1. Introduction
The idea that trade agreements should be subject to human rights impact assessment has been gathering momentum in recent years. From the perspective of civil society organizations and other human rights advocates, human rights impact assessment of trade agreements is seen as a potential way of enhancing human rights compliance by states1 and embedding human rights considerations in the policymaking process. It is also seen as providing a platform for stakeholder participation and ensuring an evidential basis on which advocates and communities can engage in debates about trade policy, both generally and in relation to specific trading agreements.2
Box 1: What is a human rights impact assessment?
Human rights impact assessment is an emerging practice that aims to identify and analyse (and, in some cases, monitor over time) the impacts of different policies, programmes, projects and other interventions on the ability of people to enjoy their human rights. In other words, it is a tool intended to inform decision-making as to the best ways to mitigate negative impacts and enhance positive impacts.
Human rights impact assessments are used in various contexts,3 and methodologies vary depending on the specific aims of the exercise. They can take place in advance of the implementation of a project, policy or intervention (i.e. ex ante assessments). Or they can be conducted afterwards, for instance as part of a monitoring programme (i.e. ex post assessments). This research paper is concerned with the practice of ex ante human rights impact assessments.
The scrutiny presently applied to trade agreements by civil society organizations (and by human rights and anti-poverty campaigners in particular) is linked to a wider conversation taking place within UN agencies and international campaigning networks about how to distribute the benefits of globalization more fairly between different nations and different groups in society.4 A number of commentators have pointed to recent political events – the outcome of the referendum on EU membership in the UK, the election of Donald Trump as president of the US, and the rise of populist politics in Europe and elsewhere – as evidence of a backlash against globalization.5 The uncertainties arising from these developments have generated intense public interest in the content and implications of trade deals, particularly around the themes of preservation of environmental, health and safety, and social protections.6
This uncertainty and anxiety is helping to fuel calls for governments to do more to understand the social, environmental and human rights consequences of trade agreements before they sign them. Proponents of human rights impact assessment of trade agreements argue that human rights-based approaches have a number of analytical advantages over more established social and environmental approaches, not only in their ability to highlight important issues that would otherwise be obscured (such as freedom of expression and privacy), but in their ability to ‘[shift] the focus from aggregate welfare … [requiring] … impacts to be disaggregated to specifically focus on the most vulnerable, poor and otherwise disadvantaged whose rights are often the most likely to be violated’.7
Since the late 1990s,8 various UN treaty bodies and UN agencies (notably the Office of the United Nations High Commissioner for Human Rights – OHCHR) have called for human rights impact assessments to be carried out prior to the conclusion of trade agreements.9 Some technical guidance has been developed to encourage states in this direction. In 2011, the then UN Special Rapporteur on the right to food, Olivier De Schutter, published a set of guiding principles on human rights impact assessments of trade and investment agreements in a report to the UN Human Rights Council.10 More recently, the International Labour Organization (ILO) has published guidance focusing on the relationship between trade and labour.11 In a separate development, a specially constituted intergovernmental working group, operating pursuant to a mandate from the UN Human Rights Council,12 is presently exploring whether human rights impact assessment of trade agreements should be part of a future treaty regime on business and human rights.13
A further, high-profile multilateral initiative is encouraging states to reflect on the role of trade – not as a potential problem for human rights compliance, but as a driver of it. The UN’s Sustainable Development Goals (SDGs),14 adopted by the UN General Assembly in 2015, provide a key reference point for efforts by states, international organizations and non-governmental organizations (NGOs) to achieve greater alignment between trade, sustainable development and human rights objectives. The SDGs encourage states to tackle sustainable development in a holistic and integrated way, and in a manner that respects the need for balance between its economic, social and environmental aspects.15 Significant emphasis is placed on the role of trade in achieving these goals,16 which are underpinned by international human rights standards.17
Box 2: Human rights impact assessment of trade agreements and the Sustainable Development Goals (SDGs)
Although human rights impact assessment of trade agreements is not explicitly mentioned in the text of the SDGs themselves, it has potential relevance to the target set out at 17.10 of the SDGs to ‘promote a universal, rules-based, non-discriminatory and equitable multilateral trading system’, and at 17.14 to ‘enhance policy coherence for sustainable development’.18 In the latest edition of its handbook on sustainability impact assessments (SIAs) of trade agreements (see further Box 4 below), the European Commission expresses the expectation that consultants responsible for carrying out impact assessments of EU trade agreements will draw from the SDGs at the detailed analytical stage of each assessment,19 although decisions about how the SDGs should best be integrated into impact assessment methodologies in practice are left to individual assessments and practitioners.
