3. Challenges
Experiences with human rights impact assessments of trade agreements have thrown up a number of challenges which need to be properly understood and addressed if practice is to improve and if take-up by states outside the EU is to increase. These comprise mainly methodological challenges (particularly around the question of establishing causation between a trade agreement and human rights impacts – see Section 3.1.2 below); political sensitivities where the assessment process in question seeks to examine human rights impacts in other states (see Section 3.2 below); and a host of difficult process-related challenges and dilemmas relevant to the robustness, efficiency, fairness and inclusivity of the process (see Section 3.3 below).
3.1 Methodological challenges
Although the basic steps of human rights impact assessment are reasonably well established, the fact that few governments or state agencies outside the EU have even attempted such an exercise in relation to trade proposals means that there is not yet a broad base of state practice from which we can draw ‘good practice’ lessons.71
For human rights impact assessments it is necessary to carry out a further step, which is to explain these findings in human rights terms. However, the differentiation between the social and environmental analysis and the human rights part of the assessment is not always clear.
Many of the methodological challenges associated with human rights impact assessment of trade agreements are inherent to the process rather than subject to the particular scenarios being assessed. The complexities of domestic economies, their interconnectedness and their vulnerability to both domestic and external factors mean that there are limitations to economic modelling as a tool for forecasting future events. Extrapolating from economic modelling outputs to draw conclusions about likely social or environmental effects is also an inexact science for similar reasons. For human rights impact assessments it is necessary to carry out a further step, which is to explain these findings in human rights terms. However, the differentiation between the social and environmental analysis and the human rights part of the assessment is not always clear.
The fact that states are subject to human rights obligations under international law suggests the need for some kind of legal analysis – certainly, this is the case when assessments are done by states or on their behalf. The nature and scope of the legal analysis required obviously depend on what the assessment is for; a question that, despite its fundamental importance, is not yet entirely settled.
An understanding of the legal issues involved is also a necessary part of developing a robust approach to the key question of causation. If the intention is to provide policymakers with reassurance that implementation of a particular trade agreement will not lead to human rights violations by the states concerned, then the links between the trade agreement and possible future harm will need to be analysed against the relevant legal tests for causation. However, if the intention is to enable policymakers to identify possible strategies for mitigating the risks of adverse impacts to people’s ability to enjoy their human rights (a different, though related, question), then the analysis will be more directed towards understanding the nature and sources of different types of risk, the mitigating options open to the relevant states, their feasibility and likely effectiveness. Either way, it is only possible to distinguish between the impacts that are bound to result from an agreement and the impacts that are actually the result of policy choices by a government concerned when one has a detailed understanding not only of what the trade agreement obliges the trading partners to do (and not to do), but also of the flexibilities that are built into the agreement to allow states to take mitigating action if needed.
Human rights impact assessment methodologies would benefit from greater clarity about what the assessment exercise is designed to achieve.
This section focuses on these two related issues. It argues, first of all, that human rights impact assessment methodologies would benefit from greater clarity about what the assessment exercise is designed to achieve (as well as from greater realism about what can be achieved). The second part of this section is concerned with the difficult issue of causation. The discussion focuses particularly on the role of specialist legal analysis, not only for explaining and interpreting a state’s human rights obligations under international law, but also for the purposes of producing an analysis (likely to be more of value to negotiators than is currently the case) that clearly distinguishes between three different categories of risk: first, the human rights risks that flow from the fact of an agreement having been entered into; second, the human rights risks that arise from the agreement and that can (and should) be managed by taking advantage of whatever exceptions and flexibilities are made available pursuant to the agreement; and, third, the likely effects of the agreement on human rights, given economic and political realities.
3.1.1 A legal or policy tool?
It is not possible to judge the success or otherwise of human rights impact assessment processes without clarity as to what they are for. However, for human rights impact assessment of trade agreements this clarity of purpose has not quite arrived, despite calls from a number of quarters for greater use of these methodologies and processes. Although human rights impact assessment in this context has been billed as a potentially valuable ‘legal compliance tool’ for states,72 the focus of assessments in practice has been to identify social and economic impacts which may have a positive or negative impact on enjoyment, by different people and communities, of their human rights.73
Of course, the two exercises are not necessarily mutually exclusive, as there will come a point at which a diminution of levels of human rights enjoyment can raise the prospect of human rights violations. However, it is important to recognize the differences between, on the one hand, an exercise that aims to identify and quantify the risks of future human rights violations on the part of the prospective trading partners; and, on the other, an exercise that is primarily concerned with rising or falling levels of human rights enjoyment. In the former exercise, the proposed terms of a trade agreement are examined to see what effect their implementation may have on the ability of the respective trading partners to comply with their existing human rights obligations under international law. The latter approach uses ‘baseline’ economic, social and environmental data as its starting point and main frame of reference, rather than a detailed analysis of the relevant state’s human rights commitments.
It is important to understand the implications of these different approaches in terms of both their inputs (i.e. resources and analysis) and outputs (i.e. findings and policy recommendations). Obviously, both approaches rely on the ability of assessment practitioners to predict, with a reasonable degree of confidence, the likely economic, social and environmental effects of a trade agreement. In practice, though, the sheer number and range of variables involved – which include not only a spectrum of potential economic responses, but also the extent to which governments are able to respond to these effects through policy adjustments and flanking measures – mean that predictions can often only be tentative.74
Using economic modelling techniques to determine changing levels of human rights enjoyment is challenging enough. However, using the outcomes of these techniques to try to identify and quantify the risks of future human rights violations arising from a trade agreement is particularly problematic. Reductions in levels of enjoyment of human rights, though undesirable from a policy perspective and potentially concerning from a legal one, do not necessarily amount to a breach of international human rights law by the state concerned. This is because an adverse impact on the ability of a person to enjoy a human right does not necessarily imply a human rights violation any more than an improvement in a human rights situation necessarily implies compliance.
