5. Conclusion
For some time now, many different actors (including UN agencies and civil society organizations) have been calling for more widespread and more formalized use of ex ante human rights impact assessment of trade agreements. This is seen as a way both to develop policymakers’ awareness of the links between trade policy and the realization of human rights, and to create space and impetus for human rights perspectives to be considered and addressed as part of trade negotiation processes. So far, the European Commission has been the only state-based institution to take up this challenge in earnest, largely as a response to political pressure. The European Commission now routinely requests the preparation of SIAs, which are intended to include an assessment of the human rights impacts of proposed trade agreements (alongside other social, economic, environmental and sustainability issues). However, SIAs have been criticized for failing to provide clear and compelling analyses of the relationships between trade agreements and enjoyment of different human rights, let alone a clear roadmap for policymakers and trade negotiators as to what should be done.
What is needed to move things forward? Human rights impact assessments in this context are complex and costly. Greater uptake is unlikely until the benefits are clear to see, and the lack of tried-and-tested methodologies poses huge challenges for first movers.
As this research paper has shown, a number of challenges associated with ex ante human rights impact assessment of trade agreements are inherent to the exercise, rather than being limited to the facts of any given trade agreement being assessed. These processes are, at present, ill equipped to provide a proper risk analysis of the likelihood of future human rights violations arising from state parties’ implementation of an agreement. This may be due, in part, to a lack of attention in assessment methodologies to the legal implications of different aspects of a particular proposed trade agreement – in particular, the flexibilities provided under ‘public morals’ exceptions; or flexibilities to protect domestic industries. However, even if the problem of lack of legal rigour could be overcome, significant problems would remain due to the difficulties with (and in many cases the impossibility of) forecasting how trade agreements will be implemented in practice – including, importantly, how flexibilities in a trade agreement will be used in practice (and, indeed, the political and economic constraints that will determine how these might be used).
In reality, there are likely to be very few circumstances in which an ex ante human rights impact assessment will be able to determine, with a reasonable degree of confidence, that a proposed trade agreement is bound to result in human rights violations. But this is not the only question posed by human rights impact assessment processes. As this research study has shown, insights into the conditions and trends that could possibly lead to a deterioration in the ability of people to enjoy their human rights (whether or not this may ultimately result in human rights violations) are also of value to policymakers working to develop strategies for mitigation of human rights risks that may flow from new trading arrangements and commitments.
Even so, the inherent difficulties with respect to economic modelling and forecasting, not to mention the time and resources involved in gathering relevant facts and carrying out the necessary stakeholder consultation, suggest a need for greater realism about what ex ante human rights impact assessment can achieve in practice. This is not to suggest that the practice should be abandoned. Although some stakeholder groups have become frustrated with these processes of late, most see value in persevering. Supporters of these processes take the view that, even if the findings involve a degree of speculation, the processes nevertheless have value as a way of drawing attention to issues that might otherwise go unnoticed or unappreciated (such as impacts on particularly vulnerable groups of people, or impacts that are discriminatory between men and women), and of raising awareness among policymakers about human rights issues more generally.
It is important to recognize that human rights impact assessment methodologies are still at an early stage of development. Practitioners readily acknowledge the need for improvement, particularly with respect to improving the quality and comparability of baseline data and developing techniques for more meaningful and effective stakeholder engagement. As this research paper has shown, there are many difficult dilemmas to address in designing a suitable assessment methodology and process – particularly around the timing and transparency of assessment processes against the background of interstate trade negotiations. Time and experience may help to resolve these dilemmas. The experience of the European Commission shows how, with leadership and close cooperation between policymakers and practitioners, improvements in methodologies and processes can be achieved over time.
However, it may be that the real value of ex ante human rights impact assessment ultimately lies not in standalone processes but in providing the groundwork for a much longer-term programme of risk mitigation exercises, ideally based on ongoing and systematic ex post monitoring of human rights risks. At present, this potential is not being realized. This research paper has set out some preliminary observations as to why this may be the case, including lack of institutional or substantive link-up between ex ante and ex post assessment processes, and the challenges in translating the outcomes of unilateral ex ante processes into strategies for joint action by the state parties concerned. The extent to which, and the various ways in which, these challenges might be addressed in the terms of trade agreements themselves are questions that deserve further exploration.