4. Ex Ante Human Rights Impact Assessment as a Foundation for Future Monitoring and Risk Management
Although human rights impact assessment of trade agreements is presented as a decision-making tool – potentially leading to a decision to abandon, or seek amendments to, a trade agreement, for example131 – the circumstances in which it can be confidently predicted that human rights violations will flow directly from the implementation of a trade agreement are actually very few.132 At the other end of the spectrum, because of the ‘screening’ processes used in human rights impact assessment methodologies to identify the areas most in need of in-depth assessment, categorical determinations of ‘no risk’ tend to be fairly rare also. Much of the discussion of human rights risks in impact assessment reports tends to be of social, environmental and economic impacts which, depending on a range of contingencies, could possibly result in a diminution in the ability of certain people to enjoy their human rights in the short, medium and longer term.
For those human rights risks that could possibly develop into human rights violations in time without sufficient mitigation on the part of the relevant state (or states), the relevant facts and contingencies will in many cases be too unclear at the time of negotiation of the agreement to allow for a detailed and bespoke set of safeguards to be written into the text of the agreement itself. The precise nature and extent of different risks, and the success or otherwise of different mitigation strategies, will only become apparent over time. To ensure that these strategies are working as they should, and that a situation is not worsening to the extent that breaches of a state’s human rights obligations are a likely or possible consequence, a robust and systematic form of monitoring is necessary.133
This chapter sets out some preliminary observations on how human rights issues identified in ex ante processes can be followed up, either pursuant to the terms of the relevant trade agreement itself, or through complementary processes.134 While there is much to be said about the various ways in which trade agreements may be made more responsive to human rights issues in general,135 the chapter confines itself to monitoring arrangements for human rights risks, as a continuation of the discussion of ways to make ex ante processes more meaningful and effective in practice.
4.1 Ex post monitoring through existing treaty mechanisms – legal, structural and political issues to consider
Since the 2008 EU–CARIFORUM Agreement,136 trade and sustainable development (‘TSD’) chapters have become a standard feature of EU trade agreements;137 all TSD chapters of these agreements include provisions relating to monitoring the effect of a given agreement on sustainable development.138 The provisions can vary in strength from recognizing the importance of ongoing monitoring and assessment139 to imposing a positive obligation on each of the parties to ‘to review, monitor and assess the impact of the implementation of [the] Agreement on sustainable development in its territory in order to identify any need for action that may arise in connection with [the] Agreement’.140 The 2011 EU–Korea FTA makes explicit reference to ‘trade-related sustainability impact assessments’.141
Since the 2008 EU–CARIFORUM Agreement, trade and sustainable development (‘TSD’) chapters have become a standard feature of EU trade agreements; all TSD chapters of these agreements include provisions relating to monitoring the effect of a given agreement on sustainable development.
Institutional mechanisms are created under the TSD chapters of EU trade agreements to oversee the implementation of the provisions as they relate to labour, environmental issues and sustainable development. While the exact structures may vary from agreement to agreement depending on the outcome of negotiations, they typically comprise a high-level joint committee (charged with overseeing implementation of chapters relating to trade, labour and sustainable development) plus an annual civil society forum (to facilitate dialogue on sustainable development issues), the membership of which includes domestic consultative mechanisms (referred to as ‘domestic advisory groups’). These domestic advisory groups are established by each party for the purposes of gathering views and advice on sustainable development issues within its own jurisdiction. They are intended to be made up of representatives of business, trade unions and civil society organizations.
By way of illustration, the basic organizational structure of the various mechanisms established to oversee implementation of the sustainable development provisions (including consultation with stakeholder groups) under the 2016 EU–Canada Comprehensive Economic and Trade Agreement (CETA), and the relationships between each mechanism, are set out graphically in Figure 1.
The need for effective social and ‘sustainability’ monitoring mechanisms is recognized in the concluding recommendations of virtually all SIAs conducted since 2012, when human rights risks became a required part of the research and analysis.142 However, as presently constructed, the ability of the various TSD chapter mechanisms to provide systematic follow-up monitoring of specific human rights risks identified in the course of ex ante SIA processes is limited. There are several reasons for this.