Thus far, the calls for human rights impact assessment of trade agreements have been answered most decisively by the European Commission, which since 2012 has extended its sustainability impact assessment (SIA) processes to include human rights issues arising from proposed trade agreements.20 The EU is arguably a special case, with constitutional arrangements that may require human rights impact assessments of trade agreements as a matter of EU law.21
Nevertheless, other parties negotiating trade agreements may be encouraged to follow suit. In the UK, for instance, the secretary of state for international trade in July 2018 announced proposals for public and parliamentary scrutiny of future UK trade agreements following the withdrawal of the UK from the EU. This will include pre-negotiation public consultation and a ‘scoping assessment’, the results of which would be made publicly available. The creation of a new Strategic Trade Advisory Group is also envisaged, which ‘will be made up of 14 experts drawn from different groups such as business, civil society and unions, with an interest in our future trading relationships and their impact on the UK – from the workplace to consumer choice and the environment’.22
The relationship between trade agreements and human rights is, however, multifaceted and complex. Understanding and addressing these complexities is made all the more difficult at present by the fact that the political debate surrounding trade, globalization and human rights has become extremely polarized. Stark differences of opinion can be found – for instance, between representatives of government and business on the one hand, and many NGOs on the other – as to whether trade liberalization is good or bad for human rights. At a more structural level, international lawyers continue to debate whether human rights law and trade law enjoy some synergies, or whether they are fundamentally opposed.23
With respect to the balance of risks and benefits, it is certainly arguable that trade agreements can have positive effects on human rights (and a number of the SDGs are predicated upon this idea), for example by reducing prices and increasing the availability of basic goods and services. Indeed, in the area of agriculture, the poorest countries can benefit from trade agreements that offer them access to export markets, and that stop developed countries from subsidizing commodities that developing countries also produce (thereby depressing world prices and, correspondingly, the latter’s export earnings).24
On the other hand, trade liberalizing measures can involve costs to state parties, in terms of loss of employment (due to foreign competition), loss of tariff revenues (hence reducing financial resources for social security, poverty relief and development) or, perhaps, social and political disruption.25 Particular concerns have been raised about the implications of patent provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights (known as the ‘TRIPs’ Agreement) for access to essential medicines (potentially engaging the right to health),26 and for agricultural production and research (potentially engaging the right to food).27
The World Trade Organization (WTO) system contains a number of flexibilities which can be used to help resolve the tensions that might otherwise exist between trading commitments and the human rights obligations of the states concerned. These flexibilities – replicated in free-trade agreements (FTAs) – may include safeguard measures, anti-dumping duties and countervailing duties, and ultimately rights of renegotiation. In the WTO system, developing-country trading partners have the benefit of additional flexibility, for instance to impose import restrictions to protect infant industries or subsidize vulnerable producers. In addition, a number of exceptions in the WTO system (again, the model for most regional trade agreements) are potentially relevant to the ability of trading partners to respond to emerging human rights-related challenges, including exceptions relating to ‘public morals’28 and also measures necessary to protect human life and human health.29
However, the range of human rights that could potentially be engaged by the economic and social changes that trade agreements may bring about, together with the limitations in the way in which some exceptions have been interpreted,30 means that these flexibilities may not correspond exactly to future needs. The central purpose of ex ante human rights impact assessment in this context, therefore, is to reduce the risks of future inconsistencies between trade-related and human rights-related goals by providing decision-makers and negotiators with a tool for anticipating future adverse scenarios and ensuring that they are addressed, either in the negotiated text itself (e.g. through enhanced flexibility in some areas or through arrangements for subsequent monitoring), or through appropriate flanking measures.
In practice, though, human rights impact assessments are not yet fulfilling this need. This research paper is both an exploration of why this might be so, and a re-evaluation of the role and prospects of ex ante human rights impact assessments of trade agreements in light of the challenges that have been encountered thus far. While it is by no means comprehensive as a survey of existing state practice (not least because of its focus on EU policy), it is intended to help reframe and reinvigorate the discussion about the role and usefulness of these processes at a time when trade agreements are increasingly the subject of public debate.
