On 26 February, I chaired a discussion at Chatham House in London on human rights impact assessments (HRIA) of trade agreements. The basis for the discussion was a report authored by Dr. Jennifer Zerk, Chatham House Associate Fellow in the International Law Programme. This important report very usefully outlines the substantial challenges of carrying out HRIAs of whole trade agreements in a manner that yields useful data that can convincingly help policymakers design trade agreements that embed respect for human rights and protect the most vulnerable members of society.
Despite the thrust of the report, which was demonstrating the weaknesses in using HRIAs for whole trade agreements, Dr. James Harrison of the University of Warwick School of Law provided several examples of successful HRIAs where they have helped policymakers understand the impacts of trade provisions. However, as he clearly pointed out, those successful assessments have all been carried out in very specific contexts regarding either one set of trade provisions or a specific government measure. Additionally, successful HRIAs have often looked at a subset of human rights issues over time.
Richard James, the Evaluation Co-ordinator for the Directorate-General for Trade of the European Commission, described the evolution in the thinking at the Commission and some ways forward to improve the actual impact of the assessments being carried out. As of yet, however, there seems to be little evidence that the results of the impact assessments being carried out at EU level have directly influenced the formulation of trade policy.
In my view, ex ante HRIAs of an entire trade agreement just cannot deliver the kinds of data that can effectively help design human rights compliant trade policy. Consider just these three challenges:
- HRIAs cannot address investment parts of trade agreements: Increasingly trade agreements contain investment chapters. Investment chapters are very different in substance to trade agreements. Whereas in trade you may have a specific provision that allows you to see how government will change a very specific policy, in investment chapters you generally have broad “investor protection” clauses that do not tell you much in and of themselves about what will be the de facto results of that agreement until applied to a specific investment. Ex ante HRIAs of investment chapters therefore will not yield useful results as causal links to impacts are too tenuous. This means HRIAs are simply not able to deliver useful feedback on the investment portions of new trade agreements. [Human rights advocacy around investment agreements has in recent years focused on eliminating Investor State Dispute Settlement (ISDS) and integrating human rights clauses. While unrelated to this blog, in past articles Andrea Saldarriaga and I have challenged these approaches.]
- HRIAs do not show changing impacts over time: Zerk acknowledges that one of the weaknesses of HRIAs, as currently carried out, is the lack of monitoring of impacts over time. HRIAs essentially give you a photograph, when what is needed is a full-length feature film. Assuming, for the sake of argument, that an ex ante HRIA of an entire trade agreement could be done well, it would still only give an idea of potential impacts at one point in time, rather than give a realistic indication of impacts over time as the context shifts.
- Human rights should be a driver of, not just the breaks on, trade policy: Perhaps the most important reason ex ante HRIAs cannot be the only tool we use to inform trade policy is that HRIAs, by their very nature, tend to be reductionist in their approach – limited to avoiding bad outcomes or even looking to potential future violations of human rights law, instead of proactively pushing trade negotiators to design policies that are geared to facilitate the delivery of better human rights enjoyment. Sustainable development, climate change and human rights should be the drivers of trade and investment policy, not just a break on, or a filter through which we put traditional commercial approaches.
In addition to these points, a participant in the Chatham House discussion raised the concern that HRIAs focus on one agreement and therefore do not assess cumulative impacts of trade and investment policies in any context.
Where does this discussion leave us? As Harrison would argue, HRIAs which are focused on very discrete provisions and discrete impacts certainly appear to be one valuable part of informing trade policymaking about human rights. To be sure, identifying the contours of when an ex ante HRIA makes sense, and to what end, is a useful next step in this work.
But this leaves a larger question unanswered: What are the other tools and approaches that can be developed to ensure that improving the enjoyment of human rights globally is a driver of trade policy?
While I do not have the answers, there might be at least a couple of ways to begin to think about this. One potential starting place would be for States to embed specific human rights objectives into their plan for economic development, and then, they can design trade policy to achieve the desired changes. The result of this approach may be piecemeal trade provisions that help States ensure certain improvements or at least protections from human rights harms. Another approach could be to embed trade policy with human rights values. For example, States could ensure that their trade policy: (1) places the well-being of the individual at the centre of economic development objectives; (2) drives equality and non-discrimination in access to economic and social opportunities; (3) enhances meaningful participation of individuals in decisions that affect their lives and well-being; and (4) improves adherence to international human rights standards. Starting with these higher-level values may appear to be more holistic an approach, but moving from values to individual trade provisions is another challenge entirely.
There is an urgent need to understand how best to make human rights a driver of trade policy, and it is a question that would benefit from engagement with civil society, academics, researchers, companies and government policy makers. As part of this understanding, it will be important to clarify and refine thinking around when and how HRIAs can bring a meaningful contribution to trade policy making.