Figure 1: Basic structure of institutional arrangements for oversight of implementation of labour, environment and sustainable development chapters of EU–Canada CETA
— Notes: (i) ‘Domestic advisory groups’ are the consultative arrangements established with civil society organizations, trade unions and other stakeholders by each state party under the terms of the trade agreement for the purposes of gathering views and seeking advice on labour and environmental issues. See EU–Canada CETA, Article 23.8.4 (trade and labour) and Article 24.13.5 (trade and environment). (ii) The above figure is limited to displaying the main ongoing institutional arrangements established specifically for the purposes of the chapters of the agreement relating to trade and labour (Chapter 23), trade and environment (Chapter 24), and trade and sustainable development (Chapter 22). It should be noted that further opportunities for consultation and dialogue are provided for, e.g. through the principal Joint Committee (Chapter 26), through dispute resolution provisions included in the chapters on trade and labour (Article 23.9–23.11) and trade and environment (Article 24.14–24.16), and through provisions for bilateral dialogue and cooperation on specific issues (Chapter 25).
Figure 1: Basic structure of institutional arrangements for oversight of implementation of labour, environment and sustainable development chapters of EU–Canada CETA
4.1.1 Limited scope of mandates of institutional mechanisms established under the trade agreement
While there are certainly substantial overlaps and interlinkages between sustainable development and many different human rights, the institutional mechanisms under the chapters of EU trade agreements relating to trade and sustainable development (referred to in this section as ‘TSD chapters’) are established to focus on labour and environmental issues specifically.
The category of human rights known as ‘fundamental labour rights’ is certainly within the purview of the TSD chapters (and hence their institutional monitoring mechanisms). For instance, under the trade and labour chapter of the 2016 EU–Canada CETA (in what is now a standard provision of EU trade agreements), the state parties commit to ‘ensure [emphasis added] that its labour law and practices embody and provide protection for the fundamental principles and rights at work’, namely ‘(a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation’. Furthermore, the state parties ‘affirm their commitment to respect, promote and realise those principles and rights in accordance with the obligations of the members of the International Labour Organization’.143
The upshot of this is that the ability of institutional mechanisms under TSD chapters to address human rights impacts depends on the context in which they arise. For instance, while the issue of gender discrimination at work would certainly come within the scope of the institutional mechanisms established or referred to in the various TSD chapters (and specifically the chapter on trade and labour), the potential contribution of a trade agreement to an increase in gender inequality in wider society may not. For these broader risks, which fall outside the scope of fundamental labour rights, some other monitoring arrangements would need to be agreed. Similar issues arise with respect to environmental rights.
Figure 2: Extent of mandate of TSD chapter institutional mechanisms with respect to human rights, and potential for overlap with ‘fundamental’ human rights covered by ‘essential elements’ clause
— Note: Since 1995, the EU has implemented a policy of including an ‘essential elements’ clause in its trading arrangements with third countries, whereby the parties affirm their respective commitments (with some variation from agreement to agreement) to democratic principles, human rights and fundamental freedoms, and the rule of law. This ‘essential elements’ clause provides the legal basis for dialogue between the parties on human rights-related issues, as well as certain measures in cases of serious and persistent violations of human rights.
Figure 2: Extent of mandate of TSD chapter institutional mechanisms with respect to human rights, and potential for overlap with ‘fundamental’ human rights covered by ‘essential elements’ clause
4.1.2 Lack of a well-defined role for civil society organizations
The second obstacle to effective follow-up of ex ante findings derives from the lack of a clear role for civil society within the monitoring system. EU trade policymakers repeatedly emphasize the importance of stakeholder input into monitoring mechanisms as a means of gathering information on impacts from sources close to where they are being felt.144 However, this role is not spelled out clearly in the terms of the trade agreements themselves. Instead, the role of domestic advisory groups tends to be only vaguely expressed in terms of providing ‘views’ and ‘advice’, and the role of the Civil Society Forum in terms of facilitating ‘dialogue’. This creates obvious problems for the operationalization of civil society mechanisms under TSD chapters.145 While some flexibility may be necessary to allow parties to tailor their responses to local conditions, this can also result in inconsistencies in approach between different trading partners or in non-action,146 and can make the effectiveness of the mechanisms vulnerable to changes in government and political priorities.