Whether, when and how a violation of a legal standard has occurred (or might occur in future) is a legal question. Therefore, an ex ante human rights impact assessment that focuses on the likelihood of human rights violations (as opposed to one based on an assessment of whether economic and social conditions are likely to improve or deteriorate) must draw from legal analysis if it is to provide a clear and convincing narrative of which future violations are likely as a result of the trade agreement and why. The starting point of any such analysis, as noted above, is the set of human rights obligations to which the relevant state is subject, whether by virtue of its specific treaty commitments or because of customary international law. Legal analysis is then used to determine which standards are at risk of being breached, whether the conditions for legal responsibility are satisfied (which includes, in this context, an examination of whether the harm is actually the consequence of the trade agreement or some other cause),75 and the point at which a breach will be deemed to have occurred.
The fact that many of the human rights likely to be affected (e.g. the right to food, the right to an adequate standard of living and the right to health) are progressive and programmatic in nature poses further challenges for assessment practitioners. This is not to imply that the content of these rights lacks substance.76 The key point here is that the enjoyment of human rights in fact can be a matter of degree. Moreover, the extent to which people can enjoy their rights in practice will often depend on the availability and allocation of resources, which in turn will be influenced not only by future political choices but by a range of other contingencies, not least of which will be the future performance of domestic economies. All these factors combine to make it extremely difficult to predict exactly when, and in what circumstances, a future human rights violation associated with a trade agreement may occur.
There is a special set of cases, of which it is important to be aware, in which the content of the relevant human rights obligations is sufficiently precise, and the impacts on the enjoyment of those rights are sufficiently clear and direct, that the conclusion and implementation of a trade agreement will inevitably place the state with territorial jurisdiction (or both states in the case that those human rights obligations have extraterritorial scope) in violation of its (or their) human rights obligations. This would be the case where a trade agreement violated a people’s right of self-determination, for instance because it amounted to an unlawful assertion of sovereignty over occupied territories by one of the states concerned,77 or to recognition of an illegal state of affairs by its trading partner;78 or because it imposed obligations on third parties (i.e. people under occupation) to which they could not be said to have consented;79 or because it had the potential to permanently deprive people in disputed territories of their resources without proper compensation.80
In most cases the economic and political contingencies will be such that these kinds of assessments are unlikely to (and cannot be expected to) provide a ‘yes or no’ answer to the question of whether future violations are likely.
Relatively speaking, though, the cases in which it will be possible to make confident predictions about future human rights violations associated with a trade agreement (even leaving aside the difficult issue of causation, discussed further in Section 3.1.2) are few. This is not to suggest that the exercise should not be done. In situations where the signing or implementation of a trade agreement is bound to violate a human rights obligation with a high degree of probability, that agreement should not be concluded. However, in most cases the economic and political contingencies will be such that these kinds of assessments are unlikely to (and cannot be expected to) provide a ‘yes or no’ answer to the question of whether future violations are likely.
On the other hand, an analysis that focuses on the likely effects of a trade intervention on levels of enjoyment of human rights has the potential to yield a list of impacts which over time ‘could possibly’, depending on a range of variables (and including the policy responses of the states concerned), lead to future human rights violations.81 This clearly has potential value, both from a legal compliance perspective and as a policy tool. In any case, whether human rights violations are the likely result or not, enjoyment of human rights should not suffer a regression as a result of the implementation of a trade agreement. Thus, establishing a baseline scenario, and seeking to model the human rights-related impacts as a result of a trade intervention, can, if done well and with appropriate follow-up, be a useful risk-management exercise. The challenges associated with developing a successful and inclusive process, and of arranging appropriate follow-up, are considered further in Section 3.3 and Chapter 4 below.
3.1.2 Developing a robust approach to the difficult question of causation
The question of ‘causation’ (i.e. establishing a causal link between a trade agreement and a given impact) tends to be dealt with only very loosely in human rights impact assessment methodologies. However, it is highly problematic in the context of human rights impact assessment of trade agreements because of the interrelatedness of different aspects of domestic economies, the interconnectedness of the global economic system, the range and unpredictability of cross-border and domestic political factors that can affect governmental decision-making (and hence the way in which a trade agreement is implemented), and the complexity of trade agreements themselves.
Trade agreements contain both obligations and exceptions. On the ‘obligations’ side, they seek to prevent parties from discriminating against imports of goods (and sometimes services) into their markets by means of quotas and customs duties. They may also aim to ensure that trading partners do not seek a market advantage by unfairly lowering the costs of production, for instance through subsidies to certain industries.
However, trade agreements also contain a number of exceptions which can potentially be invoked by states requiring the flexibility to respond to emerging human rights-related challenges. Here, exceptions relating to the protection of ‘public morals’, and to the protection of human life and human health, are of key importance.82 However, other exceptions are also relevant in this context, such as those that permit states (via ‘countervailing measures’) to block imports of subsidized products if such imports threaten to damage domestic industry; and those that permit restrictions of imports (via ‘safeguard measures’) in the event of an unexpected and potentially damaging import surge. Under preferential arrangements, developing countries will often have the benefit of additional flexibilities, which may, for instance, enable the subsidization of vulnerable producers or the imposition of import restrictions to protect infant industries.83
A legally robust analysis of the human rights risks posed by a trade agreement must take into account both the obligations likely to be included in a proposed trade agreement and the exceptions these obligations are likely to be subject to.
On the other hand, a failure to appreciate the meaning and importance of flexibilities in trade agreements, and then to analyse them properly, can distort the analysis of causal links between the trade agreements themselves and the human rights impacts that flow from their implementation. Without a proper understanding of these flexibilities, certain effects can be presented as required by an agreement whereas in actual fact they may depend on policy choices by the governments concerned.
There are cases, of course, in which theoretical policy choices may not be available in reality. Governments, particularly in developing countries, may be constrained by political factors, power imbalances between trading partners, or perhaps by requirements imposed by international financial institutions. In these circumstances, it is important that human rights impact assessments do not blur the distinction between what a trade agreement requires the parties to do and the likely effects of the agreement, given economic and political realities.