The paper is structured as follows. Chapter 2 reviews some notable attempts to carry out human rights impact assessments of trade proposals thus far, both by the European Commission (in relation to proposals for new agreements between the EU and third-party states) and further afield (by a range of actors including national human rights institutions, civil society organizations, UN agencies and academic researchers). Chapter 3 outlines the various legal, political, methodological and process-related challenges that frequently arise in respect of human rights impact assessment of trade agreements. It lays out a number of options that states could consider for strengthening these processes. It also points out the fundamental need for greater realism among policymakers and stakeholders about what ex ante assessments can achieve on their own. Chapter 4 offers a preliminary exploration of the different ways in which ex ante human rights processes might be better integrated into longer-term human rights risk management strategies by the states concerned, either pursuant to the terms of given trade agreements themselves, or through complementary processes. Finally, Chapter 5 concludes that it is perhaps with respect to the shaping of effective mechanisms for ongoing monitoring of human rights-related risks arising from or connected with trade agreements that ex ante human rights impact assessments have potentially the most valuable role to play. Ex ante human rights impact assessments are no substitute for ongoing efforts by states to identify and respond to human rights-related risks as they emerge; such efforts ideally should be based on regular and systematic ex post monitoring of human rights risks by trading partners. The chapter recommends that ex ante human rights impact assessments should be designed and implemented with this in mind.
1 Hunt, P. and MacNaughton, G. (2006), Impact Assessments, Poverty and Human Rights: A Case Study Using The Right to the Highest Attainable Standard of Health, Colchester: World Health Organization, p. 13, http://www.who.int/hhr/Series_6_Impact%20Assessments_Hunt_MacNaughton1.pdf (accessed 9 Jan. 2019).
2 Bakker, S., Van Den Berg, M., Duzenli, D. and Radstaake, M. (2009), ‘Human Rights Impact Assessment in Practice: The Case of the Health Rights of Women Assessment Instrument (HeRWAI)’, Journal of Human Rights Practice, 1(3): pp. 436–58, at p. 442, doi: https://doi.org/10.1093/jhuman/hup017 (accessed 9 Jan. 2019). See also Harrison, J. (2011), ‘Human Rights Measurement: Reflections on the Current Practice and Future Potential of Human Rights Impact Assessment’, Journal of Human Rights Practice, 3(2): pp. 162–87, at pp. 164–67, doi: https://doi.org/10.1093/jhuman/hur011 (accessed 9 Jan. 2019); and Kirkpatrick, C. and George, C. (2006), ‘Methodological issues in the impact assessment of trade policy: experience from the European Commission’s Sustainability Impact Assessment (SIA) programme’, Impact Assessment and Project Appraisal, 24(4), pp. 325–34, at p. 327, doi: https://doi.org/10.3152/147154606781765110 (accessed 9 Jan. 2019).
3 Human rights impact assessments are used, for example, by: (a) governments as a policy tool to help predict the likely impacts of new policy proposals for the enjoyment of human rights generally and/or by certain groups in society (e.g. ex ante studies carried out as part of a wider regulatory impact assessment); (b) companies (e.g. as part of human rights due diligence exercises carried out in advance of a new investment or business relationship); (c) international financial institutions as part of due diligence to identify human rights risks related to projects seeking finance; (d) development agencies wishing to measure the human rights impacts of their development funding and programmes within recipient countries; and (e) non-governmental organizations in various contexts, including with respect to new governmental policy or regulatory proposals, in support of their human rights advocacy work on behalf of affected communities and stakeholders.
4 On the challenges involved in achieving a fairer distribution of the benefits of globalization, see World Commission on the Social Dimension of Globalization (2004), A Fair Globalization: Creating Opportunities for All, Geneva: International Labour Organization, www.ilo.org/public/english/wcsdg/docs/report.pdf (accessed 8 Jan. 2019).
5 Stiglitz, J. (2017), Globalisation and its Discontents Revisited: Anti-Globalisation in the Era of Trump, New York: W. W. Norton & Company; Saval, N. (2017), ‘Globalisation: the rise and fall of an idea that swept the world’, Guardian, 14 July 2017, https://www.theguardian.com/world/2017/jul/14/globalisation-the-rise-and-fall-of-an-idea-that-swept-the-world (accessed 9 Jan. 2019); and Odell, M. (2016), ‘Globalisation and rapid changes sparked populist backlash, says Obama’, Financial Times, 15 November 2016, https://www.ft.com/content/cdab5192-ab55-11e6-9cb3-bb8207902122 (accessed 9 Jan. 2019).
