2. Putting Ideas into Practice
The past two decades have seen a number of important developments in the field of human rights impact assessment of trade agreements, although take-up by states outside the EU remains very low and practice is still fragmented. The rapid development of EU policy and practice in this area is due to a unique set of legal and political drivers. Also significant in shaping EU practice has been ongoing campaigning by civil society organizations (focusing in particular on how to render sustainability impact assessment processes more relevant to decision-making and improve the quality of stakeholder consultation),31 and the greater influence given to the European Parliament following the adoption of the Treaty of Lisbon in 2007.32
The past two decades have seen a number of important developments in the field of human rights impact assessment of trade agreements, although take-up by states outside the EU remains very low and practice is still fragmented.
Box 3: Ex ante and ex post human rights impact assessments
While the focus of this research paper is on ex ante processes, it is worth noting the related practice of ex post human rights impact assessment of trade agreements, in which an assessment is made of the human rights implications of economic, social or environmental impacts that have occurred in fact. These studies are conducted after a period of ‘bedding in’ of a new trade agreement and can take place on an ad hoc basis (e.g. studies carried out by NGOs, national human rights institutions or academics) or pursuant to a special arrangement (e.g. under treaty) between state trading partners, or pursuant to the terms of the trade agreement itself (e.g. by a monitoring mechanism established under the trade agreement to assist with its implementation).
For instance, since 2012, Canada and Colombia have carried out periodic reviews of human rights issues raised by the Canada–Colombia free-trade agreement. These reviews are conducted pursuant to a special treaty between the trading partners.33 Under this agreement, each party agrees to conduct a human rights impact assessment in relation to the effects of the agreement not only in its own territory but also in the territory of the other party.34 The practical implementation of this legal commitment has been criticized, however, for its inadequate description of the relevant human rights issues, for failures to engage sufficiently with relevant stakeholders and, in more recent assessments, for a failure to provide clear explanations of the causal links between human rights issues and the relevant trade measures.35
2.1 Development of human rights impact assessment of trade agreements (non-EU)
Outside the EU, human rights impact assessments of trade agreements have largely been initiated not by states but by other actors, notably national human rights institutions, civil society organizations, academic institutions and also (though to a much more limited extent) UN agencies. The lack of a clear, tried-and-tested methodology proved a significant challenge for these early efforts, such as a pioneering attempt in 2006 by the National Human Rights Commission of Thailand to conduct an assessment of the proposed Thailand–US FTA.36 This assessment was done in response to complaints by Thai civil society organizations about some specific aspects of the proposed agreement, such as access to medicines and the use of genetically modified organisms in agriculture.37 However, the resulting document, which appears to have been shared only with a few UN agencies and civil society actors,38 reportedly made ‘only sporadic reference’ to human rights.39
In 2009 an unofficial, ex ante impact assessment of the effect of the intellectual property provisions of the proposed Central America-Dominican Republic-United States Free Trade Agreement (CAFTA-DR) on access to medicines in Costa Rica was conducted by Simon Walker.40 Walker used the opportunity to propose a more rigorous, step-by-step methodology for conducting these kinds of processes, with built-in opportunities for stakeholder engagement. The methodology consisted of seven steps:
- Step 1: Preparation
- Step 2: Screening
- Step 3: Scoping
- Step 4: Analysis
- Step 5: Conclusions and recommendations
- Step 6: Publication and reporting
- Step 7: Monitoring and review41
This step-by step process, or variations upon it,42 has been widely adopted. There is now a high degree of consensus, across a broad range of stakeholders, of its value as a ‘good practice’ framework.43 Its influence can be seen in advocacy work by civil society organizations since that time, such as the 2010 Scoping Study on Designing a Human Rights Impact Assessment for the Pacific Agreement on Closer Economic Relations (PACER-Plus) between Pacific island countries and Australia and New Zealand, commissioned by the Australian Council for International Development and the Institute for Human Security;44 and the 2011 Right to Food Impact Assessment of the proposed EU–India FTA commissioned by MISEREOR and other civil society actors.45
This assessment analysed the potential impacts (both positive and negative) that likely CFTA provisions could have on those groups identified as most vulnerable, namely women, young people and rural food producers.