A robust and credible human rights impact assessment will seek to engage – properly and in an informed way – with the various options available to states when it comes to implementing a trade agreement, including the different ways in which flexibilities under that agreement may be used in practice. Examples can be found where practitioners have sought to do this. For example, Walker’s study of the effects of the intellectual property provisions of CAFTA-DR on the right to health in Costa Rica concludes that, at most, the relevant intellectual property provisions in CAFTA-DR might raise the price of pharmaceuticals in Costa Rica, but that even in this eventuality domestic policy measures could be adopted to mitigate the worst effects.84
However, there is also a need for realism in many cases about the extent to which causal links can in fact be drawn. This is recognized by the authors of a study of the effects of the International Convention on the Protection of New Varieties of Plants (UPOV) on the right to food in Africa, who commented that:
The clear identification of cause-effect relationships appeared to be particularly challenging in the present assessment, given the long and complex causal chains between UPOV-like PVP laws and realization of the right to food. Consequently, ambitions in terms of generating strong evidence along the complete causal chain had to be lowered.85
This is not to suggest that trying to predict the human rights impacts of trade agreements is a hopeless task. It is possible to foresee, for instance, that the obligations in a trade agreement might ‘create […] obstacles to the implementation of the State’s policy measures and programmes’ due to their effects on a country’s budget86 because obligations to reduce customs duties will have a measurable fiscal impact that is unlikely to be offset by internal taxation.87 And it may be possible to foresee, with a reasonable amount of confidence, that new patent protections are likely to raise prices of medicines, or that foreign competition for markets may lead to factory closures and job losses, or that the removal of subsidies will cause sudden rises in consumer costs, or that the opening up of more lucrative foreign markets may result in shortages of low-cost products at home.
The discussion above does, however, highlight the importance of multidisciplinary assessment teams that combine legal as well as economic, sociological, scientific and public policy expertise. In addition to the personnel required for economic and social modelling, assessment teams should prioritize access to experts in trade law to ensure that the analysis properly reflects, as far as is possible at the time of the assessment,88 both the obligations set out in the trade agreement in question and the flexibilities likely to be provided. Where possible, the assessment may be further enhanced by drawing from further fields of expertise, such as public policy studies or international relations, for an accurate picture of the political and economic constraints that will govern how trade agreements are implemented in practice.
3.2 Political sensitivities
Human rights impact assessments of trade agreements are not only concerned with ‘within-territory’ human rights impacts. Depending on the aim of the exercise, some may (and, in the case of EU SIA processes, frequently do) seek to identify and assess the human rights impacts of a trade agreement on the proposed trading partner (i.e. the other state party to the proposed agreement). In some cases, and depending on an assessment of where the principal human rights risks lie (as with SIAs commissioned by the European Commission with respect to developing states), this may be the primary focus and objective of the assessment process.
It should not be implied from this practice, however, that there is any general acceptance by states of legal obligations with respect to human rights abuses, taking place in other states, that might be connected (in one way or another) to the trading arrangements between them. The EU is a special case, having obligations under its own constitutional arrangements to respect human rights in other countries.89 Its inclusion of human rights impact assessments in its SIA processes, and the extension of SIA processes to examine human rights impacts in partner countries (in many cases in a great deal more detail than the assessments of possible impacts taking place within the EU itself), should be seen in this light.
The EU is a special case, having obligations under its own constitutional arrangements to respect human rights in other countries.
Beyond this special situation, the legal position is far less clear. While it is accepted that international human rights obligations are not strictly territorial,90 the extent to which states may have international law obligations with respect to the prevention of human rights abuses (for instance, by business actors) within the territorial boundaries of other states is presently the subject of vigorous academic debate.91
The issue of whether such obligations exist is an important one in the context of human rights impact assessment of trade agreements because, if no such obligations exist (and each state retains primary responsibility for protecting, respecting and fulfilling human rights within its own territorial boundaries), then the state carrying out the assessment is effectively making judgments as to another state’s levels of human rights compliance rather than its own. Whatever the motivations for conducting extraterritorial assessments (i.e. whether they are carried out as part of a legal compliance exercise or for other reasons), the potential political sensitivities should not be underestimated. Not only are assessment outputs likely to contain critiques of the human rights performance of prospective trading partners, the process itself will often need careful political handling if it is to avoid fuelling concerns, within the trading partner in particular, of neo-colonialism or ‘sophisticated unilateralism’.92
3.3 Process-related challenges
For many proponents of human rights impact assessment of trade agreements, the value of the process is not limited to what is achievable in terms of direct policy impact through shaping the trade negotiation. Human rights impact assessment is also seen as a way of providing a platform for stakeholder participation and consultation, and as an evidential basis on which advocates and communities can engage in debates about trade policy both generally and in relation to specific trading agreements.93 These considerations highlight the importance of proper process. However, in this regard, as with the substantive methodologies, there are a number of challenges.
3.3.1 The vast scale of the information-gathering exercise
The enjoyment of most (if not all) economic, social and cultural rights can be linked to the performance of domestic economies in one way or another, meaning that the range of human rights that could be affected by a trading agreement is wide and diverse. The upshot of this is that the scale of the information-gathering task is potentially vast. Gathering evidence for the purposes of an assessment (both quantitative and qualitative) can take many months of intensive research,94 requiring a considerable investment of time and resources and substantial costs.
The logistical challenges are compounded for planned assessments that seek to take account of extraterritorial as well as within-territory impacts. Some degree of prioritization is therefore necessary if the task is to be completed at all. For this reason, human rights impact assessment methodologies will usually prescribe a ‘scoping and screening’ exercise at an early stage, to enable identification of the most salient human rights risks, which will then form the focus of the subsequent assessment. The selection of issues at this point is key, as it can be difficult in practice for stakeholders to raise new issues at a later stage.
The aim of the scoping and screening exercise is to gain a basic understanding of the human rights context of the countries involved, in order to prioritize the subsequent research and to identify the stakeholders with whom it will be necessary to engage. This is typically a desk-based exercise, in which issues such as human rights commitments, human rights compliance (referring, for example, to any relevant treaty body or ILO comments on compliance under different international instruments), and legal and constitutional matters (such as independence of the judiciary) will be discussed and noted, perhaps by reference to a pre-agreed template, which may make use of questionnaires, indicators95 or both.