6 Monbiot, G. (2017), ‘Chlorinated chicken? Yes, we really can have too much trade’, Guardian, 25 July 2017, https://www.theguardian.com/commentisfree/2017/jul/25/chlorinated-chicken-trade-britain-us-food-standards-globalisation (accessed 9 Jan. 2019).
7 Harrison (2011), ‘Human Rights Measurement: Reflections on the Current Practice and Future Potential of Human Rights Impact Assessment’, p. 167.
8 Ibid., p. 165.
9 Since 2003, the Office of the United Nations High Commissioner for Human Rights (OHCHR) has on several occasions recommended the use of human rights impact assessment techniques ‘to gauge the extent to which trade liberalization can promote and protect human rights’. See OHCHR (2003), Report of the High Commissioner for Human Rights on Human Rights, Trade and Investment, UN Doc. E/CN.4/Sub.2/2003/9, Geneva: OHCHR, at para 63, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G03/148/47/PDF/G0314847.pdf?OpenElement (accessed 9 Jan. 2019). See also Economic and Social Council (2017), General Comment No. 24 (2017) on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, UN Doc. E/C.12/GC/24, Geneva: Economic and Social Council, at para 13, p. 32, http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=4slQ6QSmlBEDzFEovLCuW1a0Szab0oXTdImnsJZZVQcIMOuuG4TpS9jwIh CJcXiuZ1yrkMD%2FSj8YF%2BSXo4mYx7Y%2F3L3zvM2zSUbw6ujlnCawQrJx3hlK8Odka6DUwG3Y (accessed 9 Jan. 2019).
10 UN General Assembly (2011), Report of the Special Rapporteur on the right to food, Olivier De Schutter: Guiding principles on human rights impact assessments of trade and investment agreements, UN Doc. A/HRC/19/59/Add.5, Geneva: Human Rights Committee, https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC-19-59-Add5_en.pdf (accessed 9 Jan. 2019) (‘2011 De Schutter Principles’). These Guiding Principles are not, however, legally binding, and, while they were prepared following a certain amount of stakeholder involvement and input, the level of consultation with different interest groups was not as deep and extensive as, say, the similarly named UN Guiding Principles on Business and Human Rights and so therefore may not reflect the same degree of consensus.
11 International Labour Organization (ILO) (2017), Handbook on Assessment of Labour Provisions in Trade and Investment Arrangements, Geneva: ILO, https://www.ilo.org/wcmsp5/groups/public/–dgreports/–inst/documents/publication/wcms_564702.pdf (accessed 9 Jan. 2019). For another related initiative, see United Nations Development Programme (UNDP) (2012), HUMAN DEVELOPMENT IMPACT ASSESSMENT OF TRADE POLICY: A Toolkit, New York: UNDP, http://www.undp.org/content/dam/undp/library/Poverty%20Reduction/Trade%2C%20Intellectual%20Property%20and%20Migration/HUMAN%20DEVELOPMENT%20IMPACT-Trade%20policy%20toolkit.pdf (accessed 7 Nov. 2018).
12 General Assembly (2014), Resolution adopted by the Human Rights Council: 26/9 Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, UN Doc. A/HRC/Res/26/9, Geneva: Human Rights Council, https://undocs.org/A/HRC/RES/26/9 (accessed 9 Jan. 2019).
13 See further United Nations Human Rights Council (2018), ‘Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights’, https://www.ohchr.org/en/hrbodies/hrc/wgtranscorp/pages/igwgontnc.aspx (accessed 9 Jan. 2019).
14 The Sustainable Development Goals refer to the 17 goals, with supporting targets, adopted by the UN General Assembly on 25 September 2015 as part of the 2030 Agenda for Sustainable Development. See General Assembly (2015), Resolution 70/1: Transforming our world: the 2030 Agenda for Sustainable Development, UN Doc. A/Res/70/1, New York: UN General Assembly, http://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_RES_70_1_E.pdf (accessed 9 Jan. 2019).
15 Ibid., pp. 1–2.
16 See further World Trade Organization (WTO) (2018), Mainstreaming trade to attain the Sustainable Development Goals, Geneva: WTO, https://www.wto.org/english/res_e/publications_e/sdg_e.htm (accessed 9 Jan. 2019).
17 See Danish Institute for Human Rights (2017), Human Rights and the SDGs: Pursuing Synergies, https://www.universal-rights.org/urg-policy-reports/human-rights-sustainable-development-goals-pursuing-synergies/. However, for a more critical view, see Williams, C. and Blaiklock, A. (2016), ‘Human Rights Discourse in the Sustainable Development Agenda Avoids Obligations and Entitlements – Comment on “Rights Language in the Sustainable Development Agenda: Has Right to Health Discourse and Norms Shaped Health Goals?”’, International Journal of Health Policy and Management, 5(5), pp. 387–90, doi: 10.15171/IJHPM.2016.29 (accessed 9 Jan. 2019).
