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Extraterritoriality of EU law: A boon or a threat to human rights?

Dr Elaine Fahey, City Law School, speaking on the EU's "Global" approach to law-making

Experts gathered at the School of Law, Politics and Sociology for a first of its kind exploration on the extraterritoriality of EU law.

On 13 and 14 July 2017, the Sussex European Institute hosted a two-day workshop on The Extraterritoriality of EU Law and Human Rights after Lisbon: Scope and Boundaries.

The event was co-organised by Dr Samantha Velluti, Reader in Law at Sussex Law School and Dr Vassilis Tzevelekos, Senior Lecturer in Law at the School of Law and Social Justice, University of Liverpool.

The event brought together scholars and practitioners from the UK and Europe to explore the extraterritorial effects that EU law produces and the impact of the EU’s extraterritorial conduct on human rights in light of the changes introduced by the 2009 Treaty of Lisbon.

Such changes have made it unequivocally clear that the EU intends to have a significant role outside its borders, not only in relation to the external dimension of the Single Market, but also – and not without controversy – in relation to normative objectives of global justice such as human rights.

On the first day of the workshop, Joanne Scott, Professor of European Law at the European University Institute, gave the opening keynote speech. Professor Scott discussed the extraterritoriality and territorial extension in EU law, with a focus on the unilateral mechanisms that the EU deploys to extend the global reach of its laws, drawing from an array of legislative acts across different areas of EU law.

The lecture was then followed by a panel discussion which examined the theoretical dimensions of extraterritoriality. This was done from the perspective of both the EU legal order and international law in light of Articles 3(5) and 21 TEU, exploring the extraterritorial effects of the EU Charter of Fundamental Rights and the intersection between the European and international rule of law.

The analysis then moved to the relationship between EU law and international law, using selected case studies to look at the nature of extraterritorial accountability and human rights obligations of the EU with regard to:

  • trade and investment policies;
  • trade relations with occupied territories;
  • and the adoption of sanctions by the EU.  

On the second day of the workshop, the papers examined extraterritoriality in the context of selected areas of EU external action and EU law and policy.

The first panel session focused on the field of public procurement and competition law. This involved examining the extraterritorial use of public procurement for the protection of socio-environmental concerns and human rights protection and, linked to this:

  • global supply chains;
  • the expansive scope of application of EU public procurement rules both within the EU and outside the EU;
  • and the distinctive nature of the competition law rules in the EU-Ukraine Agreement in comparison with other EU international agreements.

The final substantive law panel examined the global reach of EU law and its extraterritorial effects in the context of trade and development, migration and data protection.

The workshop concluded with a session on policy developments with representatives of the EU Institutions and NGOs.

This discussion centered around the integration of fundamental rights in EU external policies with examples from the Common Foreign and Security Policy and the Common Fisheries Policy, selected judgments of the Court of Justice of the European Union as well as the design of development-friendly trade, and the existence of legal remedies for right-holders in third countries in the context of various EU unilateral, multilateral and bilateral instruments.

The presentations and discussions of the two-day workshop showed how extraterritoriality is conceptualized in many different ways, remaining an essentially contested concept.

Any examination of extraterritoriality requires a rethinking about territory, jurisdiction and sovereignty and, in this context, of the relationship between EU law and international law.

From a combined reading of Articles 3(5) and 21 TEU, the Union emerges not only as a passive norm recipient but also as a shaper and generator of international rules.

Ultimately, the workshop revealed that while it is certain that the extraterritorial effects of EU law and the extraterritorial conduct of the EU have important human rights effects and redistributive implications, identifying and understanding the exact contours of these effects and implications poses a significant challenge, which requires further research.

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By: Rachael Marie Phelps
Last updated: Thursday, 14 September 2017

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