3.3.2 Ensuring meaningful and effective stakeholder consultation
Effective and meaningful stakeholder engagement is a crucial element of a ‘rights-based approach’ to human rights impact assessment, i.e. in which human rights principles are used to inform and guide the design of the process as well as the analysis that takes place under it.96 It is also vital for ensuring that the process is thorough and credible, for gathering evidence on possible human rights impacts on different groups, and for building public confidence and trust in the policy development and trade negotiation process.
In practice, though, the amount that can be done by way of stakeholder outreach and consultation is inevitably limited by time, budget and resources. As with information-gathering in general, the challenges are compounded significantly where, as a result of the scoping exercise, a decision has been taken to focus on extraterritorial risks in particular. SIA processes conducted by consultants engaged by the European Commission have been criticized for the lack of time and resources devoted to engagement with stakeholders in partner countries, which is typically limited to a small number of workshops in capital cities, making it difficult (if not impossible) for stakeholders from more remote areas to contribute meaningfully.97 Online ‘calls for information’, publicized through social media such as Facebook and Twitter, can help to expand the reach of information-gathering activities at a reasonably low cost.98 This is only ever a partial solution – not all affected stakeholders will necessarily have access to online facilities, for example – but more proactive outreach may well be constrained by budgets and available personnel.
3.3.3 Degree of independence of assessment practitioners
It seems widely accepted that human rights impact assessment should be conducted by an independent party, in order to ensure that the process is not merely political cover for decisions already made.99 This is not to imply that the assessor must necessarily be fully independent of the state. The 2011 De Schutter Principles envisage that the assessor could be a national human rights institution, a parliamentary committee or a state-appointed expert.100 The important point is that the assessor should have some degree of independence from the negotiators of the trade agreement.101 While Chapter 2 refers to a number of ex ante human rights impact assessments that have been initiated or conducted by civil society or UN actors, the remainder of this chapter focuses on assessments conducted at the behest of governments.
EU practice is to put SIAs of trade agreements into the hands of external consultants chosen by competitive tender.102 European Commission policy statements on SIAs emphasize the importance of the ‘independence’ of these consultants for a robust and objective assessment process.103 However, a number of NGOs and commentators have questioned the level of independence enjoyed by these consultants in fact, given the amount of involvement and input by EU officials at the scoping and review stages of the process. Clearly, there is a difficult balance to be struck between considerations of quality control and policy coherence, on the one hand, and the need for a robust and objective assessment process on the other (see Table 1).104
While allowance needs to be made for the fact that SIAs of trade agreements are still a fairly recent innovation, it is desirable that a strong professional community should emerge, with an identifiable set of professional standards and mechanisms for sharing best practice.105 At present, and perhaps unsurprisingly given the specialized, complex and challenging nature of the work, the pool of external consultants available and able to provide these services is still quite small. From the perspective of the credibility, effectiveness and cost-effectiveness of human rights impact assessment processes, this is less than ideal. Laws of supply and demand suggest that lack of competition among service providers is likely to push up professional fees and costs. Moreover, the degree of familiarity that can result from this situation can make it difficult to maintain a necessary level of independence and objectivity over time. On the other hand, it could also be argued that the relatively limited number of alternatives available to the Commission reduces the risk of commercial ‘capture’.
In the UK, it has been suggested by NGOs (in the context of discussions about post-Brexit trade policy) not only that human rights impact assessment of future trade agreements should be a statutory obligation, but that a specialist independent authority should be established for the purpose of either conducting or commissioning and overseeing such assessments.106 Such legislative underpinnings are needed, it is argued, to ensure that assessment processes are robust, predictable and adequately budgeted for.107 Although there seems little chance of these specific proposals being adopted in the near future, the wider point – about the need for specialist human rights input into decision-making about whether, when and how to undertake human rights impact assessment in this context – is one that deserves attention.
As noted above, some have suggested that national human rights institutions are an obvious source of this specialist expertise and, as such, deserve to be given a greater role in the process. However, there is a need for realism about the extent to which national human rights institutions can act as assessors themselves.108 Few would have a mandate that would extend to carrying out this kind of work routinely (i.e. beyond conducting targeted investigations and preparing ad hoc reports). Funding such work may be problematic given that performing services in exchange for financial remuneration may be explicitly prohibited. The scale of the information-gathering and analytical challenges, and the range of specialized skills required (e.g. in economic modelling, sociological analysis and law), means that few national human rights institutions have the resources to act as lead assessors. However, it is worth exploring opportunities for national human rights institutions to play an ancillary role in human rights impact assessments carried out by others, for instance by facilitating stakeholder dialogue and as convenors of roundtables and workshops.
3.3.4 Ensuring accountability to rights-holders
A rights-based approach to human rights impact assessment also demands that there be accountability to rights-holders for the way that assessments are conducted, and their findings applied. One way of achieving this is to ensure ‘that stakeholders are advised of their rights and obligations […] and of mechanisms of accountability that are available to them’.109 Furthermore, ‘[t]hese mechanisms must be accessible, transparent and effective. People must be able to hold duty-bearers accountable for the process of the impact assessment should it fail to respect their human rights.’110
Where a government is directly responsible for the conduct of a human rights impact assessment of a trade agreement, then it is possible that an assessment process may be subject to judicial review. Even so, judicial review comes with a number of practical disadvantages. Aside from the expense and delays that are often associated with court processes, restrictive rules on standing (e.g. requiring applicants to demonstrate a personal interest in the matter) may prove a barrier to legal challenges in some cases (depending, of course, on the specific legal requirements in the relevant jurisdiction and the way these are interpreted by the courts). In many developing countries, there are also serious obstacles generally to access to justice. Moreover, for those seeking to bring about improvements in human rights impact assessment methodologies and processes, the remedy is likely to be confined to a declaration of whether the action was legal or not, with limited scope for the development of guidance as to how problems might be avoided in future.111
Table 1: Who should take charge of the human rights impact assessment? Potential advantages and disadvantages of different approaches
|
Approach |
Advantages |
Disadvantages |
|---|---|---|
|
Government assessment |
|
|
|
Independent government agency (i.e. responsible for commissioning and oversight) |
|
|
|
Independent consultants |
|
|
|
National human rights institution |
|
|
For this reason, an ombudsman system might be a viable alternative. In the EU, the European Ombudsman is potentially on hand to help resolve problems in the event that a stakeholder is unhappy with the way that processes have been conducted, findings arrived at or comments reflected.112 The European Ombudsman has proved instrumental in gradually improving the European Commission’s transparency in trade negotiations, following numerous official requests for access to documents by campaigning groups in respect of the SIA processes for the Transatlantic Trade and Investment Partnership (TTIP).113 At a domestic level, parliamentary ombudsmen (or their equivalent) may offer another potential route towards the resolution of disputes or complaints arising from SIA processes. However, the remedial possibilities on offer in this context may be limited, potentially amounting to no more than a declaration that proper procedure had not been followed in a given case.