TSD chapter terms relating to ex post monitoring arrangements are similarly vague. For instance, under the 2011 EU–Korea FTA, the parties merely agree to work ‘through their respective participative processes and institutions, as well as those set up under this Agreement, for instance through trade-related sustainability impact assessments’.147
The lack of a clear role for civil society mechanisms within the monitoring system creates difficult dilemmas for civil society organizations, trade unions and other stakeholders, which, faced with resource constraints of their own, need to consider carefully whether and how best to engage with these mechanisms. If the benefits of engagement are unclear, key stakeholder organizations are likely to direct their time and efforts elsewhere. The problem is potentially compounded by what many stakeholders view as a weak dispute resolution and enforcement system for breaches of commitments made under the TSD chapters.148
4.1.3 Challenges in converting unilateral findings and recommendations into joint commitments
There are bound to be limits to the extent to which a joint monitoring mechanism established under a trade agreement will be prepared to accept the findings and implement the recommendations of an ex ante human rights impact assessment process conducted by only one of the state parties, and in which the other state party may have had little or no input. This presents a challenge, not just for the institutional mechanisms established by (or referred to in) the various TSD chapters, but also for the periodic and ad hoc ‘joint assessments’ envisaged in the trade agreement’s terms.149
As discussed in the previous chapter, human rights impact assessments of trade agreements are not always confined to within-territory impacts.150 On the contrary, assessments of human rights impacts undertaken in the course of EU SIA processes often place far more emphasis on identifying human rights impacts in partner countries than within the EU itself, with all the political sensitivities this may trigger.151 Such sensitivities may prevent these issues from being monitored (i.e. under a joint mechanism) in the manner, or to the extent, that an ex ante assessment report might recommend.
Nevertheless, as mentioned above, a commitment to continue to ‘review, monitor and assess the impact of the implementation of … [a trade agreement] … on sustainable development in its territory’ is a standard provision in EU trade agreements.152 Will the EU look to expand the scope of these monitoring processes? Present policy is for ex post evaluations of trade agreements to take place ‘after the trade agreement has entered into force, commitments have been phased in and sufficient time has passed to gather a robust body of data and evidence’,153 the purpose of which is ‘to analyse the observed economic, social, human rights and environmental impacts’.154 Thus far, one such evaluation of a trade agreement has been carried out under the Commission’s Better Regulation Agenda,155 relating to an agreement between the EU and South Korea.156 Ex post evaluations for a further three sets of trading arrangements have been earmarked for completion during 2019.157
4.2 Preliminary observations for strengthening the links between ex ante human rights impact assessment and monitoring
There is scope for improvement in the institutional arrangements for monitoring of human rights risks identified in ex ante assessment processes, although there is unlikely to be a ‘one size fits all’ solution. Various factors – such as the structure, scope and aims of the agreement, and the extent to which and way in which different human rights standards are referred to – will likely have a bearing on the monitoring solutions eventually adopted by the state parties. Nevertheless, the remainder of this chapter sets out a few preliminary observations on the structural, organizational and strategic issues that may need more attention in future.
4.2.1 Better institutional and substantive link-up between ex ante and ex post assessment processes
For ex ante assessment processes to be effective and worthwhile, there must be, at a minimum, provision for adequate follow-up of the human rights risks connected with implementation of the trade agreement that are identified as requiring mitigation. This is made difficult where there is institutional compartmentalization: for instance, between the specialists involved in commissioning and overseeing ex ante assessments and those responsible for overseeing implementation of the agreement.158 It is worth considering, therefore, whether there is scope for greater clarity in provisions relevant to implementation monitoring as to the make-up of different institutional mechanisms, for instance in terms of the expertise and institutions required to be represented.
Also worth considering is the extent to which provisions relating to the monitoring of human rights risks could be enhanced in future to include an express requirement for parties to continue to monitor human rights risks identified in the course of ex ante assessment processes. This is not to diminish, however, the political challenges that could arise in relation to findings with respect to extraterritorial human rights risks by one or other of the parties.159 At a more organizational level, it will be important for experiences and insights gained from ex post monitoring processes to be fed back into ex ante processes, to the extent that this is capable of improving the quality of forecasting and analysis in ex ante processes in future.
