Trade agreements in the 21st century: a tool for mainstreaming human rights?

The ongoing paralysis of the dispute settlement system of the World Trade Organization (WTO), added to the failure to reach an agreement in the Doha Round since 2001, have urged States to turn to bilateral and regional free trade agreements as a realistic means to strengthen the rules-based multilateral trading system. These “free trade agreements (FTAs)” have increasingly begun to be called “economic partnership agreements (EPAs)”, since they go beyond just mere market-opening agreements, to include other areas such as intellectual property and competition, and more interestingly, human rights, whereas for a long time, these agreements had been considered to be on the opposite spectrum, as a hindrance to the protection of such rights.

For example, the European Union (EU), one of the leading actors in this domain, has been trying to link human rights with trade liberalization[1] by introducing “human rights clauses (HRC)”[2], mainly comprised of two elements: the “essential elements” clause, which provides that democratic principles, human rights, and fundamental freedoms shall form the basis of the agreement, and the “appropriate measures” clause, which allows either party to adopt appropriate measures, namely, the suspension of obligations under the agreement, in the event that the other party violates these essential elements.[3] This clause can be considered to form part of the EU’s strategy of “reproducing the negotiated instrumental framework from one agreement to another so as to develop a relatively uniform regime”[4] on human rights within the context of international trade.

Other EPAs signed by the EU or by other countries[5], include chapters or provisions which do not necessarily use the term “human rights”, but are nonetheless linked to human rights-related objectives. Examples include commitments on the protection of labor rights, indigenous and cultural rights, or the environment, often with references to relevant multilateral instruments[6], as well as the establishment of a specific procedure involving an independent group of experts, which may submit a report to parties, possibly with recommendations, in case of noncompliance.[7]

Despite these recent developments, however, criticism against EPAs remains. To begin with, not all trade agreements incorporate commitments on human rights, including the newly-signed Regional Comprehensive Economic Partnership (RCEP) Agreement of November 2020. In addition, the majority of countries committing serious human rights violations are not participants of EPAs.[8] Other critics consider human rights-related provisions in EPAs to be insufficient, since the sovereignty of States remains strong with no monitoring mechanism possessing legally-binding powers or individual complaints procedures, motivations in including such provisions having “more to do with politics and other considerations than with a genuine concern for a positive human rights outcome”.[9] In practice, the EU has never suspended trade preferences under an EPA containing a HRC to date, despite a number of party states with problematic human rights records, which shows the weakness of these provisions. What’s more, these provisions do not fundamentally change the neoliberal logic of these agreements, only serving to “deodorize rotten agreements”.[10] Opponents with a different perspective claim that these provisions are a form of “legal inflation”, which governments use to impose their values and norms in an attempt to globalize their social policies and regulatory approach[11], by exploiting the inequality of bargaining power between developed and developing countries.

Trade agreements in the 21st century both promote and undermine the protection of human rights. Despite the critiques mentioned above, the potential of human rights provisions in EPAs in opening the path to constructive dialogue and cooperation on the issue shouldn’t be neglected nonetheless. Human rights are an important prerequisite for sustainable development, and trade agreements shouldn’t be an exception to the recent trend to mainstream human rights in various regimes. Emergence of EPAs which have managed to go beyond the simple logic of free trade, in incorporating human rights language, is an important first step forward. The next step, therefore, is to improve the current model of EPAs to include more ambitious content and to enable a more robust use of such provisions, so that a more balanced and regulated vision of globalization can be pursued, in accordance with human rights norms.


By Liya ALIEVA, Alice KENNEDY, Hind MGHARFAOUI and Yuma YAMAMOTO

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REFERENCES

[1] The EU has taken steps to ensure that its fundamental values, such as democracy, human rights, and the rule of law, are reflected in its external action, including its trade policy. This is in line with the “Common Approach on the use of political clauses” agreed by Committee of the Permanent Representatives of the Governments of the Member States to the European Union (COREPER) in 2009. [2] For standard formulations of the human rights clause in international EU agreements, see Ionel Zamfir, Human rights in EU trade agreements: The human rights clause and its application, European Parliamentary Research Service (ERPS), July 2019, accessible here. [3] According to the EU, the legal basis of the HRC is found in Article 60 of the 1969 Vienna Convention on the Law of Treaties, entitled “Termination or suspension of the operation of a treaty as a consequence of its breach”. [4] Alan Hervé, The European Union and its model to regulate international trade relations, Robert Schuman Foundation, April 14, 2020, accessible here. [5] Namely, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP11 Agreement). [6] Examples include the International Labor Organization (ILO) conventions, the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol, or the Paris Agreement. [7] The EU, for example, triggered this mechanism against South Korea, stating that the country had breached its obligations under Article 13(4) of the EU-South Korea FTA, failing to respect the freedom of association. [8] Meredith K. Lewis, Human Rights Provisions in Free Trade Agreements: Do the ends justify the means?, Loyola University Chicago International Law Review, January 2014, accessible here. [9] Ibid. [10] Joseph Purugganan, Trade and Investment Agreements and Human Rights, Focus on the Global South, October 18, 2019, accessible here. [11] Ibid.


