The consultative and dispute resolution arrangements under the CPTPP, broadly follow the US model (see Figure 2 above). Other agreements, such as Canada’s FTAs with South Korea, Israel and Ukraine, provide for public submissions to be made directly to domestic agencies of state parties about non-compliance with labour chapter provisions, such as commitments to properly enforce laws.
However, as human rights monitoring bodies, these types of consultative arrangements have significant limitations. Their primary purpose is the gathering and exchanging of views on a range of issues connected with the implementation of specific chapters. As such, many of these are perhaps better understood and characterized as an open-ended platform of dialogue (some commentators refer to them as ‘implementation’ bodies) rather than as vehicles for monitoring human rights-related risks in a structured and systematic way. While this flexibility may have its advantages (not least because, as alluded to above, softer dialogue-based processes are likely to be easier to negotiate than a more rigorous human rights monitoring regime) the vagueness of their respective mandates has been the source of criticism, and has arguably undermined their effectiveness in various ways. The limited and relatively weak options for the resolution of disputes under the trade and sustainable development chapters of the EU FTAs, and the inability of DAGs to trigger investigations of human rights related problems on their own initiative are seen as particular disadvantages of the EU approach from a human rights enforcement point of view. At a practical level, a lack of political support and resources, especially in less developed trading partners, mean that these types of arrangements can often fall short of expectations. That said, there is presently a live discussion going on within EU institutions as regards the various ways that the roles and effectiveness of these consultative bodies could potentially be strengthened. We will return to consider the question of whether these types of consultative bodies could (and should) take up a more concrete and focussed future role in relation to human rights monitoring in Chapter 4 below.
2.2 Periodic evaluation exercises under the terms of FTAs
A form of human rights monitoring is arguably mandated under the provisions of trade agreements relating to the periodic evaluation of the implementation of sustainable development chapters and the progress parties have made with respect to specific objectives.
For example, the ‘trade and sustainable development’ chapter of the EU–Canada CETA commits the parties ‘to review, monitor and assess the impact of the implementation of this Agreement on sustainable development in its territory in order to identify any need for action that may arise in connection with this Agreement’. This may include carrying out ‘joint assessments’, which, according to the wording of the treaty, are to be ‘conducted in a manner that is adapted to the practices and conditions of each Party, through the respective participative processes of the Parties, as well as those processes set up under this Agreement.’
Similar provisions appear in other FTAs to which Canada is party. The ‘labour, environment and gender’ chapters of the 2019 Canada–Israel FTA all either envisage or mandate ex post evaluation exercises to take place for the purpose of checking the implementation of the specific chapters in question. For instance, the joint Labour Ministerial Council (the joint body established to oversee the implementation of the labour chapter of that agreement), is required to ‘review the operation and effectiveness of [the labour chapter] including the degree to which progress has been made in implementing the objectives of this Chapter, within five years after the date of entry into force of this Agreement and thereafter within any other period directed by the Council’. The joint body responsible for overseeing the implementation of the gender chapter of that agreement has more flexibility, however, required only to ‘consider undertaking a review of the implementation of [the ‘trade and gender’ chapter], with a view to improving its operation and effectiveness, within five years of the entry into force of this Agreement, and periodically thereafter as the Parties decide’. These types of evaluation exercises are periodic rather than ongoing, and a five-year interval between evaluations, commencing five years after commencement of the agreement, seems to be emerging as the norm.
2.3 Bespoke or supplementary arrangements under a side agreement or MoU
Examples exist of cases where trading partners have found it beneficial to augment their agreement terms with a side arrangement relating specifically to monitoring, most commonly of labour issues. The bilateral ‘consistency agreements’ negotiated by the US with several CPTTP partners, prior to its withdrawal from the original Trans-Pacific Partnership (TPP) are worth noting in this context. These bilateral side agreements envisaged a bilateral Senior Officials Committee (SOC) to monitor, assess and facilitate responses on the compliance and implementation of the Consistency Plan (which included adherence to international labour standards).
Further examples of the use of side agreements to strengthen human rights-related consultative arrangements can be found in the Canadian and New Zealand practice of seeking ‘Labour Cooperation’ agreements with trading partners. Under these arrangements, each party is required to nominate national contact points to serve as points of liaison in relation to the side agreement. The side agreement also establishes a joint ‘Labour Committee’, which is mandated to review the operation and outcome of the cooperative agreements, establish working groups on specific issues. The agreements also provide for the possibility of civil society consultation by the parties, albeit on a voluntary basis.
Several countries, including New Zealand, the US and Canada have also utilized Memorandums of Understanding (MoU) on labour issues with certain trading partners, such as China, requiring both parties to appoint a coordinator who organizes a joint session every two years to oversee implementation.
As can be seen, there are various ways of formalizing and recording such side arrangements, although a binding side agreement or treaty protocol clearly offers more by way of legal certainty and stability than a non-binding MoU. Each of the above examples are directed towards the establishment of joint arrangements and mechanisms relevant to monitoring. However, a rare example of a side agreement that established a reciprocal system of human rights monitoring was the 2010 special agreement between Canada and Colombia, ancillary to the Canada–Colombia FTA (CCOFTA). Under this agreement, each state agreed to produce annual reports on the effect of actions taken under the CCOFTA on human rights in both countries. To this end, each party agreed to conduct a human rights impact assessment in relation to the effects of the agreement not only in its own territory but also in the territory of the other party. However, while ambitious and innovative in its design, the practical implementation of these arrangements has since been criticized as a ‘lost opportunity’ on the basis of methodological problems and lack of political commitment to the process.
2.4 Miscellaneous cooperative follow-up activities
Human rights monitoring could also potentially come within the scope of a range of follow-up activities, which, if not mandated, may still be recommended or anticipated by trading partners to enhance human rights outcomes and to advance the human rights-related goals that may be associated with the agreement.
