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Summary

  • The idea that trade agreements should be subject to human rights impact assessments has been gathering momentum in recent years. This idea springs from concern – particularly on the part of trade unions and civil society organizations – that states are not presently doing enough to anticipate and address the human rights-related risks associated with, or consequent upon, their trading arrangements with other countries.
  • Proponents of human rights impact assessment of trade agreements argue that these specialized processes can offer perspectives on trade that are not available from other forms of assessment. They can do this, it is argued, by directing attention to a special set of regulatory issues connected to the protection of individual and collective rights and by providing an alternative lens through which to analyse social, economic and scientific data, so shifting the focus from aggregated impacts to impacts on the most vulnerable in society.
  • While these are laudable aims, ex ante human rights impact assessments have struggled to provide compelling analyses of the relationships between trade agreements and the enjoyment of different human rights, let alone a clear roadmap for policymakers and trade negotiators as to what should be done.
  • This research paper considers why this is so. Beginning with a review of developing practice in this area, it goes on to identify a number of significant methodological, political and process-related challenges which will need to be addressed if human rights impact assessment of trade agreements is to emerge as a robust and credible policy tool for states.
  • It is argued that there is a need for greater realism about what ex ante assessment processes can achieve on their own. In reality, the circumstances in which it can confidently be predicted that human rights violations are likely to flow directly from a trade agreement are very few. Even for other possible adverse impacts that might be predicted (which may lead to a deterioration in the ability of people to enjoy their human rights over time), the facts, contingencies and causal links between them 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.
  • Nevertheless, these processes provide a potentially important platform for stakeholder dialogue on trade policy, as well as an evidence-based starting point for longer-term human rights risk mitigation efforts by the states concerned. The paper concludes with some preliminary observations as to how human rights issues identified in ex ante processes might be followed up, either pursuant to the terms of a particular trade agreement itself or through complementary processes.