The Scope of Extraterritorial Human Rights and the Front Polisario cases

I have argued above that Art. 3 (5), 21 TEU establish a clear legal basis to assess and take into account internal and external human rights impacts of, in principle, all types of policies. Howev-er, this does not clarify which human rights are to be considered, and to what extent. In particu-lar, it is controversial whether all fundamental rights laid down in the CFR apply both internally and extraterritorially, or whether only those human rights that are recognized as jus cogens and erga omnes obligations under international law apply extraterritorially.

A European Commission statement seems to reflect a broad approach. In recognizing that the EU has to comply with human rights in its external actions, it stated that “EU external action has to comply with the rights contained in the EU Charter of Fundamental Rights which became bind-ing EU law under the Lisbon Treaty, as well as with the rights guaranteed by the European Con-vention on Human Rights.”⁷⁴⁵ This is a broad approach, which has been largely confirmed by the General Court in Front Polisario, according to which EU institutions must, before concluding a trade agreement, examine extraterritorial impacts on, in principle, all fundamental rights laid down in the CFR.⁷⁴⁶ In contrast, the Advocate General applied a narrower approach, while the Court of Justice avoided addressing that issue at all. It is therefore worth having a closer look at the facts and legal arguments of the Front Polisario case. This is also because the General Court has established basic legal standards defining when and how to conduct HRIAs (this will be ad-dressed more closely in part IV).

In 2015, the General Court annulled a Council Decision to approve an amendment to the Associa-tion Agreement between the European Union and the Kingdom of Morocco (“AssociaAssocia-tion

743 On the consequences of the failure to conduct HRIAs for indirect judicial review and review by the Eu-ropean Ombudsman see chapter 10.

744 This will be discussed in the final chapter in the context of judicial review.

745European Commission and High Representative of the European Union for Foreign Affairs and Security Policy, Human Rights and Democracy at the Heart of EU External Action – Towards a More Effective Ap-proach (2011), COM(2011) 886 final, p. 7.

746 General Court of the European Union, Judgment of 10 December 2015, T-512/12, Front Polisario, para 228.

Agreement”) and an agreement providing for mutual liberalization (“Liberalisation Agreement”).

The dispute concerned the applicability of the agreements to the disputed territory of Western Sahara, which under international law counts as a non-self-governing territory in accordinace with Art. 73 of the UN Charter,⁷⁴⁷ which is still largely controlled by Morocco. Front Polisario, an organization seeking independence for Western Sahara, brought an action for annulment against the Council decision arguing, inter alia, that the EU failed to consider that Morocco exploits the natural resources of the territory of Western Sahara and infringes the human rights of people living there. These effects would be exacerbated by the Liberalisation Agreement if it applied to Western Sahara. In substance, Front Polisario claims that the Liberalization Agreement encour-ages economic domination by Morocco. This would undermine the realization of the right to self-determination. The EU would therefore infringe EU fundamental rights, the EU’s general objec-tives and principles of international law.⁷⁴⁸

On the merits, the General Court relied on settled case law and confirmed that the Council enjoys wide discretion in the field of external relations. In order to determine whether it has committed a manifest error of assessment, the Courts of the European Union must “verify whether it has examined carefully and impartially all the relevant facts of the individual case, facts which sup-port the conclusions reached”.⁷⁴⁹ Impacts on interests protected by human rights would be “rel-evant facts” in this sense. The General Court found that the Council had failed to take the human rights situation in Western Sahara adequately into account and to assess the potential human rights impacts of the Agreement for people living on that territory. The Court held that the pro-tection of fundamental rights of the population of Western Sahara – and thus a territory outside the EU – is “of particular importance and […], therefore, a question that the Council must exam-ine before the approval of such an agreement.”⁷⁵⁰

The General Court also makes clear that it does not matter, as the Council had argued, that Mo-rocco would be responsible for compliance with international and human rights obligations con-cerning the territory of Western Sahara. While Morocco bears the primary responsibility, it does not release the EU from its own human rights obligations. The General Court established – and this resembles the complicity approach outlined above – a co-responsibility of EU institutions:

“That argument is correct, but it ignores the fact that, if the European Union allows the export to its Member States of products originating in that other country which have been produced or obtained in conditions which do not respect the fundamental rights of the population of the territory from which they originate, it may indirectly encourage such infringements or profit from them”.⁷⁵¹

Consequently, the obligation to assess human rights impacts emerges not only if the EU initiative directly causes human rights impacts, but also if it – indirectly – “encourages” or “profits from”

747 International Court of Justice, Advisory Opinion of 16 October 1975 on Western Sahara.

748 General Court, Front Polisario (above, n. 746), 228 et seq.; Vivian Kube, The Polisario case: Do EU fun-damental rights matter for EU trade policies?, in: EJIL: Talk!, available at:

https://www.ejiltalk.org/the-polisario-case-do-eu-fundamental-rights-matter-for-eu-trade-polices/.