The ex ante assessment of the Africa Continental Free Trade Area (CFTA), commissioned in 2015 by the UN Economic Commission for Africa, the Friedrich Ebert Stiftung Foundation and OHCHR,46 deserves particular mention for its ambitious scope (i.e. in terms of the number of countries covered and the range of human rights included in the assessment) and for what it potentially reveals about current thinking. This assessment analysed the potential impacts (both positive and negative) that likely CFTA provisions could have on those groups identified as most vulnerable, namely women, young people and rural food producers. It focused on the human rights identified at the screening stage as being most pressing in the African trading context (i.e. the right to an adequate standard of living, the right to work and social security, the right to food, and women’s rights).47 And it scrutinized three economic sectors: informal cross-border trade, the agricultural sector (in relation to the right to food) and the agro-manufacturing sector (in relation to the right to work).48 Beyond this, the assessment looked at whether the negotiating process was human rights-consistent (i.e. whether the relevant stakeholders were invited to participate).49
In their final report, the assessment practitioners were careful to explain the limits to what such an exercise could achieve, identifying as particularly difficult the problem of showing a causal link between a trade agreement and social and economic changes (an issue taken up further in the next chapter of this research paper). The assessment process was undertaken, as they put it:
… with the awareness that pathways of cause and effect are not easily discernable: establishing a causal link between a specific trade intervention and a human rights outcome is a difficult task. For these reasons this HRIA [human rights impact assessment] does not embark on the precarious task of seeking to establish a causal chain. Rather it sets out to ask whether the CFTA sets out measures that can reasonably be expected to progressively improve the enjoyment of human rights and in particular the right to food, the right to work and women’s rights. It proceeds from the assumption that getting the relevant trade intervention right is one amongst several necessary conditions for respecting, protecting and fulfilling human rights.50
Nevertheless, the authors felt able to make several recommendations for consideration by trade negotiators (including a list of goods to be excluded from liberalization because of their potential negative impact on the right to food,51 and the insertion of a safeguard clause for food security measures).52 They also offered a series of recommendations to governments for measures aimed at improving policy coherence and resilience.53
2.2 Human rights impact assessment as part of sustainability impact assessment: the development of the European Commission’s approach
The European Commission has adopted an ‘integrated’ approach to human rights impact assessment of trade agreements. This entails human rights issues being evaluated as part of a wider process that also takes account of social, economic and environmental issues under the broad heading of ‘sustainability impact assessment’ (SIA). EU policy on SIAs can be traced back to 1999 and the run-up to the WTO Ministerial Conference in Seattle, a period when civil society campaigns around the social and environmental impacts of trade and globalization had reached a level of intensity that appeared, to EU officials, to require a clear policy response.54
Initially based on US practice with respect to environmental assessments of trade policies,55 SIA practice with respect to the identification and evaluation of human rights impacts has evolved over time. For instance, first-generation SIAs, such as the 2002 EU–Chile Association Agreement SIA, incorporated an examination of labour rights and gender equality into their social analysis, but did not engage in a discussion of the effects of the trade agreement on human rights more generally.56 By comparison, more recent SIAs carried out under later guidance (see Box 4 below) have discussed human rights impacts separately, allocating a specific section to a ‘human rights analysis’.57 The SIA conducted in support of negotiations on a plurilateral Trade in Services Agreement (TiSA), for example, bases its analysis on quantitative data and qualitative studies and input from civil society. It identifies the rights at risk (e.g. right to health, right to access to healthcare, right to education, right to work, right to protection of personal data) and the potential impacts (directly or indirectly trade-related, positive or negative, major or minor etc.) of the trade agreements on the identified rights.58 However, the content of those rights, and precisely how the trade agreement may affect enjoyment of them, is not the subject of detailed legal analysis as part of this process.59
