Human rights monitoring has a vital role to play in making trade policy more responsive to human rights needs in future. Although establishing robust monitoring systems can be challenging, there is a growing body of state practice on which to build.
Without robust human rights monitoring systems, state parties to trade agreements have little chance of being able to tell for sure whether human rights commitments made in the context of trade agreements have been met, whether human rights benefits of trade relationships are being maintained and fairly shared, whether the trade agreement is contributing to improving or worsening human rights situations, or whether steps taken to mitigate risks are working as they should.
However, while there are a range of ways in which human rights monitoring mechanisms, of both generalized or specialized kinds, could conceivably be integrated into the terms of trading relationships – and although the obstacles to devising further bilateral or multilateral regimes and systems in support of robust human rights risk management and analysis would not appear to be insurmountable – opportunities to advance human rights standards and compliance through these methods are rarely taken up. The advances that have been made thus far have tended to be cautious and limited in scope. Although it is possible to point to progressive improvements to human rights monitoring in the context of GSP schemes, there seems little appetite among trade actors to explore ways of applying this learning to the FTA context.
In the context of human rights monitoring of FTAs, there are a particular set of structural problems that create monitoring lacunae for human rights issues that do not fall within the scope of interests of specialist chapters of trade agreements (typically relating to labour, environment or sustainable development). The very flexible terms of reference provided to the bodies that are established under these agreements have contributed to a general and growing feeling among stakeholders that these are ‘window-dressing’ schemes or ‘talking shops’ rather than ones with real policy impact. In some contexts (compliance reviews under GSP programmes for example), administering states have the advantage of considerable leverage. While this has been shown to lead to positive human rights outcomes in some cases, it is important to be mindful of the possibility that this form of monitoring, in this particular context, can take on the colour of a coercive activity from the perspective of the beneficiary state, potentially undermining prospects for collaborative problem solving.
The uncertain relationship between monitoring and enforcement can make productive cooperation and dialogue either more or less likely, depending on the political and economic drivers at work. For the processes that seek to track human rights risks connected with the trade agreements itself (and the effectiveness of measures taken to address them), the sheer number of human rights issues and implications that could be relevant, the range of different stakeholder groups with a potential interest in these issues, and the difficulty of tracking impacts back to specific trade agreements, pose significant methodological challenges. On top of this, there is a risk of an emerging double standard as regards the countries and issues selected for the closest scrutiny (the focus typically being on less developed trading partner or third countries), which both feeds off and also serves to reinforce the misconception that trade agreements pose risks for developing countries and benefits for richer, more powerful countries. The human rights picture is actually far more mixed.
Addressing these problems will not be easy. As this research paper has shown, there are considerable structural, political and resources-related challenges standing in the way of more systematic, coherent, meaningful, fair and effective human rights monitoring in this context. However, there are a number of lessons to be drawn from experiences thus far that can help us to sketch out the contours of more effective monitoring mechanisms for the future. A key lesson we can draw is that human rights monitoring bodies need purpose, direction and support from governments. Setting up bodies with vague, open-ended mandates has not served to empower stakeholders – quite the contrary. Human rights monitoring does not take place in a vacuum, but against a backdrop of standards, commitments and previously identified risks. The more specific the relevant standards and commitments are – and the better understood the relevant risks – the more effective these monitoring activities are likely to be.
