Guillaume François Larouche

There are several reasons for selecting human rights and international trade and investment as the focus of a comparative analysis. First, because they are central to the EU political project (European Commission 2019, 4-5). Human rights have been a cornerstone of the European identity and purpose since the end of World War II (Treaty on European Union, Preamble, Article 2; European Convention on Human Rights 1950); while international trade and investment underpin the European internal market and liberalized economy, which now heavily relies on rules-based economic globalization (trade and investment are “a means to [...] export [the European values across the world]” (European Commission 2019, 16-17)). Second, these two regulatory areas are privileged tools of the EU to export concepts and practices of the rule of law; through the International Criminal Court (ICC) and Multilateral Investment Court (MIC), the EU is promoting “international rule of law institutions” (Romano 2022, 47 & 1999). Third, because these areas are highly technical, European lawyers are well positioned to export concepts and practices of the rule of law. Besides, this is consistent with the Commission’s strategy of responding to the dissensus surrounding its core values by reaching consensus in a “technocratic” manner, setting aside politics (Dinan 2017, 79).

In the regulatory area of human rights, the EU recently launched its Global Europe Human Rights and Democracy (2021) programme which aims to promote European values around the world, including fundamental freedoms, democracy, and the rule of law (Annual Report on Human Rights and Democracy in the World 2021). As part of this initiative, the High Representative/Vice- President of the European Commission, Josep Borrell, has made it clear that upholding the rule of law through participation in the global fight against impunity for the most serious crimes under international law (Annual Report on Human Rights and Democracy in the World 2021, 125-30) and support for the authority of the ICC (and other international criminal, ad hoc tribunals and truth and reconciliation commissions) are essential for the EU: “[t]he EU calls on all States to cooperate with the ICC and abide by their commitments to uphold the rule of law, whether at the ICC or in their national courts” (Council of the EU 2021). To this end, the EU is providing political, diplomatic, and financial support to the ICC, especially in the form of capacity building tools, and technical and regulatory assistance. The main capacity building activities offered by the EU include seminars, events, and trainings “aimed at fostering cooperation, sharing expertise and building national capacity” (Annual Report on Human Rights and Democracy in the World 2021, 129). Technical and regulatory assistance provided by the EU includes the development of legal tools for countries wishing to implement the Rome Statute to assist their legal professionals working on major international crimes, as well as the placement of legal professionals from ‘situation countries’ in the ICC Visiting Professionals Programme (Annual Report on Human Rights and Democracy in the World 2021, 129).

In the area of trade and investment, the EU has made clear its vision that trade and investment are inseparable from its core values and principles through its Trade for All strategy (2015). Recently, in response to the contestation and dissent over the EU-US negotiations around the proposed Transatlantic Trade and Investment Partnership, the EU modified its approach and policy regarding dispute settlement in international investment (Coman 2022). After having traditionally supported the investor-state dispute settlement (ISDS) mechanism, the EU is responding to criticism and rejection of ISDS (Miles 2013) by proposing a new institutionalized dispute-settlement mechanism, the Investment Court System. After having implemented such ICS in its recent investment agreements with third States (e.g. CETA, EU-Vietnam , and EU-Singapore), the EU now militates for the implementation of a MIC through its participation to the UNCITRAL Working Group III on ISDS Reform. This proposal is a direct response to mounting dissensus over the international regime for the protection and promotion of foreign investment, in which investors have sued states, resulting in payouts of millions (and even billions) of dollars from the losing states (see e.g., Yukos Universal v Russia, 2005). Through their participation in the Working Group III, European lawyers are using socialisation instruments to influence other countries (including allies) to follow the EU approach. For example, they are using capacity-building activities and organize meetings and presentations with stakeholders to promote EU policy (European Commission, n.d.).