While human rights impact assessment of trade agreements is becoming more established as a policy tool, the role that ongoing monitoring could play has received much less attention.
1.1 Trade and human rights: an intensifying debate
The human rights impacts of trade and investment agreements – and the measures needed to address them – continue to be hotly debated. There seems little doubt that trade liberalization has many potential human rights benefits; for instance, through the economic gains and increased job opportunities that come from greater and fairer access to export markets, and through reduced consumer prices and greater availability of basic goods and services.
On the other hand, civil society organizations (and those engaged in human rights, environmental and anti-poverty campaigning in particular) have long expressed concerns that the negotiation and implementation of trade agreements have privileged economic considerations and corporate interests over human rights and environmental protections. These concerns have intensified of late, with the desire of major trading powers to broaden their relationships beyond addressing tariffs and quotas to increasingly cover non-tariff barriers to trade, regulatory cooperation, trade in services and investor protection. These ‘new generation’ trade agreements therefore have potential repercussions for the regulation of many aspects of day-to-day life, and to a much greater degree than their less ambitious predecessors. In particular, some commentators have drawn attention to the possibility that the extended coverage of these more recent trade agreements ‘increases the risk that these agreements will interfere with the regulatory space’ of trading parties to respond to domestic human rights and environmental challenges. This, along with the intense public debate taking place at present about the advantages and disadvantages of different types of trading arrangements for a range of social, environmental, health and welfare related issues, is fuelling demands for more transparency from governments as regards the way that trade policy is formulated and developed.
At the same time, the COVID-19 crisis, and its economic fallout, has begun to shape discussion about the human rights implications of trade policy in other ways. As well as raising public awareness and concern about the consequences of inequality and poverty at a local level, it has highlighted the inequalities and power imbalances that exist between countries themselves. Heightened awareness of the interconnectedness of economies and the importance of well-functioning food supply chains has also helped to draw attention to the poor working conditions of many of the people who work in them. The roll-out of desperately needed vaccines has provoked reflection on the lack of access to medicines in many countries, and the common interest in ensuring that these problems are resolved. As governments around the world confront the enormity of rebuilding their economies in the wake of the crisis, calls from UN agencies and international organizations to ‘build back better’ have been accompanied by demands from a range of actors, both state and non-state, for a renewed focus on strategies to achieve greater alignment between trade policies and sustainable development goals.
The growing prevalence and prominence of provisions in trade agreements relating to sustainable development, human rights and good governance suggest that governments have been receptive to arguments about the need for trade policy to both advance and safeguard core values. Mutual commitments in trading agreements affirming respect for human rights, which are intended to provide for the possibility of trading consequences in the event of serious breaches, are now a standard feature of EU agreements. Over time, parties have made space in their trading agreements for special chapters on particular issues of concern, such as ‘trade and labour’ or ‘trade and the environment’ and, more recently ‘trade and gender’. As is discussed in more detail in Chapter 2 below, these chapters provide for the establishment of consultative bodies that enable concerns about human rights related issues (primarily labour and environmental issues at present) to be aired and discussed.
However, human rights advocates and commentators have argued that these kinds of provisions may not sufficiently address all of the potential human rights consequences of the agreements in question. To better address these risks, and to strengthen approaches in future, UN agencies, civil society organizations and some trade policymaking bodies and experts have been recommending that prospective trading partners perform detailed and systematic human rights impact assessments before the relevant trading agreements are signed. Thus far, these calls have been answered most decisively by the European Commission, which since 2012 has extended its sustainability impact assessment processes to include human rights issues arising from trade agreements.
While various challenges associated with ex ante human rights impact assessment of trade agreements have been well studied and discussed, the structural, political and practical issues surrounding effective ex post monitoring of human rights issues connected with trade agreements (i.e. once the trade agreement has entered into force) have received less attention. The aim of this research paper is to build on previous Chatham House research into ex ante human rights impact assessment with a more detailed exploration of the various contexts in which ex post human rights monitoring is done, the methodologies used, and the extent to which there may be scope for improvement. As discussed below (in chapters 2 and 3), human rights monitoring of trade agreements can take a range of different forms, depending on the available mechanisms and resources and prevailing policy objectives. These insights are then applied to the more future-oriented question of whether there is scope for improvement of human rights monitoring of trade agreements, noting the distinctive issues and challenges that arise depending on whether the monitoring activities are carried out unilaterally, or pursuant to the trade agreement itself, or through complementary processes, or as part of some broader joint programme of action (Chapter 4). The paper concludes with some final observations as to ways that policymakers could potentially work towards greater fairness in the manner in which human rights impacts of trade agreements are scrutinized and monitored, and greater coherence between the various processes that are aimed at ensuring that human rights-related risks are properly identified and tracked over time (Chapter 5).
1.2 What do we mean by human rights monitoring of trade agreements?
Human rights monitoring is used in a range of contexts to keep track of the various effects – both positive and negative – that different kinds of activities or economic interventions may be having on people’s enjoyment of their human rights. It may be used, for example, by an international organization to monitor the human rights impacts of a development programme, by a regulatory body to track the performance of a regulatory initiative against a series of human rights-related goals, or by a business enterprise for the purposes of ensuring that human rights risks associated with an investment are being properly addressed and mitigated.
In its broadest sense, human rights monitoring can be defined as the active collection, verification and analysis of information relating to human rights situations and problems. While methodologies will vary depending on the context and need, information-gathering and analysis are the two core components. The information-gathering part of the work may involve desk-based research, interviews, field work, online surveys, academic research, and stakeholder meetings and discussions. The analytical part of the work may draw from a variety of techniques, including economic modelling, causal chain analysis, analysis of quantitative and qualitative indicators, case studies and expert input and interpretation. Whatever information gathering and evaluation methods are used, human rights monitoring is fundamentally concerned with observation; of events, of incidents, of progress in advancing human rights and addressing human rights challenges, and of the effectiveness of steps to address different forms of human rights related risks.
When carried out by states, human rights monitoring may be carried out to ensure compliance with the relevant state’s international legal obligations, to ensure that that minimum standards or commitments are observed or that the goal of progressive realization of human rights (an obligation that refers to economic, social and cultural rights in particular) is being met, or a combination of these. Thus, in this context, each state needs to adjust the focus of its monitoring exercises to reflect the nature of human rights-related risks that have been identified, in light of the prevailing economic, social, cultural and other factors, as well as any human rights commitments made in trading agreements and elsewhere.
This research paper is concerned with the various forms of human rights monitoring that take place between trading partners in the context of a trading relationship. While the primary focus of this paper is on monitoring activities that are either led by, or instigated by, state bodies (e.g. ministries, regulatory bodies, advisory committees etc.), this is not to overlook the vital role played by a range of non-state actors – and civil society organizations and trade unions in particular – in promoting understanding of the human rights consequences of trade agreements and their implementation. As will be discussed further in this paper, the active involvement of these different stakeholder groups is an essential factor in a human rights monitoring system’s performance and impact. Effective monitoring systems will therefore seek to facilitate a two-way dialogue between the relevant authorities and stakeholders; enhancing transparency and creating opportunities for direct feedback by members of the public about the social, environmental or human rights impacts of the agreement in question and progress towards realizing the human rights-related goals that may be significant in the context of that trading relationship.