Box 4: Key milestones in the development of the EU’s approach to SIAs
2006: The European Commission systematizes a methodology for consultants in a Handbook for Trade Sustainability Impact Assessment in 2006.60
2012: Following the adoption of the 2012 EU Strategic Framework and Action Plan on Human Rights and Democracy, the European Commission is required to incorporate human rights in all impact assessments, including SIAs of trade agreements.61
2015: As part of its implementation of the 2012 EU Strategic Framework and Action Plan, the Commission drafts guidelines for integrating a human rights impact analysis in the existing SIAs’ framework.62
2016: Additional, more detailed methodological guidance appears with the adoption by the European Commission of a second edition of its Handbook for trade sustainability impact assessment, which contains specific guidance on the inclusion of a human rights dimension in the impact assessment.63
SIAs are conducted for the EU by external consultants who use economic modelling techniques64 to make predictions about the likely effects of a trade intervention on domestic economies and communities. Data reflecting the economic, social and environmental situation and policies of the EU and its prospective trading partner prior to the conclusion of the trade agreement are used to develop a ‘baseline scenario’. Through analysis of a ‘liberalization scenario’ against the ‘baseline scenario’, practitioners seek to quantify changes in production in particular sectors, changes in welfare indicators, changes in the returns of the factors of production (e.g. labour, capital, land), and changes in imports and exports by sector.65 Within the SIA process, this is now complemented by quantitative and qualitative social and environmental information-gathering and analysis to help build up a more detailed picture of the likely economic, social, human rights and environmental impacts of the agreement in question.66
Following the 2015 guidelines and the 2016 second edition of the EU’s SIA handbook (see Box 4 above), consultants engaged to carry out SIAs on behalf of the Commission now follow a nine-step process (i.e. preparation, screening, scoping, evidence-gathering, consultations, analysis, conclusions and recommendations, publication, monitoring and evaluation). This methodology has similarities with the seven-step process adopted by Walker in his 2009 assessment of CAFTA-DR, although with two key elements (i.e. ‘evidence-gathering’ and ‘consultations’) highlighted as specific steps.
In terms of deliverables, first-generation SIAs consisted of a standalone final report. However, these assessments (and the terms of reference which shaped them) made little (if any) provision for stakeholder consultation.67 More recent SIAs have involved the production of several reports (i.e. inception report, interim or midterm report, and final report) issued progressively to allow (at least in principle) for appropriate stakeholder consultation.68 Recommendations to the Commission are not legally binding. However, it is customary for SIA processes to be followed by a position paper in which the European Commission sets out its views with respect to the findings and policy recommendations presented in the final report.69
More than 20 SIAs of bilateral and multilateral trade agreements have so far been completed, and at the time of writing four are ongoing.70
31 Kirkpatrick and George (2006), ‘Methodological issues in the impact assessment of trade policy’, p. 326.
32 Harrison J., Barbu, M., Campling, L., Ebert, F., Martens, D., Marx, A., Orbie, J., Richardson, B. and Smith, A. (2018), ‘Labour Standards Provisions in EU Free Trade Agreements: Reflections on the European Commission’s Reform Agenda’, World Trade Review 17(3), pp. 1–23, doi: doi.org/10.1017/S1474745618000204 (accessed 9 Jan. 2019); and Van den Putte, L. and Orbie, J. (2015), ‘EU Bilateral Trade Agreements and the Surprising Rise of Labour Provisions’, International Journal of Comparative Labour Law and Industrial Relations, 31(3), pp. 263–83, at p. 264 (accessed 9 Jan. 2019).
33 The Agreement Concerning Annual Reports on Human Rights and Free Trade Between Canada and the Republic of Colombia was signed on 27 May 2010. Links to the annual reports can be found at Embassy of Canada to Colombia (undated), ‘Agreement Concerning Annual Reports on Human Rights and Free Trade between Canada and the Republic of Columbia’, www.canadainternational.gc.ca/colombia-colombie/bilateral_relations_bilaterales/hrft-co_2012-dple.aspx?lang=eng (accessed 9 Jan. 2019).
34 Art 1(1) of Agreement Concerning Annual Reports on Human Rights and Free Trade Between Canada and the Republic of Colombia.