749 General Court, Front Polisario (above, n. 746), para 225.

750 Ibid., para 227.

751 Ibid., para 231.

infringements. This reflects the “aid or assist” requirement under the complicity approach illus-trated above⁷⁵².

It is against this background that the General Court identifies an obligation to assess the extra-territorial and factual human rights impacts of the contested Decision. Here, the General Court declares that, in principle, all fundamental rights laid down in the CFR could apply extraterrito-rially and must be assessed:

“In particular, as regards an agreement to facilitate, inter alia, the export to the European Union of various products originating in the territory concerned, the Council must exam-ine, carefully and impartially, all the relevant facts in order to ensure that the production of goods for export is not conducted to the detriment of the population of the territory concerned, or entails infringements of fundamental rights, including, in particular, the rights to human dignity, to life and to the integrity of the person (Articles 1 to 3 of the Charter of Fundamental Rights), the prohibition of slavery and forced labour (Article 5 of the Charter of Fundamental Rights), the freedom to choose an occupation and right to engage in work (Article 15 of the Charter of Fundamental Rights), the freedom to con-duct a business (Article 16 of the Charter of Fundamental Rights), the right to property (Article 17 of the Charter of Fundamental Rights), the right to fair and just working con-ditions and the prohibition of child labour and protection of young people at work (Arti-cles 31 and 32 of the Charter of Fundamental Rights).”⁷⁵³

The General Court concluded that “[i]t does not follow either from the Council’s arguments or from the evidence that it attached to the file that it carried out [such] an examination”.⁷⁵⁴ The General Court consequently partially annulled the contested decision. This judgment is based on an abuse of discretion as the General Court cites the standards of review generally applicable to cases where EU institutions enjoy wide discretion: “in order to verify whether it has committed a manifest error of assessment, the Courts of the European Union must verify whether it has ex-amined carefully and impartially all the relevant facts of the individual case, facts which support the conclusions reached”.⁷⁵⁵ The General Court therefore did not have to continue and assess whether and to what extent the contested Decision would entail or contribute to specific in-fringements of human rights (as entitlements) in Western Sahara.⁷⁵⁶

The General Court quite directly declares all fundamental rights applicable even though the ex-traterritorial applicability of fundamental and human rights is a controversial issue.⁷⁵⁷ Advocate General Wathelet in Front Polisario rejects this broad extraterritorial aplication of the CFR. Ra-ther, he adopts the ECtHR’s doctrine of effective control and states that “fundamental rights may, in some circumstances, produce extraterritorial effects. That is certainly the case where an activ-ity is governed by EU law and carried out under the effective control of the EU and/or its Mem-ber States but outside their territory”.⁷⁵⁸ The Advocate General does not deny the obligation to examine human rights impacts in third countries and, in particular, “to study the impact which

752 See section 4.7.2.2.

753 Ibid., para 228.

754 Ibid., para 244.

755 Ibid., para 225.

756 Opinion of Advocate General Wathelet, Front Polisario (above, n. 716), para 234

757 Kube, ‘The Polisario case: Do EU fundamental rights matter for EU trade policies?’ (above, n. 748).

758 Opinion of Advocate General Wathelet, Front Polisario (above, n. 716), para 270.

that agreement could have on human rights“ – however, instead of referring to all rights of the CFR, the EU must rather “respect peremptory norms of international law (jus cogens) and erga omnes obligations”⁷⁵⁹ which include “principles and rules concerning the basic rights of the hu-man person”.⁷⁶⁰ The exact scope of human rights qualifying as jus cogens and erga omnes obliga-tions is not being addressed in much more detail. So far, only the most important core human rights are generally recognized as jus cogens, such as the prohibition of genocide or systematic racial discrimination.⁷⁶¹ The relevance for HRIAs of economic policies would then be limited.

