The EU’s policy is to include the clause in political framework agreements, to which free trade agreements should be linked. When there is no such framework agreement, the clause forms part of the agreement containing the free trade provisions. The latter agreement may be either a free trade agreement or a more comprehensive one including free trade provisions alongside provisions on cooperation in various areas (such as association agreements). The clause is also present in some agreements which deal with trade aspects (such as trade cooperation), but do not include tariff liberalisation (and therefore are not free trade agreements). Some earlier free trade agreements – such as the Association Agreement with Turkey (1963), the Agreement on a Customs Union with Andorra (1990), and the Agreement on the European Economic Area (EEA) with Iceland, Lichtenstein and Norway (1993) – do not contain an HRC, since the clause was gradually introduced in the 1990s. The EEA agreement does, however, refer to human rights in its first recital.
When the clause is present in a framework agreement, a linkage clause in the trade agreement has the legal effect of making the HRC applicable to this as well. A typical linkage clause is the one found in the trade agreement with South Korea:
‘Article 2. The present Agreement shall be an integral part of the overall bilateral relations as governed by the Framework Agreement. It constitutes a specific Agreement giving effect to the trade provisions within the meaning of the Framework Agreement’.
The linkage clause can also refer explicitly to the essential elements clause, for example in the Economic Partnership Agreement (EPA) with the Cariforum States (2008):
‘Article 2. This Agreement is based on the Fundamental Principles as well as the Essential and Fundamental Elements of the Cotonou Agreement, as set out in Articles 2 and 9, respectively, of the Cotonou Agreement’.
Other EPAs (‘interim EPAs’, but also the Economic Partnership Agreement with the East African Community (EU-EAC EPA)) do not explicitly refer to the HRC in the Cotonou Agreement. However they endorse the non-execution clause in this agreement (its Article 96), which can be construed as implicit recognition of the HRC.