| THE PROCEDURE FOR THE ENTRY INTO FORCE OF
THE EVENTUAL MERCOSUR-EUROPEAN UNION AGREEMENT
por Félix Peña
Is there any real possibility that the negotiations
for the Association Agreement between Mercosur and the European Union
could be concluded this year and that the path leading to its entry into
force could then begin?
There are still some doubts in this regard. These
doubts do not only relate to the actual signing of the agreement and the
start of the formal process of its entry into force, but to the effects
that such entry into force could have on Mercosur itself, depending on
the procedure for its parliamentary ratification.
With respect to the latter, it is often pointed out
that the Mercosur countries have agreed to a bilateral validity process,
whereby the agreement does not apply to the country that has not ratified
it, or until it does not ratify it.
Taking into account the text of the Treaty of Asuncion,
it may be legally questionable that its validity could be achieved without
the agreement having been ratified by the four member countries.
But if this same procedure were eventually applied
to the Mercosur-EU Agreement, wouldn't the Mercosur customs union be transformed
into a free trade zone and wouldn't the trade preferences agreed in the
Treaty of Asuncion be diluted? This is not a minor issue, not only because
of its legal implications, but also because of its economic and, above
all, political consequences.
The Association Agreement between Mercosur and the European Union could
be entering its final stage. Is this really so? Is there any certainty
that the negotiations will be concluded this year and that the path leading
to the entry into force of the agreement could then begin? There are still
many doubts in this regard.
In this opportunity, we will address the factors underpinning these doubts.
They do not only refer to the eventual signing of the agreement and the
formal initiation of the process of its entry into force. They also refer
to the effects that such entry into force could have on Mercosur itself,
depending on the procedure for its parliamentary ratification.
In fact, a procedure has been anticipated that would mean that the entry
into force of the agreement would be effective, in the case of Mercosur
members, as soon as a country approves it in its national parliament,
without the need for it to have been approved by the parliaments of the
other countries as well. The effects of the agreement would then be limited
to the member countries whose parliaments had approved it, but not to
all. Such a situation would leave the country or countries that do not
ratify it out of the agreement. Potentially, this situation could be prolonged
for an indefinite period of time.
This is an issue that we have previously discussed (see, for example,
our newsletter of March 2020). At that time, we pointed out that, after
the signature of the agreement, the next step in Mercosur would be its
approval by the respective national parliaments and its subsequent ratification.
We also added that once signed and ratified by the four Mercosur member
countries and the EU, the agreement would enter into force.
Taking into account the text of the Treaty of Asuncion, it could be legally
objectionable that such validity is achieved without the agreement having
been ratified by the four member countries. This would seem to be the
case if we take into account the provisions of Article 1 ("common
external tariff") and Article 2 ("reciprocity of rights and
obligations"), because of the fact that Mercosur is a customs union
and because of the role of the common external tariff as a key instrument
At that time, we also pointed out other possible scenarios regarding
the future of the formal relations between Mercosur and the EU, depending
on the outcome of the approval process and the effective entry into force
of the bi-regional agreement. These are scenarios with clear implications
for the existential dimension of Mercosur (why the member countries decided
to partner) and in its methodological dimension (how the joint work between
the associated countries is developed). There are also clear political
and economic implications for the future relations with the EU and among
the Mercosur countries themselves.
The first possible scenario is that the remaining steps are taken as planned
and, therefore, the agreement that is finally concluded enters into full
force in all Mercosur countries.
In the second scenario, one or more Mercosur countries do not sign or
ratify the agreement because they do not accept the terms concluded in
the negotiation process. This could also happen on the European side and,
in this case, the bi-regional agreement would not enter into force. But
in the case of Mercosur, could the agreement enter into force if, for
example, only one of the member countries decided not to sign or ratify
As far as ratification is concerned - but not with regard to the signing-
it is often pointed out that the Mercosur countries have agreed on a process
of bilateral validity, that is to say that the agreement would not apply
to a country that has not ratified it, or until it decides not to ratify
it. Although the actual text of this agreement has not yet been published,
this so-called bilateralism could have consequences that go far beyond
the bi-regional agreement and even penetrate deeply into the existential
dimension of Mercosur and the relations between its members.
Although the bi-regional agreement with the EU has very different scopes,
it is often pointed out that the bilateral entry into force of a free
trade agreement has precedents in Mercosur. It is included, for example,
in the free trade agreement between Mercosur and Israel and in the agreement
concluded between Mercosur and EFTA.