The European Ombudsman has proved instrumental in gradually improving the European Commission’s transparency in trade negotiations, following numerous official requests for access to documents by campaigning groups in respect of the SIA processes for the Transatlantic Trade and Investment Partnership (TTIP).
There are also likely to be limits to the extent to which parliamentary ombudsmen would be prepared to second-guess executive action in this context. The negotiation and conclusion of trade agreements is traditionally an area in which there is a high degree of executive discretion. It is important, too, not to overlook the political context in which trade negotiations may be taking place. Parliamentary ombudsmen would be acutely aware of the potential political ramifications (not to mention the commercial and investment ramifications) of a finding that a human rights impact assessment had not fully taken account of certain human rights issues in a prospective partner state, for example.
In some countries, it might also be possible to review the substance of a human rights impact assessment. The 2011 De Schutter Principles express the view that ‘courts may … have a role to play, for instance in hearing claims, based on the conclusions of the human rights impact assessment, as to whether the Executive may sign the agreement or should obtain further improvements, or as to whether it should denounce it’.114 In practice, this will depend on how far the courts in any given jurisdiction are permitted to apply human rights considerations in constraint of executive action. In the EU, at least, this is a possibility, as was seen in the successful challenge before the Court of Justice of the European Union (CJEU) to the EU–Morocco trade agreement.115 On the other hand, for the reasons explained above, such approaches are likely to be successful only in cases where the content of the relevant human rights obligations is very clear and where a direct causal link between the trade agreement and human rights violations can be established.
Box 5: Examples of accountability mechanisms that may be relevant to human rights impact assessment of trade agreements
- Specialized/bespoke complaints mechanism (e.g. for complaints about lack of access to processes)
- Parliamentary ombudsman services
- Judicial review (under administrative law)
- Other form of judicial challenge (e.g. CJEU, see above)
- Freedom-of-information legislation (for access to information about human rights impact assessment processes and the way that outcomes are used and applied, subject to the usual exceptions on public interest, national security and commercial confidentiality grounds)
3.3.5 Finding an appropriate balance between transparency and an effective negotiating strategy
A further set of process-related issues – linked, of course, to the issues of stakeholder consultation and accountability, discussed above – concerns the extent to which information about the trade negotiation process, the proposals under consideration and the outcomes of assessment processes should be subject to public and parliamentary scrutiny, and at what point in time.
Under EU SIA procedures, the reports submitted at the conclusion of each of the three main phases of the assessment process – the inception phase,116 the interim phase and the final phase117 – are all made publicly available, along with the European Commission’s comments on these reports.118 In addition, stakeholder meetings are convened to provide further opportunities for public discussion of the findings, although there have been complaints from some quarters about a lack of even-handedness on the part of the Commission when it comes to providing opportunities for ‘closed group’ discussions of trade proposals (suggesting, it is argued, a greater concern for business than for other interests).119
The fact that the ex ante assessment process takes place against the background of (and often in parallel with) a negotiation raises a number of difficult dilemmas for states about how much information to make public about assessment findings, and at what stage. It is inevitable that there will be some unease on the part of the states concerned about making public information that may reveal negotiating strategies, or that may give rise to friction between the negotiating parties.
The practical need for strategy and agility in the negotiating process is what underlies the level of executive discretion traditionally accorded to trade negotiations, and why attempts to introduce greater levels of public and parliamentary scrutiny are likely to be resisted. On the other hand, there is a legitimate argument that, if decisions are being made in this setting that have implications for the enjoyment of human rights (both at home and abroad), it is reasonable and appropriate that people should be able to express their views, through stakeholder engagement processes as discussed above, and via their elected representatives through parliamentary processes.
3.3.6 Integration of human rights impact assessment with other processes
A human rights impact assessment can be structured as a standalone process or, alternatively, conducted as part of an integrated process looking at a wider set of issues (e.g. social, economic and environmental issues). As explained above, the European Commission prefers the second approach, on the basis that ‘[i]ntegrated impact assessments … provide the most effective way of making a balanced assessment of the potential impacts of any proposed legislative or non-legislative initiative’.120 This approach has much to be said for it in terms of efficiency and coherency of analytical processes. Human rights abuses invariably have a social and economic context. Harms that have their roots in social and economic disadvantage can readily transform into human rights risks if institutional or law enforcement responses are poor, or if access to remedy is not made available. Adverse environmental impacts can have implications for the enjoyment of a range of human rights, including rights to health, rights to water, rights to an adequate standard of living and, in serious cases involving the displacement of people, rights to self-determination. As discussed above, assessing the likelihood and likely severity of a future adverse human rights impact often relies on economic and social modelling, as well as on the scientific knowledge required for environmental impact assessments.