35 Rochlin, J. (2014), ‘A Golden Opportunity Lost: Canada’s Human Rights Impact Assessment and the Free Trade Agreement with Colombia’, International Journal of Human Rights, 18(4–5), pp. 545–66, at pp. 551–54, doi: doi.org/10.1080/13642987.2014.917627 (accessed 9 Jan. 2019).
36 See Harrison (2011), ‘Human Rights Measurement: Reflections on the Current Practice and Future Potential of Human Rights Impact Assessment’, p. 169. Negotiations were suspended in 2006 and have not resumed. See bilaterals.org (2012), ‘US-Thailand’, https://www.bilaterals.org/?-US-Thailand (accessed 9 Jan. 2019).
37 Harrison (2011), ‘Human Rights Measurement: Reflections on the Current Practice and Future Potential of Human Rights Impact Assessment’.
38 Walker, S. (2009), The Future of Human Rights Impact Assessments of Trade Agreements, Brussels: Intersentia, p. 6.
39 Harrison (2011), ‘Human Rights Measurement: Reflections on the Current Practice and Future Potential of Human Rights Impact Assessment’, p. 177.
40 Walker (2009), The Future of Human Rights Impact Assessments of Trade Agreements, pp. 123–24.
41 For a detailed explanation of the aims of each of these seven steps (and the key activities involved), see Walker (2009), The Future of Human Rights Impact Assessments of Trade Agreements, pp. 89–102.
42 See Harrison, J. and Stephenson, M. (2010), Human Rights Impact Assessment: Review of Practice and Guidance for Future Assessments, Edinburgh: Scottish Human Rights Commission, https://fian-ch.org/content/uploads/HRIA-Review-of-Practice-and-Guidance-for-Future-Assessments.pdf (accessed 9 Jan. 2019) in which a similar (though eight-step) methodology is proposed which merges ‘preparation’ and ‘screening’ but proposes two additional steps: ‘consultation’ and ‘evidence gathering’. See also Walker (2009), The Future of Human Rights Impact Assessments of Trade Agreements, pp. 89–102, in which a nine-step methodology is outlined. By way of comparison, the 2011 De Schutter Principles propose a six-step methodology, excluding preparation and reporting (which are absorbed in the screening and conclusions phases respectively) and including an additional step, namely ‘evidence gathering’, which includes consultation of relevant right-holders. Further variations of this model can be found in the successive iterations of guidance for sustainability impact assessment practitioners issued by the European Commission, discussed further in Section 2.2.
43 Harrison (2011), ‘Human Rights Measurement: Reflections on the Current Practice and Future Potential of Human Rights Impact Assessment’, p. 172.
44 Morgan, W., Sami, R., Rowland, C. and Legge, D. (2010), Human rights and trade in the Pacific: A scoping study on designing a Human Rights Impact Assessment for PACER-Plus, Melbourne: La Trobe University, https://www.latrobe.edu.au/__data/assets/pdf_file/0015/240135/ACFID-IHS-WP-01-Morgan-et-al.pdf (accessed 5 Dec. 2018).
45 Paasch, A., Chemnitz, C., Sengupta, R., Ramdas, S., Bhutani, S., Asher, M. and Hoffmann, R. (2011), Right to Food Impact Assessment of the EU-India Trade Agreement, Aachen: MISEREOR, Berlin: Heinrich Böll Foundation, Penang: Third World Network, Andhra Pradesh: Anthra and Prague: Glopolis, pp. 11–13, https://www.twn.my/title2/FTAs/General/RFIA/RFIA_Final.pdf (accessed 9 Jan. 2019).
46 United Nations Economic Commission for Africa (UNECA) and Friedrich Ebert Stiftung (FES) (2017), The Continental Free Trade Area (CFTA) in Africa – A Human Rights Perspective, July 2017, p. 41, http://www.fes-globalization.org/geneva/documents/2017/2017_07_CFTA_HRIA_Publication.pdf (accessed 12 Dec. 2018).
