WTO Legality of Enforcement Measures of the Human Rights Conditionality Clause

The European Union (hereinafter EU) has used so-called the human rights conditionality clause (hereinafter HRCC) as an instrument of its human rights diplomacy. The standard HRCC has been incorporated in its trade and cooperation agreements, including the Korea-EU Framework Agreement. It provides that respect for human rights constitutes essential elements of the agreement, and entitles the parties to the agreement to act against serious violations of human rights by the other parties. Inclusion of the HRCC in trade and cooperation agreements has raised legitimacy issues. Among them, compatibility of its enforcement measures with the principles of WTO law is one of the most prominent. Third states have opposed without an exception that the HRCC does not suit the objective and purpose of trade and cooperation agreements. In the same vein, doubt has been raised about conformity of enforcement measures of the HRCC such as unilateral suspension of the agreement or trade embargo adopted on the basis of the HRCC to the principles of international trade law, particularly those of WTO law. This paper will show that doubt as to compatibility of enforcement measures of the HRCC with the principles of WTO law as such is well founded, whereby it will shed fresh light onthe question about whether the HRCC is indeed an appropriate instrument for EU’s human rights diplomacy.