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BIBLIOGRAPHY


Articles and documents

Council of the European Union, Common approach on the use of political clauses, 10491/1/09 REV 1 EXT 2 (June 2, 2009), accessible online: https://data.consilium.europa.eu/doc/document/ST-10491-2009-REV-1-EXT-2/en/pdf#:~:text=The%20EU's%20approach%20towards%20the,%2Dvis%20third%20countries%3B%20%2D%20strengthening [accessed on November 28, 2021]

Directorate-General for External Policies of the Union, Human rights provisions in EPAs in light of the expiry of the Cotonou Agreement in 2020, European Parliament, April 4, 2017, accessible online: https://op.europa.eu/en/publication-detail/-/publication/625a2a32-19c4-11e7-808e-01aa75ed71a1 [accessed on November 26, 2021]

Hervé, A., The European Union and its model to regulate international trade relations, Robert Schuman Foundation, April 14, 2020, accessible online: https://www.robert-schuman.eu/en/european-issues/0554-the-european-union-and-its-model-to-regulate-international-trade-relations [accessed on November 15, 2021]

International Institute for Labour Studies, Social Dimensions of Free Trade Agreements, International Labour Organization (ILO), November 6, 2013, accessible online: https://www.ilo.org/wcmsp5/groups/public/---dgreports/---inst/documents/publication/wcms_228965.pdf [accessed on November 26, 2021]

Joint Committee on Human Rights, Written Evidence: Human Rights Protections in International Agreements, HIA0005 (January 11, 2019), accessible online: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/human-rights-committee/human-rights-protections-in-international-agreements/written/94844.pdf [accessed on November 22, 2021]

Lewis, M. K., Human Rights Provisions in Free Trade Agreements: Do the ends justify the means?, Loyola University Chicago International Law Review, January 2014, accessible online: https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1169&context=lucilr [accessed on November 23, 2021]

Matsuyama, K., Jiiyuu boueki kyoutei (FTA) ni fukumareru roudou kankyou jyoukou no jyunshu kakuho tetuzuki no tokuchou [The characteristics of procedures ensuring compliance on provisions concerning labor and environment within free trade agreements (FTAs)], Financial Review, September 2019, accessible online: https://www.mof.go.jp/pri/publication/financial_review/fr_list7/r140/r140_05.pdf [accessed on November 25, 2021]

Ministry of Foreign Affairs of Japan, Wagakuni no keizairenkei tou no torikumi [Japan’s efforts on economic partnership agreements and others], Ministry of Foreign Affairs of Japan, November 17, 2021, accessible online: https://www.mofa.go.jp/mofaj/gaiko/fta/index.html [accessed on November 28, 2021]

Purugganan, J., Trade and Investment Agreements and Human Rights, Focus on the Global South, October 18, 2019, accessible online: https://focusweb.org/trade-investment-agreements-and-human-rights/ [accessed on November 15, 2021]

Scimia, E., EU-Singapore trade agreement: human rights in the spotlight (may be), bilaterals.org, November 23, 2019, accessible online: https://www.bilaterals.org/?eu-singapore-trade-agreement-human&lang=en [accessed on November 16, 2021]

Smith, C., Human Rights and Trade Deals: Debate on 3 October 2019, House of Lords, September 5, 2019, accessible online: https://researchbriefings.files.parliament.uk/documents/LLN-2019-0117/LLN-2019-0117.pdf [accessed on November 22, 2021]

United Nations, Trade agreements should mainstream human rights - UN expert urges, UN News, September 13, 2016, accessible online: https://news.un.org/en/story/2016/09/538832-trade-agreements-should-mainstream-human-rights-un-expert-urges [accessed on November 16, 2021]

United Nations Office of the High Commissioner for Human Rights, UN experts voice concern over adverse impact of free trade and investment agreements on human rights, accessible online: https://www.ohchr.org/FR/NewsEvents/Pages/DisplayNews.aspx?NewsID=16031&LangID=E [accessed on November 16, 2021]

Zamfir, I., Human rights in EU trade agreements: The human rights clause and its application, European Parliamentary Research Service (ERPS), July 2019, accessible online: https://www.europarl.europa.eu/RegData/etudes/BRIE/2019/637975/EPRS_BRI(2019)637975_EN.pdf [accessed on November 15, 2021]


Agreements

Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP11 Agreement) (March 8, 2018)

Cotonou Agreement (June 23, 2000)

EU-South Korea Free Trade Agreement (October 6, 2010)

Regional Comprehensive Economic Partnership (RCEP) Agreement (November 15, 2020)

Vienna Convention on the Law of Treaties (May 23, 1969)

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