Rebuilding Trust in Trade: Is Human Rights Impact Assessment the Answer?

Aerial view of farmers covering corn seedlings with plastic film at a field in Suining, Sichuan Province of China. Photo: Getty Images
Aerial view of farmers covering corn seedlings with plastic film at a field in Suining, Sichuan Province of China. Photo: Getty Images

The long-settled consensus about the division of responsibilities for domestic trade policy appears to be shifting. Once largely the prerogative of governments, parliamentarians and the public are now demanding a greater say. In the UK, the imminence of Brexit means that the debate about how decisions about trade policy are taken – and by whom – is one of considerable urgency.

Public concern about these issues is not confined to the UK. Activism around the negotiation of the EU-Canada CETA and the (parked for now) EU-US TTIP has evolved into a vigorous public debate about whether these ambitious ‘new generation’ trade and investment treaties, and their provisions on non-tariff barriers in particular, leave enough space for governments to respond to domestic social, environmental and human rights challenges down the road.

Recent political events – the Brexit vote in the UK, the election of Donald Trump as president of the US, and the rise of populist politics on the European continent and elsewhere – are viewed by many as evidence of a ‘backlash against globalization’. Even if globalization is a generally positive project from the perspective of development, poverty reduction and promoting human rights, there are undoubtedly winners and losers, with the benefits and burdens of trade arrangements often unfairly spread.

Against this background, governments are being urged – by UN agencies and civil society organizations in particular – to do more to understand the human rights impacts of trade agreements before they are signed.  These impacts will obviously vary depending on the political and regulatory context (as well as the terms of the agreement itself), but examples may include reduced access to medicines as a result of new patent protections, or job losses (as a result of foreign competition) that disproportionately affect women.

A considerable amount of effort has been invested – by assessment practitioners, NGOs, academics, UN actors, and some governmental bodies (most notably the European Commission) – in developing methodologies for identifying the human rights-related consequences of trade agreements so that the states concerned can take early action to address them.

Outside the EU, though, the idea is not exactly catching on (at least as far as governments are concerned).  There are a number of reasons for this. The relative novelty of these processes is likely to be a factor.  However, a more fundamental problem, highlighted in a recent Chatham House research paper (by this author), is that human rights impact assessments seem to be struggling in practice to deliver the benefits claimed for them.

The difficulties in anticipating, with any degree of confidence, which human rights impacts might materialize, let alone of drawing clear causal links between future impacts and the trade agreement itself (as opposed to, say, other economic shocks or political choices made by the relevant state) present significant methodological challenges.

Furthermore, there is no getting away from the fact that these kinds of processes are expensive. Identifying, let alone consulting meaningfully with, individuals and communities likely to be affected is an enormous challenge, especially where the assessment process covers (as the EU processes often do) human rights impacts in the partner country as well as those domestic in nature.  While new technologies can help make this more manageable, this is only ever a partial solution, especially for vulnerable or hard to reach communities.

Then there are questions relating to the fairness of the process.  Representative-type approaches (in which individuals or organizations are selected to represent the needs and interests of others) inevitably raise questions about who has been selected and why.

Hovering in the background of all discussions about parliamentary and public participation in trade policy is the fact that these processes take place in the context of often extremely challenging and complex negotiations.  Identifying the ‘goldilocks’ moment for an assessment – not too early that the parameters are too vague for a meaningful discussion, and not too late for negotiators and decision-makers to be able to respond in a meaningful way – is a further challenge.

As EU experience has shown, the appropriate balance between transparency and maintaining effective negotiating strategies is a contested one, and often elusive.

Nevertheless, despite present scepticism of the value of human rights impact assessment as a legal compliance tool, there are other potential benefits. In the UK, the House of Commons Committee on International Trade is pressing for pre-project impact assessment of trade agreements as part of a package of measures aimed at improving transparency and public participation in trade policy.

On 6 March 2019, the UK House of Lords voted in amendments to the UK Trade Bill to strengthen public and parliamentary scrutiny of future trade agreements, which would make pre-project ‘sustainability impact assessment’ a statutory requirement.

In the UK, as elsewhere, a shift towards greater transparency and inclusivity may be helpful in rebuilding trust in the way we trade.  However, as our research into human rights impact assessments of trade agreements has shown, conducting meaningful stakeholder consultation during trade negotiations poses numerous practical challenges and dilemmas.  And pre-agreement assessments will only ever provide a snapshot of a point in time.

It may be that the real value of human rights impact assessment lies not in stand-alone processes, but as the first step of a much longer risk monitoring and mitigation plan.

Dr Jennifer Ann Zerk, Associate Fellow, International Law Programme.

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