4.2.2 Strategies for making greater use of pre-signing leverage
Is it possible to make greater use of pre-ratification conditions to ensure that ex ante processes take place, to a mutually agreeable standard and in accordance with a mutually agreed methodology?160 Based on those findings, and the joint review that would ideally follow (see Section 4.2.3 below), it may also be possible at this early stage to secure additional and stronger commitments with respect to future monitoring of human rights risks (see Section 4.2.4 below) to complement the implementation monitoring arrangements for the agreement more generally. This kind of leverage may only exist, however, where there is a demonstrable preparedness on the part of the state parties to move beyond standardized formulations, and to pursue an ambitious set of standards and an ambitious monitoring regime in light of the risks identified.161
4.2.3 Joint ex ante assessments and action plans
As discussed in Chapter 3 above, ex ante assessments that seek to investigate human rights risks within the jurisdiction of the trading partner give rise to significant practical and political challenges. However, there are issues that potentially lend themselves to joint study, such as the human rights impacts of implementation of a trade agreement on cross-border supply chains. Unilateral assessment processes may benefit from structured liaison or joint review processes, for instance to ensure that there is a common understanding with respect to underlying economic assumptions.
Joint ex ante human rights impact assessments potentially overcome the major challenge, described in Section 4.1.3 above, of converting unilateral findings and recommendations into a mutually agreed basis for action. They have the potential to generate, theoretically at least, an agreed action plan that could form the basis for a more robust system of human rights risk monitoring. However, they also require considerable political commitment and resources, and there is a question as to their feasibility in the context of a trade negotiation where, in addition to the inevitable time and political pressures, there are likely to be limits to the information that negotiating parties are prepared to share.
4.2.4 Bespoke approaches to monitoring
Is there scope for more tailored approaches to human rights monitoring in trade agreements to reflect the unique sets of human rights issues likely to be raised in different jurisdictions and in the contexts of specific trading partnerships?162 While standardized approaches have a number of benefits, particularly in terms of predictability, negotiability and ease of administration, they also have disadvantages in that they can prevent parties from making the most of the leverage they possess to negotiate more ambitious terms (see Section 4.2.2 above). A further difficulty with standardized approaches is that they make it difficult to respond to specific items of concern identified in ex ante processes, thus severely reducing, for the reasons discussed above, the usefulness of ex ante processes in policy terms, as well as public confidence in them as a genuine consultative and fact-finding exercise. Bespoke monitoring regimes, on the other hand, informed by a robust ex ante risk assessment process (whether unilateral, joint or a combination of both – see Section 4.2.3), have the potential to greatly improve both the institutional and substantive link-up of different aspects of the risk management cycle (see Section 4.2.1).
4.2.5 More open systems for raising complaints
Although there is provision in trade agreements for mechanisms to enable views and advice to be collected from stakeholder groups, providing a more formalized role for these different groups in the enforcement of aspects of trade agreements relevant to human rights may have positive effects on both the quality of monitoring and on the extent and depth of stakeholder engagement (see further Section 4.2.6 below). The feasibility and negotiability of the inclusion of a more diverse range of complaints and dispute resolution options in trade agreements seem worthy of consideration. In addition to the usual questions relating to ‘standing’ (i.e. the question of which persons and organizations would be entitled to bring a complaint), future work could consider issues of scope (e.g. whether complaints should be confined to issues of compliance with agreement terms, or should extend to other issues such as commitments under human rights action plans) and the optimal dispute resolution methodologies for different types of complaint, drawing, for instance, from mediation as well as more adversarial models.163
4.2.6 Clearer roles for civil society organizations, trade unions and other stakeholders
As noted above, lack of clarity about the role of civil society organizations, trade unions and other stakeholders in the monitoring of human rights-related aspects of trade agreements can undermine effective monitoring of human rights risks in a number of ways. Not only does this affect the ease and efficiency with which information can be shared (and thus increase the cost and resource burden for relevant organizations and stakeholder groups), it also contributes to scepticism about the aims and benefits of these mechanisms and to gradual disengagement by stakeholder groups. The European Commission has expressed a willingness to address this with improved processes and resources, and with a new ‘implementation handbook’ to promote best practices.164 However, a potentially productive new avenue of inquiry might concern the extent to which greater clarity over the roles of different types of stakeholders in relation to human rights risk evaluation and monitoring can be provided in the terms of an agreement itself – for instance, through clearer rights for domestic advisory groups to initiate and participate in dispute resolution processes (see Section 4.2.5 above) and by giving these groups an explicit and proactive role in relation to follow-up of dispute resolution process outcomes.