An example of this type of provision can be found in the labour chapter of the Canada–South Korea FTA, which provides that ‘parties may initiate cooperative labour activities’. This can include ‘policy issues of common interest and their application’, and ‘such other matters as the Parties may agree’ through information-sharing, joint research projects, collaborative projects or ‘other forms of technical exchanges or cooperation’. The labour chapter of the Canada–Israel FTA contemplates future cooperative activities including ‘a joint plan of action’. Under the ‘trade and gender’ chapter of the same agreement the parties commit to ‘develop programs of cooperative activities based on their mutual interests’ the aim of which will be ‘to improve the capacity and conditions for women, including workers, businesswomen and entrepreneurs, to access and fully benefit from the opportunities created by this Agreement’.
While loose commitments like this may not provide a very strong indication of what the trading partners actually intend (and indeed loose and flexible language may have been favoured precisely because firmer commitments were simply not negotiable) the activities envisaged under these types of ‘enabling’ or ‘framework’ provisions could provide (given the necessary political interest and will) the springboard and inspiration for parties to subsequently develop a more robust set of arrangements for monitoring human rights aspects of a trade agreement’s implementation, which could potentially be formalized, as noted above, by way of a side agreement or MoU.
2.5 Unilateral ex post evaluations and reviews
The EU’s approach to ex post sustainability monitoring of trade agreements deserves special mention here, being arguably the most ambitious system for monitoring the human rights implications of trade agreements developed by a trade actor thus far. It has its roots in the European Commission’s ‘Better Regulation Agenda’, which reaffirms a policy commitment to ‘evaluate in a proportionate way all EU spending and non-spending activities intended to have an impact on society or the economy’. The Commission’s stated aim is for ‘ex post evaluations’ of trade agreements to take place after ‘commitments have been phased in and sufficient time has passed to gather a robust body of data and evidence’, the purpose of which is ‘to analyse the observed economic, social, human rights and environmental impacts’.
Two ex post evaluations of FTAs have been completed under this strategy thus far – one for the EU–Mexico FTA in 2017, and one for the EU–South Korea FTA in 2018. Ex post evaluations currently in progress include those for the CARIFORUM Economic Partnership Agreement (launched July 2018), EU–Columbia/Ecuador/Peru (launched February 2019), six EU–Mediterranean Agreements (launched November 2017), EU–Central America Association Agreement (launched May 2019) and EU’s Deep and Comprehensive Free Trade Area Agreements with Georgia and Moldova (launched February 2020). A comparison of the two completed ex post evaluations for FTAs shows some development as far as the execution and presentation of the human rights aspects of the study are concerned, with more detailed treatment of human rights issues, a more detailed screening exercise, greater use of human rights indicators to track movements and trends, a more granular investigation of the impact of the agreement on different sectors, a greater focus on potentially vulnerable groups (e.g. migrant workers) and a dedicated human rights chapter, in the more recent report.
The methodologies used comprise, broadly speaking, a mix of qualitative and quantitative analysis, drawing from economic modelling, statistical analysis, reports by international monitoring bodies, academic research sources and stakeholder engagement exercises (including surveys, meetings, case studies and interviews) to help build up a picture of the economic, social, human rights and environmental situation up to the point at which an FTA is signed and then subsequently the extent to which observed changes may be attributable to the FTA. From this, an assessment is made as to the sectors, activities and groups that have benefited, and also which have been negatively affected, and the possible reasons for this.
The potential challenges and limitations of unilateral ex post human rights evaluations of this kind are considered further in Chapter 4. For the time being, however, it is worth observing that, while it is clear that the Commission’s ex ante sustainability impact assessment processes and its ex post evaluation programme have common policy underpinnings, the methodological linkages between these two initiatives are not clear at all. As noted above, treating ex ante and ex post processes as linked, rather than separate, activities can help to strengthen both, not only in terms of building understanding of causal relationships and impact trajectories, but also by creating opportunities for lessons learned from observing how impacts materialize and are experienced in reality, which can then be applied towards improving impact assessments processes and implementation of FTAs, as well as to inform subsequent negotiations.
The significance of these linkages may become clearer as practice develops and the Commission’s programme of ex post evaluations of trade agreements becomes more established. However, it may be some years before consultants hired to carry out ex post evaluations of the sustainability impacts of EU trade agreements have the opportunity to review the accuracy of predictions made in the human rights sections of ex ante sustainability impact assessments (SIAs) in a detailed and systematic way. While most of the EU FTAs currently flagged for ex post evaluation had been subjected to an ex ante SIA only one of these (the EU’s agreements with Georgia and Moldova) had been subjected to an ex ante SIA that included an explicit focus on human rights. In the meantime, the rapid development of human rights impact assessment methodologies makes it reasonably likely that future ex post evaluation practitioners may have access to techniques and even technologies not available to their ex ante counterparts, raising some potential issues with respect to comparability of data and findings.
2.6 Monitoring as an outcome of complaints or dispute resolution processes
Finally, it is important not to overlook the possibility that human rights monitoring could potentially be mandated or recommended as an outcome of various dialogue-based processes, or dispute resolution processes, instigated in the event that one (or more) of the parties wishes to raise a potential implementation or compliance issue with another party (or parties). For example, the ‘trade and labour’ chapter of the CPTPP envisages the possibility of ‘action plans’ as an outcome of a ‘request for dialogue… which may include specific and verifiable steps, such as on labour inspection, investigation or compliance action, and appropriate timeframes’ or, as an alternative to an action plan, ‘the independent verification of compliance or implementation by individuals or entities, such as the ILO [International Labour Organization], chosen by the dialoguing Parties.’
