Open letter: EU negotiations with Vietnam, DG Trade called on to carry out HRIA

Commissioner for Trade, Mr De Gucht,
Brussels, 4 July 2014

Open letter: EU negotiations with Vietnam, DG Trade called on to carry out HRIA

Dear Commissioner,

FIDH has consistently denounced the lack of implementation of the EU commitments to duly proceed to human rights impact assessments (HRIA) when launching trade and investment agreement negotiations. Through various approaches, (namely letters and meetings with members of your team) FIDH and the Vietnam Committee on Human Rights (VCHR), its member organisation, have asked for such assessments in the ongoing trade and investment negotiations with Vietnam .

Answering on the 26 June 2013 to our open letter dated 30 April 2013, you considered that the sustainability impact assessment (SIA) carried out in 2009 for all ASEAN countries remained valid, despite the fact that it did not integrate any human rights analysis. We are given to understand that you consider this lack of a human rights component to be justified because the negotiations with Vietnam are taking place under the legal framework established in 2007 for FTA and the EU has only committed itself to including human rights in its assessments in 2011 and 2012, after the EU Charter of fundamental rights entered into force, and after the adoption of the EU action plan on human rights and democracy.

We would like to ask you reconsider your position in light of the following legal arguments and developments:

* The EU has an obligation to ensure that the trade agreements it concludes do not lead to human rights violations in the EU and the countries where they are implemented. In order to do so, the EU should conduct HRIAs and take all necessary measures to prevent trade and investment agreements from impeding the enjoyment of human rights inside Europe and in other countries. Such an obligation is grounded in both international and European Union law. As highlighted by the UN Special Rapporteur on the Right to Food, “since States are bound by these [human rights] pre-existing treaty obligations, they are prohibited from concluding any agreements that would impose on them inconsistent obligations. Therefore, there is a duty to identify any potential inconsistency between pre-existing human rights treaties and subsequent trade or investment agreements, and to refrain from entering into such agreements where such inconsistencies are found to exist”. “By preparing human rights impact assessments prior to the conclusion of trade and investment agreements, States are addressing their obligations under the human rights treaties” . From a European legal perspective, respect for human rights has become "a requirement of the lawfulness of European acts". The European Court of Justice recognises its role in protecting fundamental rights referring to "international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories". The Treaty on European Union (TUE), which confirms that the EU is founded on respect for human rights, requires respect for the Charter of Fundamental Rights of the EU. In addition, Articles 21 of the TUE and 207 of the TFUE (Treaty on the Functioning of the European Union), respectively specify that the EU’s external action in the field of commercial policy shall seek "to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law", and that the EU "shall define and pursue common policies and actions […] in order to […] (b) consolidate and support democracy, the rule of law, human rights and the principles of international law". These provisions, contained in the primary law of the EU have been formulated to be binding (using shall instead of should), and oblige the EU not to take any action that would prevent or make more difficult the realisation of human rights, but rather to take all measures available to facilitate the respect, protection and fulfilment of human rights in partner countries. Such measures must be “appropriate” and “sufficient” , and concern the implementation of the EU’s external activities as well as the planning and design of those activities .
As a result, the commitment made in 2011/2012 to include human rights in impact assessments and to take human rights into consideration when negotiating trade and investment agreements is fully applicable to the current negotiation with Vietnam. This commitment is the official interpretation given to binding and pre-existing human rights obligations and it ensures compliance with the principle of good administration. It applies irrespectively of the date the negotiations were launched, as human rights impact assessments aim to prevent non-compliance of the future agreement and its implementation activities with existing human rights obligations.

* In addition, we bring to your attention the following developments that have occurred since your 26 June 2013 letter:

  • The negotiation mandate has expanded to encompass an investment component, and an Investor-state dispute settlement (ISDS) mechanism is considered. Consequently, we can no longer consider that the negotiation mandate has remained the same as in 2009, when the SIA was carried out, and the impacts of this new component should be assessed.
  • The resolution adopted by the European Parliament on 17 April 2014 on the “state of play of the EU-Vietnam Free Trade Agreement (FTA)” urged the Commission to carry out a human rights impact assessment “in line with the guiding principles of the UN Special Rapporteur on the right to food”. By doing so, the European Parliament, which has the power to refuse its consent to the future trade and investment agreement, underscored the European Commission’s protracted failure to comply with its obligations.
  • The Council conclusions “on a rights-based approach to development cooperation, encompassing all human rights” adopted on 19 May 2014 which, insisted on policy coherence and underlined the importance for the Commission to carry out “human rights impact assessments for trade and investment agreements” in that regard.

Based on this, we reiterate our request to realize in-depth human rights impact assessment for the trade and investment agreement negotiated with Vietnam.
As the next round of talks will be held before the end of September, with smaller meetings being held during the summer, the effective launch of the human rights assessment is becoming an increasingly urgent matter and we expect you to provide us with a concrete and positive answer within the next two months.

Sincerely yours,
Karim Lahidji
President
International Federation for Human Rights (FIDH)
Vo Van Ai
President
Vietnam Committee on Human Rights (VCHR)

CC:
Ms Catherine Ashton,
Mr Lambrinidis,
Member States,
Members of the European Parliament

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