4.2.7 Towards a comprehensive system of ex post monitoring of human rights risks
As discussed above, the EU approach to human rights and trade has created a monitoring lacuna in respect of human rights risks that fall outside the scope of the TSD chapters. This raises the question of the feasibility of a more comprehensive monitoring arrangement for human rights risks, covering potentially all internationally recognized human rights.165 In principle, such a mechanism could provide the platform for more systematic and robust follow-up monitoring of human rights risks than is possible under trade agreements at present. However, there are a number of legal, practical and structural issues to consider. These include personnel and access to expertise, stakeholder engagement arrangements, the place of such a mechanism in the wider ‘family’ of monitoring and consultative mechanisms provided for under the terms of a particular trade agreement, and its role in the enforcement of human rights-related commitments under the trade agreement (e.g. whether it could receive and consider complaints).
131 The 2011 De Schutter Principles, para 3, p. 8 state that ‘based on the results of the human rights impact assessment, a range of responses exist where an incompatibility is found, including but not limited to the following: (a) Termination of the agreement; (b) Amendment of the agreement; (c) Insertion of safeguards in the agreement; (d) Provision of compensation by third-State parties; (e) Adoption of mitigation measures’.
132 See discussion at Section 3.1.
133 The 2011 De Schutter Principles (2011), para 7.6, p. 15 state that ‘appropriate follow-up should be given to the conclusions and recommendations adopted at the final stage of the impact assessment, by organizing a monitoring and evaluation mechanism assessing the extent to which these conclusions and recommendations were in fact taken into account’.
134 Ibid.
135 Bartels, L. (2014), A Model Human Rights Clause for the EU’s International Trade Agreements, Berlin: German Institute for Human Rights and Aachen: MISEREOR, https://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/Studie_A_Model_Human_Rights_Clause.pdf (accessed 7 Nov. 2018); and Bartels, L. (2014), The European Parliament’s Role in Relation to Human Rights in Trade and Investment Agreements, Brussels: European Parliament Directorate-General for External Policies, http://www.europarl.europa.eu/cmsdata/86031/Study.pdf (accessed 7 Nov. 2018).
136 EU–CARIFORUM Economic Partnership Agreement [2008] OJ L/289/I/3.
137 Harrison et al. (2018), ‘Labour Standards Provisions in EU Free Trade Agreements’.
138 Ibid., p. 7; and Bartels, L. (2012), Human Rights and Sustainable Development Obligations in EU Free Trade Agreements, Cambridge: University of Cambridge Faculty of Law, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2140033 (accessed 7 Nov. 2018).
139 See, for instance, 2008 EU–CARIFORUM Economic Partnership Agreement, Article 189.1.
140 2016 EU–Canada CETA, Article 22.3.3.
141 2011 EU–Korea FTA, Article 13.10.
142 See Box 4 above. A full catalogue of the Commission’s completed SIAs can be found on the Commission’s dedicated web page. See European Commission (undated), ‘Sustainability Impact Assessments’, http://ec.europa.eu/trade/policy/policy-making/analysis/policy-evaluation/sustainability-impact-assessments/index_en.htm.
143 2016 EU–Canada CETA, Article 23.3.1. See also Article 23.3.2, in which the parties commit to promote specific objectives included in the ILO’s Decent Work Agenda; and Article 23.3.4, in which state parties reaffirm their commitments to implement effectively, within their respective jurisdictions, the ILO Conventions which Canada and EU member states have respectively ratified.