47 Ibid., p. 47.
48 Ibid., pp. 41–42, 61–117.
49 Ibid., pp. 118–28.
50 Ibid., p. 44.
51 Ibid., p. 95.
52 Ibid., p. 96.
53 For a summary of key recommendations, see UNECA (2017), Building a Sustainable and Inclusive Continental Free Trade Area: Nine Priority Recommendations from a Human Rights Perspective, Geneva: UNECA, https://www.uneca.org/sites/default/files/PublicationFiles/policy_brief_building_sustainable_and_inclusive.pdf (accessed 7 Nov. 2018).
54 Kirkpatrick and George (2006), ‘Methodological issues in the impact assessment of trade policy’, p. 325.
55 Ibid., p. 326.
56 PLANISTAT-LUXEMBOURG and CESO-CI (2002), Sustainable Impact Assessment (SIA) of the trade aspects of negotiations for an Association Agreement between the European Communities and Chile (Specific agreement No 1) – Final Report (revised), Brussels: European Commission, pp. 203–05, http://trade.ec.europa.eu/doclib/docs/2010/may/tradoc_146109.pdf (accessed 7 Nov. 2018).
57 Ecorys (2017), Trade SIA in support of negotiations on a plurilateral Trade in Services Agreement (TiSA) – Final Report, pp. 90–108, http://www.trade-sia.com/tisa/wp-content/uploads/sites/7/2014/02/TiSA-Final-Report.pdf (accessed 7 Nov. 2018).
58 Ibid.
59 Walker, S. (2018), ‘Human Rights in the Trade and Sustainability Impact Assessment of the EU–Tunisia Free Trade Agreement’, Journal of Human Rights Practice, 10(1): pp. 103–24, at pp. 113–14, doi: https://doi.org/10.1093/jhuman/huy007 (accessed 15 Jan. 2019). On the relevance and importance of legal analysis, see further the discussion in Section 3.1 below.
60 European Commission (2006), Handbook for Trade Sustainability Impact Assessment, Brussels: European Union, http://trade.ec.europa.eu/doclib/docs/2006/march/tradoc_127974.pdf (accessed 15 Jan. 2019).
61 Council of the European Union (2012), EU Strategic Framework and Action Plan on Human Rights and Democracy, Luxembourg: Council of the European Union, https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/131181.pdf (accessed 15 Jan. 2019). See also Walker (2018), ‘Human Rights in the Trade and Sustainability Impact Assessment of the EU–Tunisia Free Trade Agreement’, p. 104.
62 European Commission, Directorate-General for Trade (2015), Guidelines on the Analysis of Human Rights Impacts in Impact Assessments for Trade-Related Policy Initiatives, http://trade.ec.europa.eu/doclib/docs/2015/july/tradoc_153591.pdf (accessed 7 Nov. 2018). See also Walker (2018), ‘Human Rights in the Trade and Sustainability Impact Assessment of the EU–Tunisia Free Trade Agreement’, p. 104.
63 European Commission (2016), Handbook for trade sustainability impact assessment (2nd ed.), pp. 21–23.
64 The most widely used method is known as ‘computable general equilibrium’ modelling, or CGE, a quantitative tool for conducting assessments of how economies may react to changes in policy, technology and other exogenous factors or shocks.
65 Europe Economics (2016), CGE Modelling of Free Trade Agreements, London: Europe Economics, http://www.europe-economics.com/userfiles/library/CGE_modelling_of_FTAs.pdf (accessed 5 Dec. 2018).
66 For a description of how this analysis was undertaken in the context of a specific assessment exercise, see Walker (2018), ‘Human Rights in the Trade and Sustainability Impact Assessment of the EU–Tunisia Free Trade Agreement’, p. 105.
67 See, for example, the sustainability impact assessment prepared for the EU–Chile Association Agreement in 2002, PLANISTAT-LUXEMBOURG and CESO-CI (2002).
68 See European Commission (2006), Handbook for Trade Sustainability Impact Assessment, p. 13 and pp. 25–30.
69 Ibid., p. 13 and p. 30.
70 To access the full list of completed and ongoing SIAs of EU trade agreements, see European Commission (undated), ‘Sustainability Impact Assessments’, http://ec.europa.eu/trade/policy/policy-making/analysis/policy-evaluation/sustainability-impact-assessments/index_en.htm (accessed 7 Nov. 2018).