates. Thus, it is not supranational human rights policies, per se, that are problematic, but rather the ambiguities that are created by the EU's half-hearted step and that leave it open to contestation.

The article also contributes with new empirical insights as regards the EU human rights policies. While earlier literature has focused on the legitimation problem the EU faces due to inconsistent application and abuse of power, I highlight a separate but equally pertinent problem with respect to the legitimacy of the EU's human rights policies. The human rights clause is a mechanism that allows for sanctioning of non-compliance, yet its consultation procedure falls short of meeting the criteria of impartiality or participation. The EU–OACPS human rights clause conceives of dispute settlement as a matter between the EU and partner state executives. Initiating and participating in the consultation procedure is something that is left in their hands. Thus, the EU's rights-based approach does not include adequate solutions from the standpoint of individuals. Their rights are made binding between the parties, yet dispute settlement is kept as an issue for executives. The risk of domination is imminent, as citizens whose rights are violated are not given the opportunity to critique or contest the executives' decisions. These findings bring about a more nuanced understanding on the difficulties the EU faces when it tries to create more supranational political arrangements as a vanguard of a more rights-based liberal order.⁸⁹

Footnotes

Author notes