On the other hand, integrated approaches can obscure the fact that human rights impact assessments take place – or at least should take place – against the background of the specific set of human rights obligations to which each state concerned is legally subject, by virtue of the treaties it has signed, or because of the operation of customary international law. As James Harrison observes, human rights impact assessments ‘must be fundamentally rooted in human rights norms and standards if they are really to be considered human rights impact assessments’.121
3.3.7 Timing
A final process-related question concerns the timing of an ex ante human rights impact assessment of a proposed FTA. Here there is a real dilemma: if the assessment takes place too early in a negotiation, before the parties’ positions are sufficiently known or developed, the parameters of the investigations may be too vague, or the options too diverse, for the process to be meaningful. On the other hand, if the assessment is carried out too late, it may not be possible for negotiators to respond effectively to any issues that emerge.122
Identifying the ‘goldilocks’ moment at which to carry out a human rights impact assessment of a trade agreement can be difficult. The European Commission considers this moment to be ‘soon after the Council of the European Union has formally authorised the Commission to enter into trade negotiations; in general not later than 6 months after the start of negotiations, to ensure that the analysis can usefully feed into the negotiating process at a useful stage’.123 Nevertheless, a number of NGOs have complained about the lateness of delivery of draft final reports (and recommendations) of EU SIA processes. The complaint is that these have arrived too late in the negotiating cycle to have any impact on decision-making or on the content of the trade agreement in question,124 raising questions as to whether the process is a meaningful one at all.125
On the other hand, the publication of draft recommendations arising from an SIA is the final act of a multi-stage consultation process. As noted above, EU SIA guidelines envisage and encourage stakeholder consultation on inception and interim reports, as well as on the final outcomes of the process.126 It is also open to SIA consultants to pass information on specific human rights-related risks to the Commission at other stages in the process if a specific human rights-related issue comes to light which may require an urgent response or discussion, or political handling.
Some commentators and civil society organizations have argued (including in the context of discussions on UK trade policy post-Brexit) that there should be some form of human rights impact assessment before the handing down of a negotiating mandate, not after.127 Within the EU, some pre-negotiation human rights impact assessment already takes place under the European Commission’s ‘Better Regulation Agenda’,128 which requires an assessment to be carried out by the Commission (DG Trade) prior to the formal request to the Council of Ministers for a negotiating mandate. The final outcomes of these preparatory assessment processes (which cover sectoral competitiveness and social, consumer, governance and administrative impacts, as well human rights impacts) are now made publicly available.129 Human rights issues typically receive a dedicated chapter, which discusses the background legal context of the countries concerned relevant to human rights, as well as the general human rights situation within the relevant jurisdictions, and may draw from the findings of external reports in respect of specific challenges. A key difference between the pre-negotiation impact assessment and the subsequent SIA process is that the initial impact assessment is a Commission-led and ‘-owned’ process, whereas the SIA process is designed as, and intended to proceed as, an independent assessment.
States face dilemmas in terms of how thoroughly to investigate potential human rights-related risks at this point. On the one hand, it may be too early in the process to be sure that a negotiating mandate, let alone a trade agreement, will materialize, meaning that the time, effort and funding invested in extensive information-gathering and consultation exercises could be wasted. Moreover, it may be too early for an open discussion of the type of terms likely to be proposed (and, indeed, from a strategic perspective there may be some unease about this on the part of governments and their negotiators).
On the other hand, effective stakeholder engagement is an essential aspect of a ‘rights-based’ process. A truncated process limits the time and opportunity for stakeholder engagement, meaning that stakeholder views on human rights-related risks that may be connected with the trade agreement will not inform pre-project planning and preparation to any degree. Elisabeth Bürgi Bonanomi argues that the pre-mandate and post-mandate assessments should be merged, on the basis that ‘[h]uman rights considerations should already play a role in the decision on whether or not to initiate negotiations, and on how to shape the draft which will build the basis for negotiation’.130
71 By way of comparison, the practice of human rights impact assessment in the corporate sphere has had the benefit of a growing body of guidance and commentary on matters such as human rights indicators, design and implementation of baseline studies, methodologies for conducting stakeholder engagement, remedial strategies and tracking performance over time. See, for example, Danish Institute for Human Rights (undated), ‘Human rights impact assessment guidance and toolbox’, https://www.humanrights.dk/business/tools/human-rights-impact-assessment-
guidance-and-toolbox (accessed 15 Jan. 2019); Global Compact Network Netherlands, Oxfam and Shift (2016), ‘Doing business with respect for human rights’, https://www.businessrespecthumanrights.org/ (accessed 15 Jan. 2019); and The Corporate Human Rights Benchmark (2018), 2018 Key Findings: Apparel, Agricultural Products and Extractive Companies, https://www.corporatebenchmark.org/sites/default/files/documents/CHRBKeyFindings2018.pdf (accessed 21 Jan. 2019). On the other hand, it must be recognized that while the human rights impacts of business activities, projects, investments and relationships are often reasonably foreseeable (i.e. to the extent that they can be determined by human rights due diligence), practitioners working in the trade context encounter a unique set of very difficult methodological challenges arising from the scale of the challenge and the difficulties establishing causation in this context, which are discussed further below.
72 2011 De Schutter Principles, para 2, p. 3.
73 Berne Declaration, Canadian Council for International Co-operation and MISEREOR (2010), Human Rights Impact Assessments of Trade Agreements: Reflections on Practice and Principles for Future Assessments, Geneva: Berne Declaration, Canadian Council for International Co-operation and MISEREOR, pp. 22–40, https://www2.ohchr.org/english/issues/food/docs/report_hria-seminar_2010.pdf (accessed 15 Jan. 2019).
74 Bürgi Bonanomi (2017), ‘Measuring Human Rights Impacts of Trade Agreements’, pp. 17–18. For further comments about the usefulness and potential limitations of economic modelling in the context of ex ante assessment of trade proposals, see Australian Government Productivity Commission (2010), Bilateral and Regional Trade Agreements, Canberra: Australian Government Productivity Commission, pp. 291–95, https://www.pc.gov.au/inquiries/completed/trade-agreements/report/trade-agreements-report.pdf (accessed 5 Dec. 2018).
75 See further Section 3.1.2 below.
76 Saul, B., Kinley, D. and Mowbray, J. (2014), The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials, New York and Oxford: Oxford University Press.
77 Case C-266/16, Western Sahara Campaign UK, ECLI:EU:C:2018:118 (27 February 2018), para 63.
78 Ibid., paras 143–46.
79 Case C-386/08, Brita GmbH v Hauptzollamt Hamburg-Hafen, ECLI:EU:C:2010:91, Judgment of the Court (Fourth Chamber) of 25 February 2010, para 52; Case C-104/16 P, Council v Front Polisario, Judgment of the Court (Grand Chamber), 21 December 2016, para 106.