However, a broader list of jus cogens norms seems at least possible. For example, the (then) Court of First Instance in Kadi-I held that jus cogens could also include the prohibition of the ar-bitrary deprivation of the right to property.⁷⁶² However, this seems not decisive if one refers to erga omnes obligations instead. AG Wathelet seems to – convincingly – assume that the scope of human rights erga omnes obligations is broader than the short list of jus cogens norms. In partic-ular, he indicates that, in order to determine the scope of erga omnes obligations, “[r]ecourse could be had here to the rights recognised and protected by the International Covenant on Civil and Political Rights”. ⁷⁶³ Considering that EU law recognizes the indivisibility of human rights, reference should then also be made to the rights laid down in the ICESCR.

Against this background, there might not be a major practical difference between the General Court’s and the Advocate General’s approach. Relying on erga omnes obligations under interna-tional law has the advantage that the EU examines extraterritorial human rights impacts based on legal sources applicable to both the EU and to third states. Still, it is not compelling to apply the ECtHR’s restrictive interpretation of the territorial jurisdication clause in the Convention to the CFR – as the CFR does not contain a comparable clause.⁷⁶⁴ In particular Article 51 of the CFR only contains a jurisdiction clause ratione materiae, not ratione loci. A more convincing interpre-tation would therefore focus on the exercise of EU powers as such: “where the EU exercises its

759 Ibid., para 257.

760 Ibid., para 276 et seq., referencing inter alia: ICJ, Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3. (1970), para 34.

761 Dann, The Law of Development Cooperation (above, n. 4), p. 269; Bryde, ‘Konstitutionalisierung des Völkerrechts und Internationalisierung des Verfassungsrechts’ (above, n. 203), p. 66.

762 CFI, Kadi (above, n. 716), para 242. The ECJ later set aside the judgment. Instead, the ECJ reviewed the respective EU acts in light of EU fundamental rights: ECJ, Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation (2008). The ECJ therefore did not further address the scope of jus cogens.

763 Opinion of Advocate General Wathelet, Front Polisario (above, n. 716), para 276 footnote 131. Conside-ring that EU law recognizes the indivisibility of human rights, reference should then also be made to the rights laid down in the ICESCR. The relationship between jus cogens and erga omnes obligations may re-quire further analysis. In line with the abovementioned interpretation, Bryde has explained why the scope of jus cogens and erga omnes obligations should not be identical, concluding that erga omnes obligations include human rights beyond the narrow jus cogens catalogue: Bryde, ‘Verpflichtungen Erga omnes aus Menschenrechten’ (above, n. 501), p. 169. In the context of the Front Polisario cases, it would have been desirable had AG Wathelet been more explicit in this regard. Critics might refer to footnote 121, where he states that“[t]he norms recognised as peremptory norms of general international law coincide with those recognised as erga omnes obligations“. This is indeed a slightly ambigous wording. However, considering the aforementioned reference to the ICCPR as an interpretive source for erga omnes obligations, the sta-tement in footnote 121 could only mean that all peremptory norms are also erga omnes obligations, whe-reas other human rights recognized in the ICCPR are “only“ erga omnes obligations but not jus cogens.

764 Antal Berkes, ‘The extraterritorial human rights obligations of the EU in its external trade and invest-ment policies’, Europe and the World: A law review, 2 (1) (2018), pp. 1–21, p. 6; Ryngaert, ‘EU Trade Agreements and Human Rights: From Extraterritorial to Territorial Obligations’ (above, n. 429), p. 379.

powers, it owes human rights obligations to persons affected by such exercise of power, irre-spective of the location of those persons”.⁷⁶⁵ Indeed, Article 52 (3) sentence 2 makes clear that the EU is not prevented from providing more extensive protection than the ECHR.⁷⁶⁶

The Court of Justice did not address the scope of applicable human and fundamental rights. The General Court had granted standing to Front Polisario,⁷⁶⁷ holding that Front Polisario was direct-ly and individualdirect-ly affected by the challenged decision because the Agreement between the Eu-ropean Union and Morocco would also apply to Western Sahara.⁷⁶⁸ The ECJ disagreed with this latter conclusion. Unlike the General Court, it found that the Liberalisation Agreement does not apply to the disputed territory of Western Sahara because it may not apply there due to, inter alia, the principle of relative effect of treaties.⁷⁶⁹ This procedural aspect of the ECJ judgment will be addressed in the final chapter of this book in the context of the judicial review of HRIAs. For now, it is sufficient to note that the ECJ did not reverse the General Court’s judgment on the mer-its: neither the ECJ nor the Advocate General⁷⁷⁰ denied the obligation of EU institutions to exam-ine the extraterritorial human rights impacts of EU decisions.

