Enforcing trade and sustainable development provisions in the EU’s agreements with third countries: towards an implied duty?

Abstract

The provisions on trade and sustainable development in the EU’s trade agreements with third countries are understood to be largely political and their enforcement by the Union is, therefore, considered discretionary. The article revisits this long-established doctrine and demonstrates why it is not only detrimental to achieving sustainable development objectives, but also legally outdated. Building upon the analysis of the post-Lisbon architecture of EU law in general and Opinion 2/15 of the Court of Justice in particular, this contribution demonstrates that there might be an implied duty of the Union to enforce the provisions on trade and sustainable development found in the EU’s agreements with third countries. This article theorises this implied duty chiefly by means of teleological interpretation of the primary law of the Union but also based on the growing role of trade and sustainable development commitments in the EU’s trade agreements, and some notable novelties found in those recently concluded. The piece also looks into the content of this duty, the possible consequences it might entail, and how it fits into the broader picture of the EU’s attitude towards trade and sustainable development.