80 Case C-266/16, Western Sahara Campaign UK, ECLI:EU:C:2018:118 (27 February 2018), para 37; Case C-266/16, Western Sahara Campaign UK, ECLI:EU:C:2018:1, Opinion of Advocate General Wathelet, 10 January 2018, paras 130–34.
81 Ibid.
82 See, respectively, GATT Art XX(a), GATS Art XIV(a), GATT Art XX(b) and GATS Art XIV(b). For a discussion of flexibilities in trade agreements and the regulatory scope they provide to state parties to address human rights-related concerns, see further Bartels (2009), ‘Trade and Human Rights’, pp. 582–85.
83 Bartels (2009), ‘Trade and Human Rights’, p. 582; GATT Art XVIII; and WTO Agreement on Agriculture, Art 6(2).
84 Walker (2009), The Future of Human Rights Impact Assessments of Trade Agreements, p. 176.
85 Braunschweig, T., Meienberg, F., Pionetti, C. and Shashikant, S. (2014), Owning Seeds. Accessing Food. A Human Rights Impact Assessment of UPOV 1991 based on case studies in Kenya, Peru and the Philippines, Zurich: The Berne Declaration, p. 44, https://www.publiceye.ch/fileadmin/doc/Saatgut/2014_Public_Eye_Owning_Seed_-_Accessing_Food_Report.pdf (accessed 12 Dec. 2018).
86 2011 De Schutter Principles, para 5.2, p. 11.
87 Baunsgaard, T. and Keen, M. (2010), ‘Tax Revenue and (or?) Trade Liberalization’, Journal of Public Economics, 94(9–10): pp. 563–77, doi: https://doi.org/10.1016/j.jpubeco.2009.11.007 (accessed 15 Jan. 2019).
88 Issues relating to the timing of human rights impact assessments are discussed further at Section 3.3.7 below.
89 See note 21 above and accompanying text. See 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.
90 There are cases, for example, where courts have held that extraterritorial human rights obligations do exist because of special circumstances that meant that the relevant state had ‘effective control’ over territory or individuals in other states. See International Court of Justice in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Rep. 136.
91 See Augenstein, D. and Kinley, D. (2013), ‘When human rights ‘responsibilities’ become ‘duties’: the extraterritorial obligations of states that bind corporations’ in Deva, S. and Bilchitz, D. (eds) (2013), The Human Rights Obligations of Business: Beyond the Corporate Responsibility To Respect?, Cambridge: Cambridge University Press. But for a contrary view, see Methven O’Brien, C. (2018), ‘The Home State Duty to Regulate the Human Rights Impacts of TNCs Abroad: A Rebuttal’, Business and Human Rights Journal, 3(1), pp. 47–73, doi: https://doi.org/10.1017/bhj.2017.29 (accessed 15 Jan. 2019). See also Ford, J. (2015), Business and Human Rights: Bridging the Governance Gap, Research Paper, London: Royal Institute of International Affairs, pp. 17–19, https://www.chathamhouse.org/sites/files/chathamhouse/field/field_document/20150922BusinessHumanRightsFordV2.pdf (accessed 1 May 2018).
92 That is, where ‘more powerful states negotiate provisions that reflect their own unilateral agenda, embedding them within a formally reciprocal structure’. See Harrison et al. (2018), ‘Labour Standards Provisions in EU Free Trade Agreements’, p. 12.
93 Bakker et al. (2009), ‘Human Rights Impact Assessment in Practice’, p. 442.
94 Harrison (2011), ‘Human Rights Measurement: Reflections on the Current Practice and Future Potential of Human Rights Impact Assessment’, p. 175.
95 See Götzmann, N., Bansal, T., Wrzoncki, E., Poulsen-Hansen, C., Tedaldi, J. and Høvsgaard, R. (2016), Phase 1: Planning and Scoping: Human Rights Impact Assessment Guidance and Toolbox, Copenhagen: Danish Institute for Human Rights, https://www.humanrights.dk/sites/humanrights.dk/files/media/dokumenter/business/hria_toolbox/phase_1/phase_1_planning_and_scoping_final_jan2016.pdf (accessed 15 Jan. 2019). Note, however, that some concerns have been raised about the growing use of indicators to ‘measure’ levels of human rights compliance. While these quantitative methods are intended to promote objectivity and analytical rigour, their use can lead to misleading conclusions about the extent to which human rights are actually being realized within the territory of a state. Moreover, the choices of indicators (which may be driven by bureaucratic considerations, such as ease of data collection and measurement) can obscure or distort conversations at national level about the most effective prioritization of effort and optimal allocation of resources. See further Rosga, A. and Satterthwaite, M. (2009), ‘The Trust in Indicators: Measuring Human Rights’, Berkeley Journal of International Law, 27(2): pp. 253–315, doi: https://doi.org/10.15779/Z38G07R (accessed 15 Jan. 2019).
96 Hunt and MacNaughton (2006), Impact Assessments, Poverty and Human Rights, pp. 32–34. See also Ruggie, J. (2007), Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises – Human rights impact assessments – resolving key methodological questions, UN Doc. A/HRC/4/74, Geneva: Human Rights Council, https://www.business-humanrights.org/sites/default/files/reports-and-materials/Ruggie-report-human-rights-impact-assessments-5-Feb-2007.pdf (accessed 15 Jan. 2019).
97 Ergon Associates (2011), Trade and Labour: Making effective use of trade sustainability impact assessments and monitoring mechanisms, Final Report to DG Employment, Social Affairs and Inclusion European Commission, September 2011, https://ergonassociates.net/wp-content/uploads/2012/02/Final-report-from-a-study1.pdf?x74739; and Gammage, C. (2010), ‘A Sustainability Impact Assessment of the Economic Partnership Agreements: Challenging the Participatory Process’, 3 Law and Development Review, 3(1): pp. 107–34, doi: https://doi.org/10.2202/1943-3867.1071 (accessed 15 Jan. 2019).