In conclusion, the General Court’s Front Polisario judgment refined the normative framework for HRIAs of international agreements.⁷⁷¹ It concerns different dimensions that will again be dis-cussed in the following chapters. First, the Court determines what triggers the obligation to con-duct an HRIA.⁷⁷² This is essentially the case if facts are “likely to give rise to doubt”⁷⁷³ that the

765 Ibid., p. 380; similar: Peters, ‘Global Constitutionalism: The Social Dimension’ (above, n. 189), p. 304.

Ryngaert even challenges the underlying distinction between territorial and extraterritorial human rights jurisdiction, at least insofar as the human rights impacts of EU decisions implementing international agreements are concerned. He states that human rights obligations which the EU might have vis-à-vis distant strangers in this context need not be characterized as ‘extraterritorial’ at all. Instead, he argues that the EU’s human rights obligations in the context of such agreements should be based on “due dili-gence” requirements and duties of care, i.e. on obligations that have a territorial character because the relevant decisions are taken within the EU territory. He therefore suggest “territorializing” human rights obligations towards distant strangers: Ryngaert, ‘EU Trade Agreements and Human Rights: From Extra-territorial to Territorial Obligations’ (above, n. 429), 383 et seq.

766 Ibid., p. 379.

767 It considered Front Polisario a “legal person” in the sense of Article 263 (4) TFEU. The legal statuts of Front Polisario is complex, however this is not relevant for the point addressed here. It suffices to say that the General Court avoided to address controversial issues, for example to what extent Front Polisario would be a legal person because it is a “national liberation movement”. Instead, it applied case law which granted the status of a “legal person” in the sense of Article 263 TFEU even to those associations that are not formally recognized as legal persons under corporate law. This is the case if the EU institutions treat an association “as being a distinct person”, and if it has “constituting documents and an internal structure giving it the independence necessary to act as a responsible body in legal matters”, see: General Court, Front Polisario (above, n. 746), para 52–53.

768 Ibid., p. 116.

769 ECJ, Judgment of 21 December 2016, C-104/16 P, Front Polisario, para 100 et seq.

770 Opinion of Advocate General Wathelet, Front Polisario (above, n. 716).

771 One might interpret the Front Polisario judgment narrowly as only covering situations where extrater-ritorial human rights effects occur in disputed territories like Western Sahara. However, such a narrow reading should be rejected as it it would render “the inhabitants of a ‘disputed’ territory better off than the inhabitants of a non-disputed territory, who may be equally adversely affected by an EU trade agreement.

This distinction between individuals, only based on the status of a particular territory, flies in the face of the universal application of human rights.” Ryngaert, ‘EU Trade Agreements and Human Rights: From Extraterritorial to Territorial Obligations’ (above, n. 429), p. 392.

772 See chapter 6.

773 General Court, Front Polisario (above, n. 746), para 235 ff.

agreement may have negative human rights impacts or impacts on the right to self-determination. To determine whether facts give rise to doubt, the General Court reviews differ-ent sources of information, including an NGO report about the human rights situation in Western Saharah. It is therefore important how much publicity an issue has gained.⁷⁷⁴ This indirectly strengthens the role of, inter alia, UN and civil society human rights reporting: the more public attention a human rights issue gains, the more likely it is that the EU institutions must examine these issues before approving an international agreement. The General Court and the Advocate General also define the scope of the extraterritorial duties which include human rights as policy objectives and, to a certain extent, arguably also as entitlements: as policy objectives, EU institu-tions must, first of all, exercise their discretion properly and take human rights impacts carefully and impartially into account.⁷⁷⁵ In addition, EU institutions must “before concluding internation-al agreements, […] ensure compliance” (emphasis added)”⁷⁷⁶ with jus cogens and erga omnes ob-ligations, which include “the principles and rules concerning the basic rights of the human per-son”.⁷⁷⁷ As the EU institutions already failed to comply with the first requirement, the General Court did not have to address rights as entitlements in more detail.