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Extracts from a legal opinion dated 1 May 2009 by Prof. Takis Tridimas of Queen Mary College and Matrix Chambers London. He is a former referendaire of the European Court of Justice and chaired the drafting of the EU Accession Treaty and was senior legal advisor to EU presidency in 2003.
34. In my view, Article 2 imposes binding legal obligations.
35. Under Article 31(1) of the Vienna Convention on International Treaties, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Article 31(2) states that the context comprises the text, including, among others, its preamble and annexes.
36. It is true that Article 1(2) of the Agreement, which defines its objectives, does not include the protection of human rights as one of them: see above paragraph 11. In my view, however, this does not deny the binding effect of Article 2. Both a literal and a contextual interpretation support the view that Article 2 is intended to create legally binding obligations.
37. The ICJ has stated that “interpretation must be based above all upon the text of the treaty”.23 The importance of literal interpretation, as the starting point, has also been stressed by the ECJ24 and also other international tribunals, for example, the WTO Appellate Body. 38. The text of Article 2 is clear and unambiguous. Article 2 grants to the protection of human rights a cardinal position in the Agreement. As indicated by the use of the term “shall”, it uses peremptory language. This is a clear indication that the Parties intended to undertake binding commitments and not merely to make empty proclamations. The opposite view, would turn Article 2 into empty rhetoric.
39. Furthermore, Article 2 elevates respect for human rights to an “essential element” of the Agreement. No other provision refers expressly to any other aspect of the Agreement as being essential. It would be odd if the only provision which is stated to be essential were interpreted not to impose binding obligations on the Parties. Such an interpretation would endanger the character of the Agreement as a binding international treaty and would thus run counter to the clear intention of the Parties.
40. The binding effect of Article 2 is also supported by its position in the Agreement. It is placed in the introductory part, which precedes the individual titles containing the areas of cooperation included in the Agreement. It follows immediately after Article 1, which establishes the association between the Community and its Member States and Israel, and precedes even the objectives of the Agreement, which are defined in Article 3. It is thus an umbrella provision which is designed to underpin all provisions of the Agreement as it is expressly stated in Article 2 itself.
41. Finally, the binding character of Article 2 is supported by the case law. In Portugal v Council26 the Court was concerned with the interpretation of the human rights clause of the Community - India Cooperation Agreement27 which is phrased in less peremptory language than Article 2. Article 1(1) of that Agreement states as follows: “Respect for human rights and democratic principles is the basis for the cooperation between the Contracting Parties and for the provisions of this Agreement, and it constitutes an essential element of the Agreement.”
43. Although the Court used more cautious language, its judgment did not deny that Article 1(1) imposes binding obligations. The Court stated that Article 1(1) “may be, amongst other things, an important factor for the exercise of the right to have a development cooperation agreement suspended or terminated where the non-member country has violated human rights”
44. I therefore conclude that Article 2 of the Agreement imposes an obligation on each of the Parties to respect human rights. It follows that a Party who considers that the other Party has failed to respect human rights may avail itself of the non-execution clause of Article 79(2). I will examine that provision in due course. I now turn to examine the normative content of Article 2. …… 51. If I am correct, the international agreements which the Parties have committed themselves to observe under Article 2 include, among others, the Geneva Conventions. …… 57. Thirdly, Article 2 requires the Parties to base their relations with each other on respect for human rights. If this is interpreted literally, it appears to go beyond the mere obligation on each Party to ensure that its own actions comply with human rights and require each Party to base its relations with the other on mutual respect for human rights. It is thus arguable that, if Israel violates human rights and such violation is serious and persistent the Community fails to take appropriate steps, it will be failing in its duties under Article 2 because it will not be basing its relations with Israel on respect of human rights. I will return to this aspect of Article 2 below. …… IV. Interim conclusion 71. Thus, to summarize the discussion so far: a) Article 2 of the Agreement imposes binding obligations on the Parties to observe human rights; b) Under Article 2, the Parties are bound to observe human rights as they are protected by jus cogens, customary international law, the UN Charter, and international agreements which are in force and by which they have agreed to be bound; c) Where a Party considers that the other Party has failed to observe Article 2, it may have recourse to the non-execution clause of Article 79(2).
d) Article 76(c) does not authorize a Party to violate the UN Charter, customary international law, jus cogens or binding international agreements insofar as they apply to the situations envisaged by that provision. e) Article 2 imposes positive obligations on both Parties so that a where a Party engages in a serious and persistent violations of human rights, the failure of the other Party to take any steps is in itself a violation of Article 2.
116. I consider, however, that the Community is under a set of obligations which flow from Article 2 interpreted in the light of the general principle of Community law to respect fundamental rights and the general requirement to respect international law. In this context, the International Law Commission’s draft articles on Responsibility of States for internationally wrongful acts are of particular importance. Although these articles are not binding and their precise effect can be debated, in my view, considering their source, they are a legitimate point of reference for the interpretation of the Community’s obligations under Article 2.59
117. These obligations are the following.
118. First, the Community is under an obligation not to assist another State in the commission of an internationally wrongful act which entails breach of fundamental rights. This obligation derives from Article 6 TEU in combination with Article 16 of the draft Articles on the responsibility of States for internationally wrongful acts.
119. Secondly, where a State commits a serious breach of an obligation arising under a peremptory norm of general international law, the Community must: (a) not render aid or assistance to that State in maintaining that breach; (b) not recognise as lawful the situation created as a result of that breach; (c) cooperate with other States in order to bring an end to that breach through lawful means.
120. This set of obligations derives from Article 6 TEU in combination with Article 41 of the Articles on Responsibility.
121. If these obligations were recognised, the Community would still enjoy discretion in deciding what action to take against Israel. It seems to me however that the Community would be, at the very least, under an obligation to take the following steps: (a) raise the violations committed by Israel with the Association Council and require Israel to take immediate steps to stop the violation; (b) suspend any financial assistance that it grants to Israel under the Agreement; (c) suspend any tariff concessions that it grants to Israel under the Agreement.
167. If Israel commits a serious and persistent violation of human rights and the Community fails to take any action, it is arguable that the Community is in breach of its obligations under Article 2 of the Agreement in combinations with its obligations under Article 6(2) TEU, the general principle to respect fundamental rights and, its duty observe international law.
Summary 173. In summary my view is as follows: On the assumption that Israel’s actions under operation Cast Lead amount to a serious and persistent violation of human rights, i. ii. Israel is in breach of the human rights clause contained in Article 2 of the Agreement; The Community may take appropriate measures against Israel under the non-execution clause of Article 79(2) of the Agreement;
iv. It is arguable that the Community’s failure to take appropriate action against Israel amounts to a breach of its own obligations under the human rights clause of Article 2;
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