Treaty-Making by Afterthought

This article examines the Joint Instrument relating to the EU-Mercosur Association Agreement (AA). EU free trade agreements (FTAs) are increasingly met with political opposition. Generally, the mantra that free trade benefits all is under pressure. To solve the ratification difficulties that EU trade agreements, the EU Commission has started to deploy a new strategy, which we call treaty-making by afterthought. The EU-Mercosur Joint Instrument is the most recent afterthought. The EU-Mercosur Joint Instrument is – on its surface – a text intended to clarify the intentions of all the parties to the trade agreement/trade part of the overall AA, namely the Mercosur countries and the European Union – not the Member States, which are not party to the FTA/trade part. It is available only in an unofficial (leaked) version of February 2023. Examining this version and its adoption process, this article concludes that the EUMercosur Joint Instrument substantively amounts to a modification of the trade part of the EU-Mercosur deal. Therefore, it should form part and parcel of the FTA agreement and expressly and transparently add to and amend the scope and content of the FTA. For this, it would have to be integrated into the set of »instruments of international law« by making part of the further conclusion process, including legal scrubbing, etc. This would also ensure that it is adopted pursuant to the ordinary procedures of treaty-making involving parliaments. What is further, the focus of the Joint Instrument is on non-trade measures. While it does not bring the EU-Mercosur deal in line with the EU's Green Deal it strengthens and expands sustainability commitments. For this reason, it requires involvement of Member States and hence also national parliaments. The latter also appears to be the only probable way of avoiding ratification difficulties of the AA.