144 Orbie, J., Martens D. and Van den Putte, L. (2016), Civil Society Meetings in European Trade Agreements: Features, Purposes and Evaluation, The Hague: The Asser Institute, pp. 30–31, http://www.asser.nl/media/3044/cleer16-3_web.pdf (accessed 7 Nov. 2018).
145 See further Harrison, J., Barbu, M., Campling, L., Richardson, B. and Smith, A. (2018), ‘Governing Labour Standards through Free Trade Agreements: Limits of the European Union’s Trade and Sustainable Development Chapters’, Journal of Common Market Studies, Early View, pp. 1–18, at pp. 10–11, doi: 10.1111/jcms.12715 (accessed 12 Dec. 2018).
146 Harrison et al. (2018), ‘Labour Standards Provisions in EU Free Trade Agreements’, p. 10.
147 2011 EU–Korea FTA, Article 13.10.
148 Harrison et al. (2018), ‘Labour Standards Provisions in EU Free Trade Agreements’, p. 7.
149 See, for example, 2016 EU–Canada CETA, which contemplates (at Article 22.3.3) that ‘the parties may carry out joint assessments’ which are to be ‘conducted in a manner that is adapted to the practices and conditions of each Party, through the respective participative processes of Parties, as well as those processes set up under this Agreement’.
150 See Section 3.2 above.
151 Ibid.
152 See, for example, 2016 EU–Canada CETA, Article 22.3.3. See also 2011 EU–Korea FTA, Article 13.10, which refers specifically to ‘trade-related sustainability impact assessments’.
153 European Commission (2016), Handbook for trade sustainability impact assessment (2nd ed.), p.8.
154 Ibid.
155 See 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 7 Nov. 2018).
156 See European Commission (2018), ‘Countries and regions: South Korea’, http://ec.europa.eu/trade/policy/countries-and-regions/countries/south-korea/ (accessed 7 Nov. 2018).
157 The three sets of trading arrangements prioritized for ex post evaluation during 2019 are the EU’s trade agreement with Peru, Colombia and Ecuador; the Economic Partnership Agreement (EPA) between the EU and its Member States and the CARIFORUM Member States; and the trade chapters of the EuroMediterranean Association Agreements with six Southern Mediterranean partners (Algeria, Egypt, Jordan, Lebanon, Morocco and Tunisia). See European Commission, DG Trade, Management Plan 2018, p. 25, https://ec.europa.eu/info/sites/info/files/management-plan-trade-2018_en.pdf (accessed 18 Jan. 2019). Further information about the European Commission’s programme of ex post evaluations of trade agreements can be accessed via European Commission (2018), ‘Ex post evaluations’, http://ec.europa.eu/trade/policy/policy-making/analysis/policy-evaluation/ex-post-evaluations/ (accessed 15 Jan. 2019).
158 Harrison et al. (2018), ‘Labour Standards Provisions in EU Free Trade Agreements’, pp. 9–10.
159 See further discussion at Section 3.2 above.
160 Harrison et al. (2018), ‘Labour Standards Provisions in EU Free Trade Agreements’, p. 9.
161 Ibid.
162 European Commission Services have signalled an intention to move in this direction. A ‘non-paper’ produced in February 2018 proposes that in future the Commission will seek to: ‘identify, consider and address priorities for each partner country throughout the whole cycle of an FTA, starting with the content-scoping phase of a future agreement. In addition to pursuing the negotiation of a “standard” TSD chapter, this may include further specific issues of relevance for a given partner.’ European Commission Services (2018), Feedback and way forward on improving the implementation and enforcement of Trade and Sustainable Development chapters in EU Free Trade Agreements, Brussels: European Commission Services, p. 7, http://trade.ec.europa.eu/doclib/docs/2018/february/tradoc_156618.pdf (accessed 7 Nov. 2018).
163 Harrison et al. (2018), ‘Labour Standards Provisions in EU Free Trade Agreements’, pp. 19–20.
164 European Commission Services (2018), Feedback and way forward on improving the implementation and enforcement of Trade and Sustainable Development chapters in EU Free Trade Agreements, p. 9.
165 Bartels (2014), A Model Human Rights Clause for the EU’s International Trade Agreements; and Bartels (2014), The European Parliament’s Role in Relation to Human Rights in Trade and Investment Agreements.