But if the same procedure were applied to the Mercosur-EU agreement,
wouldn't the Mercosur customs union be transformed into a free trade zone
and wouldn't the trade preferences agreed in the Treaty of Asunción
be diluted? This is not a minor issue, not only because of its legal implications,
but also because of its economic and, above all, political consequences.
The topics mentioned in the preceding paragraphs are related to those
previously addressed in our newsletters of the months of July,
September and December of 2019 and February,
March and August of 2020 (see www.felixpena.com.ar).
- Alvarez, María Victoria, "El acuerdo comercial entre
el Mercosur y la Unión Europea. Su proceso de ratificación
y el mito de Sísifo", Foreign Affairs Latinoamérica,
vol.21, número 2, Abril-Junio 2021, ps.46-52. Disponible en www.fal.itam.mx.
- CEPAL, "Perspectivas del Comercio Internacional de América
Latina y el Caribe. El desafío de dinamizar las exportaciones
manufactureras", CEPAL Naciones Unidas, Santiago de Chile 2022.
- INTAL-BID, "Conocimiento de Exportación: la era de los
servicios en América Latina", Revista Integración
y Comercio, año 26, número 48, BsAs diciembre 2022.
- Ghemawat, Pankaj, "The Laws of Globalization and Business Applications",
Cambridge University Press, Cambridge - New York - 2017.
- Ghemawat, Pankaj, "Redefining Global Strategy. Crossing Borders
in a World Where Differences Still Matter", Harvard Business Review
Press, Boston 2018.
- Ghemawat, Pankaj, "The New Global Road Map. Ensuring Strategies
for Turbulent Times", Harvard Business Review Press, Boston 2018.
- Jikun Huang, "The multilateral trading system in the kernel of
China's food secutiry", East Asia Forum, 24 mar 2023, en www.eastasiaforum.org.
- Johnston, M.D., "The Artificial Intelligence Disruption. How
to Adapt and Suceed in the Age of Intelligent Machines", e-book
- Krastev, Ivan, "After Europe", University of Pennsylvania
Press, Philadelphia 2017.
- Malamud, Andrés, "Assessing the political dialogue and
cooperation pillar of European Union and Mercosur Association Agreement
towards a bi-regional strategic partnership", European Parliament,
- Marina Yue Zhang, "The highly charged geopolitics of lithium",
East Asia Forum, 28 feb 2023, en www.eastasiaforum.org.
- Monika Chaudhary, "Can India's lithium reserves secure its energy
independence?, en East Asia Forum, 14 mar 2023, en www.eastasiaforum.org.
- Peña, Félix, "Un acuerdo bi-regional que requiere
aún entrar en vigencia", Suplemento Comercio Exterior del
diario La Nación, 16 de febrero 2023, página 3.
- Read, Leonard, "Deeper Than You Think", Digital Edition
-Ludwig von Mises Institute, Hudson, New York 2012.
- Read, Leonard, "The Collected Works of Leonard Read", Foundation
for Economic Education (FEE), Atlanta-Georgia 2017.
- Susskind, Jamie, "The Digital Republic. On Freedom and Democrary
in the 21st Century", Penguin Books, New York - London 2022.
- Tamas Meszaros, "A "protectionist" United States still
key to East Asia's economy", East Asia Forum, 21 mar, 2023, en
- Timmer, Peter, "Despite the odds, multilateral cooperation has
helped secure food security", East Asia Forum, 5 mar 2023, en www.eastasiaforum.org.
- Van Der Kiste, John, "The End of the Habsburgs. The Decline and
Fall of the Austrian Monarchy", Fonthill 2019.
- Yuqun Shao, Strategic competition casts doubt on One China policy",
en East Asia Forum, 24 mar 2023, en www.eastasiaforum.org.
- Zhong Xiang Zhang, "From China's climate commitments to action",
East Asia Forum, 25 mar 2023, en www.eastasiaforum.org.
Félix Peña es Director
del Instituto de Comercio Internacional de la Fundación ICBC; Director
de la Maestría en Relaciones Comerciales Internacionales de la
Universidad Nacional de Tres de Febrero (UNTREF); Miembro del Comité
Ejecutivo del Consejo Argentino para las Relaciones Internacionales (CARI).
Miembro del Brains Trust del Evian Group. Ampliar