18 These ambitions are set out under Goal 17: ‘Strengthen the means of implementation and revitalize the Global Partnership for Sustainable Development’.
19 See European Commission (2016), Handbook for trade sustainability impact assessment (2nd ed.), Brussels: European Commission, p. 17, http://ec.europa.eu/trade/policy/policy-making/analysis/policy-evaluati… (accessed 9 Jan. 2019).
20 See Box 4 below.
21 Bürgi Bonanomi, E. (2017), ‘Measuring Human Rights Impacts of Trade Agreements – Ideas for Improving the Methodology: Comparing the European Union’s Sustainability Impact Assessment Practice and Methodology with Human Rights Impact Assessment Methodology’, Journal of Human Rights Practice, 9(3): pp. 481–503, at pp. 484–85, https://doi.org/10.1093/jhuman/huy001 (accessed 9 Jan. 2019); Case C-263/14, Parliament v Council, ECLI:EU:C:2016:435, para 47; and Case C-104/16, Council v Front Polisario, AG Opinion (13 September 2016), ECLI:EU:C:2016:677, paras 254–69. See also the European Ombudsman’s finding of ‘maladministration’ in European Ombudsman (2014), ‘Decision in case 1409/2014/MHZ on the European Commission’s failure to carry out a prior human rights impact assessment of the EU-Vietnam free trade agreement’, para 11, https://www.ombudsman.europa.eu/en/decision/en/64308 (accessed 7 Nov. 2018).
22 UK Department of International Trade (2018), ‘Liam Fox delivers Parliament and the public a central role in post-Brexit UK trade agreements’, https://www.gov.uk/government/news/liam-fox-delivers-parliament-and-the-public-a-central-role-in-post-brexit-uk-trade-agreements (accessed 7 Nov. 2018). For an NGO view of how social, environmental and human rights impact assessment processes could be built into UK trade policy post-Brexit, see Amnesty International UK (2018), The Trade Bill Briefing, London: Amnesty International UK, https://publications.parliament.uk/pa/cm201719/cmpublic/trade/memo/tb17.pdf (accessed 7 Nov. 2018). See also Trade Justice Movement (undated), ‘Democracy and transparency in trade matters to us all’, https://www.tjm.org.uk/trade-issues/democracy-and-transparency (accessed 7 Nov. 2018).
23 Ibrahim, A. (2013), ‘International Trade and Human Rights: An Unfinished Debate’, German Law Journal, 14(1), pp. 321–37 (accessed 9 Jan. 2019). For further perspectives on the relationship between human rights law and international trade law, see Petersmann, E. (2012), ‘Human Rights and International Economic Law’, Trade, Law and Development, 4(2), pp. 283–314, doi: https://doi.org/10.1093/ejil/chn041 (accessed 9 Jan. 2019); Bartels, L. (2009), ‘Trade and Human Rights’ in Bethlehem, D., Van Damme, I., McRae, D. and Neufeld, R. (eds) (2009), The Oxford Handbook of International Trade Law, New York and Oxford: Oxford University Press, pp. 583–92; and Joseph, S. (2011), Blame it on the WTO? A Human Rights Critique, New York and Oxford: Oxford University Press.
24 World Bank (2005), World Development Report 2006: Equity and Development, New York: World Bank/Oxford University Press, p. 212, http://documents.worldbank.org/curated/en/435331468127174418/pdf/322040World0Development0Report02006.pdf (accessed 7 Nov. 2018).
25 Bartels (2009), ‘Trade and Human Rights’, p. 579.
26 Ibid., p. 592. Also Bartels, L. (2017), ‘International Economic Law and Human Rights: Friends, Enemies or Frenemies?’ in European Yearbook of International Economic Law, 7, pp. 485–492, at p. 485, doi: https://doi.org/10.1007/978-3-319-29215-1_19 (accessed 9 Jan. 2019).
27 Bartels (2009), ‘Trade and Human Rights’, p. 592.
28 See GATT Art XX(a) and GATS Art XIV(a).
29 See GATT Art XX(b) and GATS Art XIV(b). See further Bartels (2009), ‘Trade and Human Rights’, pp. 582–85.
30 Ibid., p. 585.