98 For example, the use of Facebook and Twitter to promote a grassroots consultation in the SIA processes developed for the proposed EU–China Investment Agreement; see Ecorys Nederland, Oxford Intelligence, TNO and Reichwein China Consult (2017), Sustainability Impact Assessment (SIA) in support of an Investment Agreement between the European Union and the People’s Republic of China Interim Report, Brussels: European Commission, pp. 173–85, http://trade.ec.europa.eu/doclib/docs/2017/june/tradoc_155638.pdf (accessed 15 Jan. 2019). This is an area where some cross-fertilization between state practice and corporate practice could potentially be extremely beneficial, given the considerable effort and resources presently being devoted to developing techniques for enhancing stakeholder engagement in the context of corporate human rights due diligence activities. See Abrahams, D. and Wyss, Y. (2010), Guide to Human Rights Impact Assessment and Management, London: International Business Leaders Forum and International Finance Corporation, pp. 38–42.
99 Harrison (2011), ‘Human Rights Measurement: Reflections on the Current Practice and Future Potential of Human Rights Impact Assessment’, p. 171; and Bürgi Bonanomi (2017), ‘Measuring Human Rights Impacts of Trade Agreements’, p. 496.
100 2011 De Schutter Principles.
101 2011 De Schutter Principles, para 4.3, p. 10.
102 European Commission (2016), Handbook for trade sustainability impact assessment (2nd ed.), pp. 5, 6 and 9.
103 ‘SIAs are carried out by external consultants in a neutral and unbiased manner, under strict rules on the absence of conflicts of interest.’ SIA Key Principles, Ibid., p. 16.
104 World Organisation Against Torture (2017), ‘Joint statement by European NGOs: No EU trade agreement with Mexico without ex-ante sustainability impact assessment’, http://www.omct.org/monitoring-protection-mechanisms/urgent-interventions/european-union/2017/12/d24642/ (accessed 16 Jul. 2018); and Walker (2018), ‘Human Rights in the Trade and Sustainability Impact Assessment of the EU–Tunisia Free Trade Agreement’.
105 Harrison (2011), ‘Human Rights Measurement: Reflections on the Current Practice and Future Potential of Human Rights Impact Assessment’, pp. 181–83.
106 Amnesty International UK (2018), The Trade Bill Briefing.
107 The level of discretion enjoyed by the European Commission with respect to the conduct of human rights impact assessment of trade agreements was the subject of a dispute brought to the European Ombudsman in 2014, in which the International Federation for Human Rights and the Vietnam Committee on Human Rights complained of the failure of the Commission to carry out a prior human rights impact assessment of the EU–Vietnam FTA. The Commission had argued that, given that it had previously conducted an SIA concerning the Association of Southeast Asian Nations (ASEAN) countries, which paid special attention to working conditions and associated rights, and which covered Vietnam, there was no need for a separate human rights impact assessment concerning Vietnam. The Ombudsman rejected this argument and held that ‘[the Commission’s] refusal to carry out a prior human rights impact assessment for the EU Free Trade Agreement with Vietnam when negotiations on that agreement were still ongoing … constitutes maladministration’. See 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’.
108 2011 De Schutter Principles, para 4, p. 9.
109 Hunt and MacNaughton (2006), Impact Assessments, Poverty and Human Rights, pp. 32–34.
110 Ibid.
111 Harrison (2011), ‘Human Rights Measurement: Reflections on the Current Practice and Future Potential of Human Rights Impact Assessment’, p. 179.
112 See 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’ for an example of a case where a decision not to conduct a human rights impact assessment was referred to the European Ombudsman.
113 Delimatsis, P. (2017), ‘TTIP, CETA, and TiSA Behind Closed Doors: Transparency in EU Trade Policy’ in Griller, S., Obwexer, W. and Vranes, E. (eds) (2017), Mega-Regional Trade Agreements: CETA, TTIP, and TiSA: New Orientations for EU External Economic Relations, New York and Oxford: Oxford University Press, pp. 232–40.
114 2011 De Schutter Principles, para 4.3, p. 10.
115 Case C-266/16, Western Sahara Campaign UK, para 63.
116 European Commission (2016), Handbook for trade sustainability impact assessment (2nd ed.), p 11.
117 Ibid., pp. 11–13.
118 These are usually provided by way of ‘position papers’.
119 Walker (2018), ‘Human Rights in the Trade and Sustainability Impact Assessment of the EU–Tunisia Free Trade Agreement’.
120 European Commission, Directorate-General for Trade (2015), Guidelines on the Analysis of Human Rights Impacts in Impact Assessments for Trade-Related Policy Initiatives.
121 Harrison (2011), ‘Human Rights Measurement: Reflections on the Current Practice and Future Potential of Human Rights Impact Assessment’, p. 177.
122 2011 De Schutter Principles, para 3, p. 8.
123 European Commission (2016), Handbook for trade sustainability impact assessment (2nd ed.), p. 11.
124 The SIA process developed for the EU–US Transatlantic Trade and Investment Partnership (TTIP) was criticized for failing to deliver a draft final report until the 14th round of negotiations – too late, according to civil society organizations, to be taken into account in the negotiations in any meaningful way. See Delimatsis (2017), ‘TTIP, CETA, and TiSA Behind Closed Doors’.
125 This may be a factor in the ‘dwindling stakeholder interest’ in SIA processes noted in Ergon Associates (2011), Trade and Labour: Making effective use of trade sustainability impact assessments and monitoring mechanisms, p. 6.
126 See Section 3.3.2. See further European Commission (2016), Handbook for trade sustainability impact assessment (2nd ed.).
127 Amnesty International UK (2018), The Trade Bill Briefing. See also Bürgi Bonanomi (2017), ‘Measuring Human Rights Impacts of Trade Agreements’, pp. 494–95.
128 European Commission (undated), ‘Better regulation: why and how’, https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/better-regulation-why-and-how_en (accessed 23 Jan. 2018).
129 Ibid. Completed assessments are made available on a dedicated DG Trade website.
130 Bürgi Bonanomi (2017), ‘Measuring Human Rights Impacts of Trade Agreements’, p. 495.